Hon. Truett Smith Opinion ‘Ro. 0-241~’ 

District Attorney Re: Creation of the iob of soeclal 

Tahoka, Texas 

Dear Sir: 

Your 

officer to work Sn four counties to 

;g;;L.gate and apprehend cattle 

. 

request for .an, op,lnion involving ‘the above ‘questlon,~ together with other questionsincidental thereto, has 

been received by ~this department. ‘~ 

Your letter reads as follows: ..: 

;. 

Vour count&s ‘on &e &&s:havb under consideration a plan to employ a. spe.clal~:offlcer ,to work in 

the four+ounties to Investigate. and apprehend, cattle 

thieves and other theft cases. They do not wish to 

try to levy a tax as Is provided In Article 7155a B.C. 

S. to pay for. the services of. such officer but they 

prefer to spay, each county its.:pro .rata part, out of 

the available funds of,,the county.. I will thank you 

to give me your opinion on the matters hereinabove set 

out. 

“1. Can a Commissioners court legally pay out 

from any available county funds .wit,hout the levying 

of a tax as provided In Art. 71$5a,. for. employing a 

special officer for the purposes mentioned In the 

first paragraph above.? :. 

,. : ~?. 

“2. Could such of fic.er user& at the time as a 

deputy sheriff in ‘more than .one :county? 

“3. In the event the counties could. not legally 

pay out money to employ such,offlcer under ‘1’ above, 

then could rancher.s pay $nto ‘the treasury of the counties, into some special fund, the amount of money 

that would be required to. employ such officer and t,he 

county then pay out such money so deposited by ranchers to such special officer. 

~‘14. In. the event :suchcould, be done as stated 

under ‘3’ .above., would It ba,.necess,ary for such special officer to make a bond, if so, the amount and to 
Hon. Truett Smith, page 2 

whom payable, keeping In mind that four counties 

are involved." 

Under constitutional sanction, the Legislature has 

delegated to the counties of this state, acting through the 

commissioners’ courts, certain authority In various matters. 

Their powers 'are only those expressly or impliedly conferred 

upon them by the constitution and the statutes of Texas, and 

the authority thereunder is strictly limited to that conferred 

either expressly or by fair or necessary impllcation.~ 

11 TEX. JOR. at p.p. ,562 through 566, inc.; CHILDBESS 

COUNTY vs. STATE, 92 S.W. (2d).lOll; GULF BITULITHIC 

CO. vs. NUECES COUNTY 297 S.W. 747 (reversed on other 

grounds 11 S.W. (2d) $05); LASATEB vs. LOPEZ, 217 S.W. 

373. . . ‘:, 

qs : ,“. :; :, ,,. “~~;~~~~.,:.;~..;,. ‘ ’ ,,’ r. .j. ., 

There is no authority:inthestatutes~for'~the~commls~ 

sioners' court to legally pay out the, funds of the county for 

the purposes described in your,.letter; In-the'manner therein 

set out. The specific purpose described must, if at all, be 

controlled by particle 7155a; Xi.C.8. ;'!fn:that.:statut~e, alone, 

rests the authority of ~the'commisslone'r~oourt:.to,pay any special officer for the purposes'%ndlcated In yourletter snd set 

out in such statute. 

Of course, there are'the general,statutes pertaining 

to deputies and their,appolntments Article 6869,dnd:Article 

W; R.C.S., and amendmentsthere 4: o,.~which will-be noticed 

. 

With reference to your second question, It must be 

noted In the first place that the ,offlce which it ,is desired 

create, according'to your ~lette~r does not exist by creation 

law. '&e quote from TEX:JUB, Voi. 3&i at p.p. ,326 end 327: 

flOffices are created by the~law and none can ex1st except by Its sanction. It is a settled principle 

also that an office comes into existence only when created in the prescribed manner. ***It Citing - 

DANIEL VS. EUTCHESON, 4 CIV. APP. 239, 22~S.W. 278, 

(reversed on other points :22 S*W. 933)’ 

BENNETT vs. CITY OF LONGVIEW, tCIV. APP.) 268 S.W. 

. 

CITY ~+.N$7TOEIO vs; COULTRESS, (CIV. UP.) 169 

. . . 

There would be no legal sanction of such proposed action of the commissioners Icourt of the ~four counties In creating a special office; the holder of whlch,.office to work In the 
-... I 

_I. ,A 

Hon. Truett Smith, page 3 

four counties with official character. 

Furthermore 

: 

were a deputy’sherlff ,-or more than one, 

appointed under the above noted statutes, Akcles 6869 and 

3902, R.C.S., and the amendments thereto, or;for that matter, 

under Article 7l55a, supra, such appointee; or appointees, 

could serve as such In only one county,‘and~could not serve as 

such in the four counties. 

Article 2927, Revised Civil Statutes, 1925, provides: 

“No person shall be eligible .to any .State, county, 

precinct or municipal office in this State unless he 

shall be eligible to hold office under the Constitution 

of this State, and unless he shall havg resided In this 

State for the period of twelve months and sixmonths In 

the county 

fers hlmse ;I 

precinct, or municipality, in whfch he off as a candidate, next prece~dlng auy general 

or special e~lection and shall have been an actual bona 

fide citizen of s&l county, precinct ;” or municipality 

for more than: six months. No person InelIgIble .to ~hbld 

office shall ever have his name~placed upon the ballot. 

at any general or speclal.electlon~ or at-any primary : 

electlonwhere candidates are selected under’primary election laws of this State; and no such Ineligible candldate shall ever be voted ucon. nor have votes counted 

for him, at any such gene&, special, or 

tlon.m 

primary elecAL. vs. STATE, 

Also see Article 2928, R.C.S., 1925. 

We quote from the case of &lJRRAY, ET 

67 S.W. (2d) 274 as foilowsr 

“It is well settled that a deputy sheriff is a public officer. TOWNS vs. HARRIS, 13 TEX. 507; 46 COR.JUR. 

p. 1062. He is, invested by law with some portion of the 

sovereign functions of the government, to be exercised 

by him for the benefit of the public, WECHF,M, PBBLIC OFFICERS, 8 1; STATE VS. BUS, 135 MISSOURI, 325, 36 S.W. 

636, 33 L.R.A. 616." 

Under the above quoted statutes and the cases construing same, no person is eligible to any state, county, precinct 

or municipal office, Including the office of deputy sheriff, unless he shall have resided in the state for the period of twelve 

months and six months in the county 

which he offers to serve as such of 1 

precinct or municipality In 

icer. 
.,+! .-,-A 

~- 

Hon. Truett Smith, page 4 

We conclude, then, that a four~county office, as 

proposed, if created, would have no sanction of law, and, 

furthermore that any appointee appointed under the general 

laws, or under Article 7l55a, could serve as such only In 

the county of his residence and appointment, and could not 

serve as a deputy sheriff in more than one county. 

Our answer’ to your questions (1) and (2) renders 

unnecessary the answering of yours questions (3) and (4). 

We merely point out that any individual employed by the ranchers of the four counties, Irrespective of the ~method of, paying his salary, would serve only under a private employment 

contract, his activities and his office being of no official 

character. 

Trustine that the koregoing answers your questions 

satQifactorlly, we remain 

APPROVEB SEP 20, 1939 

/s/ Gerald C. Mann 

A TTOREEY GEI@RAJL. OF T-AS 

APPRO@B: OPLBYOB COWWITTEE 

BY: .BWB, CRAYRMAB 

WmJF:ob:wb 

Yours very truly 

@.T.ORNEY GENERAL OF ,TEXAS 

By /s[ Wmr, J.,,Fannlqg 

Wm. .J. Fanning, Assistant