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                         E
                                   OFTEXAS




    Honorable Nit L. Ladner
    County Auditor
    Demtt county
    Cuero. Texas

    Dear Sir                              Opinion No. O-3752
                                          Rer A deputy sheriff'in a salary
                                               aounty cannot 66rve on a fee
                                               basis. II6cannot be a grand
                                               jury bailiff.

             Your request for opinion ha6 been received and ca~fully con-
    sidered by this department. W6 quote from your request a6 follows:

                "Kindly give me your opinion on the following; A
           Spatial Deputy appointed by the sheriff with the approval
           Of the CommiSSiOn6rs Court, 66rVing On a f6S basis i6
           also acting as District Court Bailiff r606iVing a Distriat
           Court Bailiff's pay.

                 "The question has been r6ised whether this Special
           Deputy is entitled to hi6 fees in a County Court Case
           during the tim6 he is tiotivelyserving and drawing hi6
           pay 6s District  Court Bailiff?"

                Section 13 of Article 39126, V.A.C.S., read6 in part as follows:

                'The Commi66ioner6~ Court in counties having a popula-
           tion of twenty thousand (20,000) inhabitants or more. and
           less than on6 hundred and ninety thousand (190,000) inhab-
           itants aooording to the last preceding Federal Census,        is
           hereby authorized and it shall be its duty to fix the
           salaries of all the following named officers. to wits
           sheriff, as8668or and oollaotor of taxes, cOunty judge,
           county attornsy,        inoluding criminal district attorneys
           and county    attorneys     who perform the duti6s of di6trict
           attorneys, district clerk, oounty clerk, treasurer,        hid6
           and animal inspector. Eaoh of said offioers shall be
           paid in money an annual salary in twelve (12) equal in-
           stallments of not less than the total 6Um earned as oom-
           pansatioa by him in hi6 official capacity for ths fiscal
           year 1936, and not more than the maximum amount allowad
           such officers under laws 6xisting on August 24, 1935; +**"
                Section 3 of Article 39126, V.A.C.S. reads a6 fOllOW6r
Honorable Nio :. Ladner, peg" ::           Cm;;752



         .Ir all ~88~s T?:here
                             the Missioners'    Court shall
   have determined that county officers or precinct officers
   io such county shall be compensated for their services by
   the payment of an annual salary, nsither ths Ztete of Texas
   nor any county sha?l be charged with or pay to any of the
   offioers so compensated, any fee or commission for the
   performance of any or all of the duties of their offices
   but such officers shell receive said salary in lieu of all
   other fees, comnis~im6 or compensation whioh they vould
    otherwise be authorized to retain; provided, however, that
   &he assessor snd collector of taxes shall continue to col-
    lect antiretain for the benefit of the Officers' Salary
   Fund or funds hereinafter provided for al.1fees and com-
   missions ~hioh he is authorized under law to oolleat; and
    it shall be his duty to account for and to pay all such
   monies rsaeived by him into the fund created and provided
    for under the provisIons of this ActI provided further,
   that the provisions of this Section shall not affect the
    payment of cost6 in civil oases by the State but all such
    cost6 so paid shall be accounted for by the officers ool-
    letting the same, 66 they are required under the provisions
    of this :ct to account for fees, oommi66ion6 and 006t6
    collected from private parties."

         Section 6 of Article 39120, V.A.C.S.. reads as followst

         :'Itsha1.lbe tho daty of all offioers to oharge and
    collect ir th6 manner authorized by law al1 fess and acm-
    miscixs xhioh 'irep6nnittsd by lswto bo asssssed6rddaol-
    lected for all oWioia1 aervioe performed by them. As and
    wher:suah fess are collected they shall be deposited in
    the (1fficers ':alaryFund, or funds provided in this Act.
    In Event the !:cmmissioners'Court finds that the failure
    to collect any fee or commi.saion~86 due to :neglocton the
    part;of the officer charged,rith the responsibility of
    coi!ect,ingsame, the amount of such fee or commission shall
    be (Leductedfrom the salary of such officer. Before any
    such doductioziis made, the Commissioners' Court shall
    filrr~ish
            such officer with a;>itemized statement of the un-
    coll,eotedfess with which his account is to be charged,
    ahd shall not!.fysuch offioor of the time a?? pIso for a
    hearing on ssmc, to determine whether such officer was
    guilty of negl:geroe, which tf!;?fnr hearing shall be at
    least tan days subsequent of the dste of notice. UnleS6
    an officer is charged by lsw with +,i-e
                                          responsibility of
    collecting fees, th? Commissioners' Court shall not in any
    epent make any deductions from tha suthorised salary Of
    such officer.'~

         The population of Gebitt County, Texas, looording to the 1940
Federal Census, is 24,938 inhabitants. 'Ahereforeit is mandatory under
Honorable Mio L. Ladner, page 3                  O-3752



nectior,13 of Article 3912e, V.A.S.S., that the Sheriff of Deiritt
County be compensated upon a salary basis.

         Opinion No. O-1565 of thia department, holds, among other
things, that in salary counties deputy sheriffs must be paid on a
salary basis and that the Commissioners' Court is prohibited from
fixing the compensation of a special deputy sheriff at "whatever he
earns and collects in fees." We enclose herewith a copy of said
opinion for your information.

         There is no such office as "District Court Bailiff". Perhaps
you have in mind the following provisions of Article 3933, V.A.C.S.:

         "For every day the Sheriff or his deputy shall
    attend the District or kunty Court, he shall receive
    Pour Dollars ($4) a day to be paid by the county for
    each day that the Sheriff by himself or a deputy shall
    attend said Court."

         The above provisions would apply   to a sheriff in a fee county
but under the plain provisions of Section   3 of Article 3912e, V.A.C.S.,
supra, e sheriff of a salary county would   be prohibited from charging
or collecting the $4.00 per diem from the   county.

         Or perhaps you may have in mind the question of whether the
special deputy sheriff can also serve 88 a Grand Jury Bailiff. Ihis
depsrtmant has repeatedly ruled that a Deputy Sheriff cannot serve as
a Grand Jury Bailiff. See opinions Nos. O-122 and O-373 of this de-
partment, copies of which are enclosed herewith for your information.

           You are therefore respectfully advised as follows:

         1. A Special Deputy Sheriff of Dewitt County (a salary county)
is not nntitled to any fees. He c8n be compensated only on a salary
basis by the Conxnissioners'Court and be paid from the Officers' Salary
':urid
     of the county.

         2. There is no such office as "District Court Bailiff". A
Special %puty Sheriff of DelrittLou&y   cannot be paid anything by the
county for waiting on the %strict Court, nor for waiting on the County
':ourt.

           3.   Such Special Lkputy cannot legally serve as a Grand Jury
Pailiff.
                                             Veq truly-yours
"~J~":.ax:wc                             ATTORNEY GEIWRAL OF TMAS

At'r'H'3V~,:l
         J'!!;..Y
              22 , 1941                      By s/Y&n.J. Fanning
 s/Grovew Sel:.ers                                k. J. Fanning
FIRST ,~:ib~lS'l'kNT
                ATTORXY    G::N&RAL                    Assistert
I+pprovodOpinion Commit-teeBydyNB      Cheinan
