HonorabLeE. H. Griffin

CountyAttorney Young county Graham, Texas
Dear Sir; Opinion No. O-3710 Rer Are the charges of $1600 for posting notices and 7$$ per mile for each mile traveled in posting notices of the Special SenatorialElection legal charges?
Your recent request for an opinion of this department on the above stated question has,~beaa received.
We quote from your letter as follows;
"I wish to submit the followingquestion to your department for an opinion: "The Sheriff of Young County recentlyposted notices in each voting precinot.advertising the coming senatorialelection, and chargedYoung County $1.00 for each notice and 7&# per mile for eachmile traveled in posting such notioes. Is such chargea legal **one?** Young County, Texas, has a population of less than 20,000 inhabitants,and the officials are compensated on R fee basis." Articles 2950 and 2995,Vernon's Annotated Civil Statutes, read as follows;

"Article 2960. The county judge shall causenotice of a general eleotion or **any** special election to be publishedby postingnotice of election at eaoh precinct thirty days before the eleotioniwhich notice shall state the time of holding the election. the office to be filled. or the question to bevoted onl provided that in local opt,ion,

stock law and road tax elections, or any other special election speciallyprovided for by the laws of this State, the notices of election shall be given in compliancewith the laws governing said eleations respectively. If a vacancy occurs in the State Senate or House of Representativesduring the session of the Legislature, or within ten days before it convenes, then twenty days.-

Honorable E. H. Griffin,page 2 O-3710

notice of a special election to fill suchvacancy shall be sufficient. Posting notice of an election shall be made by the sheriff or a constable,who shallmake return on a copy of the writ, how and when he executed the same." "Article 2995. The sheriff or any constable for serding copies ol t!:c urder desjEnatingthe hounds of electionprecincts, or the el,eotion judges, posting notices, and for serving all otherwrits or notices prescribedby this title, shall be paid the amounts allowed by law for serving oivilprocess. For delivering election supplies to precinot judges,when they are not obtainedby such judges in person, the sheriff or constable shall be paid such amount as the commissioners courtmay allow, not to exceed two dollars for each election precinct." Article 3933,Vernon’s Annotated Civil Statutes, reads in part a5 follows:

"Sheriffsand Constablesshall receive the following fees:(1

. . . . "Postingany othernotices required by law and not otherwiseprovided for
. . . . . . .#l.OO "

. . . I
"For traveling in the service of any civil process, Sheriffs and Constables shall receive seven and onehalf (7%) cents for eachmile going and coming; if two or more persons arementioned in the writ, he shall charge for the distanceactually and necessarily traveled in the service of same.

“

. . . . u Article 3087,Vernon'sAnnotated Civil Statutes, requires the Governor to order an election in case a vacancy occurs in the representation of thj,sState in the 1Jnited States Senate, and Article 3088, Vernon's Annotated Civil Statutes,provides in part, "Every law regulating or in any manner governing elections or the holding of primaries in this State shall be held to apply to each election or nomination of a candidate for a TJnitedStates Senator so long as they are not in confiictwith the Constitutionof the United States or of any law or statute enacted by the Congress of the United States regulating the election of TTnitedStates Senators or the provisions of this law."- -

Honorable E. H. Griffin,page 3 O-3710

In the case of Nelsonv. State, 75 S. W. 502, it is stated 'by posting as required by law ismeant that the noticesmust actually be posted the requisitenumber of days before the election, is held. The fact that the notices may,have been subsequentlytorn or blown down would not affect the validity of the election.
. .It

We quote from the ease of Bighamv. state, 275 s. w. 149, as follows:
"A sheriff is entitled to such fees as the statutes authorize,and for that reason the fact that the fees allowedmay seem large in some instances or small in other instances cannot enter into a decision concerning the statutesauthorizing them. The Legislaturehas enacted the fee bill, and has fixed a maximum sum which a sheriff is entitledto receive as fees, requiring that the sxoess be paid into the county treasury.. The Legislaturehas also enaoted laws regulatingand limiting the fees of officers from time to time. The wisdom or unwisdom of these acts is r!ota matter for the court to determine." (This ease was reversed on other grounds in 260 S. W. 1062.)
Itwill be noted thatArticle 2995, supra, specificallyprovides that the sheriff or any constable shall be paid the amount allowed by law for serving civilprooess for posting notices and for serving all otherwrits and notioes prescribedby Title 50,Vernon'sAnnotated Civil Statutes.

Inview of the foregoing authorities,you are respectfully advised that it is the opinion of this department that the sheriff or any constableperforming the .above mentioned services are entitled to $1.00 fc'r

posting the electionnotices and seven and one-half cents (7$) per mile for eachmile actually and necessarily traveled in performing this service, in fee counties. However, if the sheriff receives an sx officio salary as authorizedby Artiole 3934, Vernon'sAnnotated Civil Statutes,which provides in part as follows:

"Sheriffs shall also receive the following compensation:

11

. . . "2
. For sunsaoning jurors in district and county courts, serving all election notices, notices to overseers of roads and doing all other public businessnot otherwiseprovided for, not exceeding one thousand dollars per annum to be fixed by the ccmaissionerscourt at the same time other ex officio salaries are fixed, and to be paid out of the general funds of the county;provided, that no such ex officio salary shall be allowed any sheriffwho had received the maximum salary allowed by law."Honorable E. FT. Griffin,pagq 4 O-3710

The sheriffwould not he entitled to remive the $1.00 fee for pocking the electionnotices or the 'F+cents perm'le necessary and aotually traveled in posting said election notices. Tf the sheriffreoeivesno ex officio colnpensation under nrticle 3934, supra, he would then he entitled to the aompansationas above stated.

are Trustingthat the foregoing fully answersyour inquiry,we

Yoursvery truly

AW:'>M:wc Approved by s/Grover Sellers Approved Opinion Committee By 91iR Chairman -y-