I -. ,

E *a ORNEY GENERAL

OFTEXAS

HonorableV. P. Sexton Coiinty Attorney Orange County Orange, Texas

Attention: Hr. 3.IT.Adams

Assistant

Dear Sir: OpinionNo. o-5968 -~ Re: Authority of Constable of Ora’bge County to appoint deputies ana incur allowable expenses of offioe.

We have received your recent pequest for an opinion on the following subjectz

Authority of Constable of Orange County to appoint deputies and operate his office upon an expense account to be allowed by the Commlssloners Court, to the same extent as the sheriff.

Orange County has a population of 17, 382, according to the 1940 Federal Census, and Is operhtting on a fee basis in the compensation of its county and precinct officers,according to the records of the State Comptroller’sOffice.

Article 3902,Vernon’s Annotated Civil Statutes, provldes, In substance; thatwhenever any dlVtriCt, county or precinct offFoer requires the service of deputies such officer shall apply to the CommissionerstCourt for authorltg to appoint such deputies, and that such court shallmake its order authorlzlng such appointment and fix the compensatfon, to be paid suchdeputies and determine the number to be appointedas in the discretion of said oourt may be proper. ,(‘, ~,’

Article 687ga, Vernon’s Annotated Civil Statutes, reads, in part, as follows:

“Sec. 1. The duly elected Constable in eaoh Justice Precinot having a eltg or town of less than eight thousand f8;000)population according to the precedingFederal Censusmay appoint 6ne (1)Deputy and no more; and each Justice PreoinctHonorable W. P. Sexton, page 2

having a city or town of eight thousand (8,000)and less than forty thousand (40,000)population accordi to the precedingFederal Censusmay appoint two (3 Deputies and no more*and in each Justice Precinct having a town or city of forty thousand (40,000)population or more accordi ingFederal Censusmay appoint five"i to the preced5) Deputies and no more, and each and every instance saidDeputy Constables shallqualify as required ofDeputy Sheriffs.

"Sec. 2. When the Constable In each and every Instance named and described in the preceding section of this Act shalldesire to make appointment of a Deputy orDeputies, as the casemay be, said Constable shall firstmake written application to the Commlssloners' Court of his County showing thatit is necessary for such Constable to have theDeputy orDeputies requested In order to properly handle the business of his office .originatingin the Precinct lnwhich such Constable has been eleeted,gfvlng the name of each proposed appointees; and if the Commissioners'Court shall find that the Constable is in need of theDeputy orDeputies requested to handle the business originating in his Precinct, then and In that event, and in that event only, the Commissioners' Court shall approve and confirm the appointment of the Deputy or Deputies provided by this Act."

Article 3902, at the time of Its passage having substantially the sameprovisionsas po?nted out herernabove,was enacted In the form of an amendment by the 42nd Legislature in Regular Session and approved May 26, 1931, (GeneralLaws of Texas, 1931, Chap. 214, pe 364).

Thereafterat the same session, the said 42nd Leglslature enacted saidArticle 6879a, which was approvedMay 27, 1931 (GeneralLaws of Texas, 1931, Chap. 280, p. 503). In the case of State v. Johnson, 52 S.W, (2d) 110 (writdismissed), itwas said in regard to Articles 3902 and 6879a, as follows:

"Twodays after the passage of article 3902,

an amendment was passed thereto,~article68,79a, which does not affect the provlsi~ons of the former, except to provide for the number of deputies that

can be appointed. I

. e *'I

Therefore, it seems that the appointment of deputy constables inyour county should be made under'authorlty of both saidArticles (3902and 6879a), and the number of deputies limited as provided in Section 1, of saidArticle 6879a.Honorable W. P, Sexton, page 3 o-5968

As to expense accounts and expenses of office, in regard to the constable and sheriff of your county,we refer you to the followingarticles:

