October7,1971

Honorable Roger M. Dreyer County Attorney 204Christian Building 711 St. Joseph Street Gonzales, Texas 78629 Opinion No.M-969

Re: Authority of county to lease two-way radios for adeputy sheriff and related questions.

Dear Mr. Dreyer:

Your opinion request contains a series of questions which may be consolidated andparaphrased as follows:

1. May the county commissioners lease two-way radio equipment foruseby the sheriff?

2. May the countv commissioners lease orpurchase and maintain two-way radio equipment for thepersonal vehicles of the sheriff and hisdeputies, including special deputies?

3. May the county commissioners lease two-way radio eaujpment for the automobile of a **game**management officer **employed** by the Parks andWildlife Department?
The authority for the county commissioners topay fpr the expenses incurred by a sheriff is found inArticle 3899, Vernon's Civil Statutes, which reads **in** part (b):

"(b) Each officer named in thisAct, where he receives a salary as compensation forhis services, shall be entitled andpermitted topurchase or charge tohis county all reasonable expenses necessary in the proper and legal conduct of his office, premiums on

1AllArticles referred toareVernon's Civil Statutes unless otherwise stated.

-4736-Bonorable Roger M.Dreyer,page 2 (M-969)

officials' bonds,premiums on fire, burglary, theft, robbery insurance protecting public funds, and including the cost of surety bonds forhis deputies, provided that expenses incurred forpremiums on officials' bonds for the county treasurer, county auditor, county road commissioners, county school superintendent, and the hide and animal inspector, including the cost of surety bonds forany deputies of any such officers, **may be**  **al** so included, and such expenses to bepassed on, predetermined and allowed in the **time** and amount, asnearly as possible, by the Commissioners Court once each month for the ensuing month, upon the application by each officer, stating the kind, probable amount of expenditure and the necessity for the expenses of his office for such ensuing month, which application shall, before presentation to said court, first be endorsed by the county auditor, if any, otherwise the county treasurer, only as towhether funds are available forpayment of such expenses. The Commissioners Court of the county of the sheriff's residence **may,** upon the **written** and sworn application of the sheriff stating the necessity therefor, purchase equipment for a Bureau of Criminal Identification, such as **cameras,** fingerprint cards, inks, chemicals, microscopes, radio and laboratory equipment, filing cards, filing cabinets, tear gas and other equipment, inkeeping with the system in usewith the Department of Public Safety of this **State, or**  the United States Department of Justice and/or Bureau of Criminal Identification.

"Suchpurchases shall bemade by each officer, when allowed, only by requisition inmanner provided **by** the county auditor, if any, otherwise by the Commissioners Court. Each officer, shall, at the close of each month of his tenure of office, make an itemized and sworn report of all approved expenses incurred byhim and charged to his county, accompanying such report with invoices covering suchpurchases and requisitions issued by him in support of such report. If such expenses be incurred in connection with anyparticular case, such report shall name such case. Such reports, invoices, and requisitions shall be subject to the audit of the county auditor, if any, otherwise bv the Commissioners Court, and if it ap-

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pears that any **item** was not incurred by such officer, or that such **item** was not anecessary or legal expense of such office, orpurchased upon proper requisition, such item shall be by said county auditor or court rejected, inwhich case thepayment of such **item may**  be adjudicated in any court of competent jurisdiction. All such approved claims and accounts shall bepaid from theOfficers Salary Fund unless otherwise provided herein.

"TheCommissioners Court of the county of the sheriff's residence may, upon thewritten and sworn application of such officer! stating thenecessity therefor allow one or more automobiles tobe used by the sheriff in thedischarge of official business, which,if purchased by the county shall be bought in themanner prescribed by law for thepurchase of supplies andpaid for out of the General Fund of the county and they shall be reported and paid in the same manner asherein provided for other expenses.
"Where the automobile or automobiles are owned by

. the Sheriff or his deputies, they shall be allowed four (4)cents foreachmile traveled in thedischarge of officalbusiness, which sum shall cover all expenses of themaintance, depreciation, and operation of such automobile. Such~mileage shall be reported andpaid in the samemanner prescribed for other allowable expenses under theprovisions of this section. No automobile shall **be** allowed for any Deputy Sheriff except those regularly employed inoutside work. It shall be the duty of the County Auditor, if any, otherwise the Commissioners Court, to check the speedometer reading of each of said automobiles, owned by the county once each month and tokeep apublic record thereof: no automobile owned by the county shall be used for anyprivate purpose." (emphasisadded).
The commissioners court has jurisdiction and authority,lfmited to thatprovided by theConstitution or by law,but~the commissioners court has the implied power to exercise broad discretion toaccomplish thepurposes intended by any right conferred or obligation imposed. Anderson v.Wood, 137Tex. 201, 152 S.W.Zd 1084 (1941);Dodson v.Marshall, 118 S.W.Zd 621 (Tex.Civ.App.- **Waco,** 1938, error dism).

