Hon. Truett Smith Opinion‘Ro.0-241~’

DistrictAttorney 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,~ togetherwith other questionsincidental thereto,has been receivedby ~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 officerbut they prefer to spay,

each county its.:pro .rata part, out of the availablefunds 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 availablecounty funds .wit,hout the levying of a tax as provided In Art. 71$5a,. for. employinga special officer for the purposesmentioned In the first paragraphabove.? :.

,. : ~?.

“2. Could such of

fic.er user& at the time as a deputy sheriff in ‘morethan .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 ‘thetreasury 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 depositedby 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 toHon. Truett Smith, page 2

whom payable,keeping In mind that four counties are involved." Under constitutional sanction,the Legislaturehas delegatedto the counties of this state, acting through the commissioners’

courts, certain authority In various matters. Their powers 'areonly those expresslyor impliedlyconferred upon them by the constitution and the statutes of Texas, and the authoritythereunderis strictlylimited to that conferred either expresslyor 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 (reversedon 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 describedin your,.letter; In-the'manner

therein set out. The specificpurpose describedmust, if at all, be controlledby 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 deputiesand their,appolntmentsArticle 6869,dnd:Article W; R.C.S., and amendmentsthere 4: o,.~which

will-be noticed

. With referenceto 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. ,326end 327: flOffices

are createdby 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 prescribedmanner. ***It Citing - DANIEL VS. EUTCHESON,4 CIV. APP. 239, 22~S.W. 278, (reversedon other points :22S*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 I court of the ~four countiesIn 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, appointedunder the above noted statutes,Akcles 6869 and 3902, R.C.S., and the amendmentsthereto, 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.toany .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~lectionand 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~placedupon the ballot. at any general or speclal.electlon~ or at-any primary : electlonwhere candidatesare selectedunder’primaryelection 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,

investedby law with some portion of the sovereignfunctions 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 statutesand the cases construing same, no person is eligibleto any state, county,precinct or municipal office, Includingthe 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 of1 precinct or municipalityIn icer..,+! .-,-A

~-
Hon. Truett Smith, page 4

We conclude, then, that a four~countyoffice, as proposed,if created,would have no sanctionof law, and, furthermore that any appointeeappointedunder the general laws, or under Article 7l55a, could serve as such only In the county of his residenceand 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 answeringof yours questions (3) and (4). We merely point out that any individualemployedby the ranchers of the four counties,Irrespectiveof the ~method of,paying his salary,would serve only under a private employment contract,his activitiesand 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