-4738-Honorable Roger M.Dreyer,page 4 (M-969)

Under statutes such asArticles 3902, 6699, and 6699a, the commissioners court is authorized, in conjunction with the sheriff, toprovide fordeputies and county traffic officers. The commissioners court isobligated to furnish transportation for the sheriff and his deputies byArticles 3902 and 6877-l. The authority toprovide transportation under these statutes includes the authority to reimburse the sheriff and his deputies for **mile** age driven inpersonal cars. The usefulness of radio equipment in law enforcement programs is recognized byArticle 3899,which alsoplaces upon the commissioners court the obligation toprovide for thenecessary expenses of operating the sheriff's office.
Two-way radio equipment is an obvious incident to effective law enforcement. Since the commissioners court is authorized to provide for all reasonable and necessary expenses of the sheriff, the cornnissionersmayprovide for thepurchase or lease of twoway radio equipment foruse by the sheriff and his deputies in accordance with theprovisions ofArticle 3899.
Sheriffs and deputies are authorized to use theirpersonal
cars in theperformance of their official duties, and the commissioners court is authorized **to** pay **mileage** expenses forpersonalvehicles. Our opinion is that the commissioners court has implied authority to **maximize** the effectiveness of that use by the installation andmaintenance of two-way radio equipment, either purchased or leased.

Your request, insofar as it applies to a special deputy, warrants special attention. The special deputy inquestion, according to the information furnished, has been appointed by the sheriff purusant toauthorization entered upon theminutes of the commissioners court. The special deputy serves without pay or mileage reimbursement landhas only parttime or **emergency** duties. This office has previously ruled that a sheriff isnot authorized to issue commissions to special deputies to servewithout offical duties orwithout compensation. Attorney General's Opinions Nos. V-20 (19471,V-1050 (1950),and R-2189 (1950). The last legislature enacted special provisions for reserve deputies to serve without pay. **(Acts** 62nd Leg., R.S.,1971, ch. 506,p. 1738, and ch. 829,p. 2531). If the special or reserve deputies are appointed in accordance with the law, the commissioners court has the discretion to determine if thepurchase or lease of **two-way** radio equipment for the special or reserve deputies is a reasonable and necessary expense of the sheriff.

-4739-Honorable Roger M. Dreyer,page 5 (M-969)



### Your thirdquestion concerns furnishing of radio equipment 

### forthe state-owned vehicle of agame management officer. This officer is employed by the Parks and Wildlife Department under Article 978f-3a,Vernon's Penal Code,and does notwork directly under the commissioners court or the sheriff. The information furnished with your opinion request indicates that the radio is desired primarily so that the sheriff canmaintain contact with the gamemanagement officer. No statutory authority expressly authorizes county commissioners or the sheriff toprovide radio equipment for agame management officer y*vho isnot employed by the county. This office has previously ruled that a sheriff is not authorized to transfer toa constable radio equipment furnished the sheriff's office. Attorney General's Opinion No. R2442 S 51 (1951). The only possible authority for furnishing the radio is theprovision of Article 3899. that a sheriff is entitled "

...topurchase or charge tohis county all reasonable expenses necessary in theproper and legal conduct of his office...;* but thisprovision is restricted to expenses relating to the conduct of the sheriff's office. The authority of a commissioners court must ultimately rest upon a constitutional or statutory basis. Canales v.Laughlin, 147Tex. 169, 214 S.W. Zd 451 (1948). Since no statute expressly or by implication gives the commissioners court or the sheriff authority toprovide radio equipment to someone not employed by the county commissioners or the sheriff, our opinion is that the commissioners court **may**not furnish twoway radio equipment to a game management officer employed by the Parks andWildlife Department.

SUMMARY

In accordance with the terms ofArticle 3899, Vernon's Civil Statutes, the conunissionerscourt is authorized toprovide for all reasonable expenses necessary in theproper and legal conduct of the sheriff's office and **may,** in its discretion, purchase or lease andmaintain two-way radio equipment:1. For use by the sheriff andhis deputies;

2. For installation and use in the personal cars of the sheriff andhis deputies when the vehicles areused in theperformance of official duties8

3. For installation or use in the personal vehicle of a special or reserve deputy sheriff when thedeputy is appointed in accordance with the law and the vehcile isused in theperformance of official duties. -4740-...

Honorable Roger M.Dreyer,page 6 (M-969)

The commissioners court has no authority to purchase or lease two-way radio equipment for use by a gamemanagement officer employed by the Parks andWildlife Department.

C. MARTIN

Prepared by Roland Daniel Green, III Assistant Attorney General

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E.Allen, Co-Chairman
Gordon Cass Max Hamilton Ben Harrison Sam Jones

SAM MC DANIEL Acting Staff Legal Assistant

ALFRED WALKER Executive Assistant

NOLA WRITE First Assistant

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