Article 3899,V. A. C. S., provides, in part, as follows:

ure iffaiff;;,the

close of each month of his teneach officer named herein who 18 compensated 0; a fee basis Shallmake, as part of the report now required by law, an itemized and sworn statement of all the actual~andnecessary~expensesFncurredby him in the conduct~ofhis office such as stationery, stamps, telephone,premiums on offFeialslbonds, including the cost of suretybonds for his deputies, premium on fire, burglary, theft, robbery insuranceprotectingpublic funds, traveling expenses, end other necessary expenses; provided, t.hatin addition to the officers named herein, the county treasurer, county auditor, eountg road eommlssioners,County school superintendent, and the bide and animal inspector shall likewise make a report on the premiums on officials' bonds, including the cost of suretybonds for any deputies, and saidpremiumsshallbe subject to payment out of the fees of safa office, as herein otherwiseprovided for the officersnamecl; and provide3.further that if any of the officers so designated aYe on a sala?grather than a fee basis, then all suchbond premiums for officers and their deputies shall be paid from the General Fund of the county, The CommissionersCourt of the county of the sheriff'sresidencemay, upon the written and sworn application of the sheriff stating the necessity therefor,pUrchase equipment for a Bureau of Criminal Identiff@atlon such as cameras, fingerprint CaPaS, inks, chemicals,microscopes,radio and laboratory equipment, filing Cards, filing cabinets, tear gas, and other equipment inkeeping with the system in use by theDepartment of Public Safety of this State or the United States Department of Justice and/or Bureau of Criminal Identlfication. If such expensesbe Lncurred In connection with any particular case, such statement shall name such case. Such expense account shall be subject to ,the

audit of the county auditor, if any, otherwise by the CommissionersCburt; and if it appears that any item of such expensewas not incurredby such officer or such itemwas not a necessary expense of office, such item shallbe by such auditorHonorableW. P. Sexton, page 4 o-5968

or court :

rejected, invhich case"the collections of

-._. -. such itemmay be adjudicated Inany court of competent jurisdldtlon. The amount of salariespaid to assistants and deputies shall also be clearly shownby such offycer,glovingthe name, position, and amount paId each; andln no event shall any officer show any~greeter amount than actually paLd any such assistant or deputy. The amount of such expenses,/tbgetherwith the amount of salariespaid to assistants,deputies, and clerks, shall be paid out of the fees earned by such officer. The CommissionersCourt of the county of the sheriff'sresidencemay, upon the written and sworn application of the sheriff stating the necessity therefor,allow one or more automobiles to be used by the sheriff in the discharge of his offlci.al

duties, which, Lf purchasedby the county, shallbe bought in the manner prescribedby law for the purchase of suppliesand pald for out of the General Fund of the county, and they shall be and remain the property of the county. The expense of maintenance,depreciation, and operatlon of such automobiles as may be allowed, whether purchased by the county or owned by the sheriff or his deputies personally, shallbe paid for by the sheriff and the amount thereof shall be reported by the sheriff, on the report above mentioned, in the samemanner as hereinprovided for other expenses. As,amended,Acts 1941, 47th Leg., P. 1390, chap. 629, FJ1."

Article 3899b,W. A.C.S,, provides, in part,as follows:

%ection 1. There shall be allowed to County Judges, Clerks of theDistrict-and County Courts, Sherlffs, County Treasurers,Tax Assessors and Collectors, such books, stationery, Includingblank bail bonds and blank complaints, and office furniture as may be necessary for their offices, to be paid for on the order of the Commissioners Court out of the County Treasury; and suitable offices shall also be providedby the Commissioners Court for said officers at the expense of the county. And such books and stationeryas are necessary in the performance of their duties shall also be furnished Justices of the Peace by said CommIssioners Court. Provided all purchases hereinmust be approvedby CommissionersCourt, and must he made under the provisions of Article 1659,Revised Civil Statutes of Texas, 1925,"Honorable W. P. Sexton, page 5 o-5968

You will note saidArticle 3899b. that constablesare not mentioned in

Article 3891, follows : v. A. C. S., provides, in part, as

"Eachofficer named in this Chapter shall first out of the 'currentfees of.his office pay
or be paid the amount allowed him under the provisions of Article 3883, togetherwith the salaries of his assistantsand deputies, and authorized expensesunder Article 3899, and the amount necessary to cover costs of premium on whatever suretybond may be required by law. If the current fees of such office collected in any year be

more than the amount needed to pay the amounts above specified, same shallbe deemed excess fees, and shall be disposed of in the manner hereinafter provided."

The authorized expenseswhich may be deducted under Article 3899, supra, are such expenses as are enumerated therein, and only those expenseswhich are authorized under the statute can be deducted. Such expenses are to be paid from fees earnedby the officers,and are allowed to both, constables and sheriffs.

The i~tems

of expensementioned inArticle 3899b, supra, , are allowed only to the officers thereinmentioned by the express terms of said article, therefore, constableswould not be allowed such expenses.

Trusting this is satisfactory,we are

Yo.urs very truly

ATTORNEXGEI\TERAL

OF TEXAS

By s/Rcbert L. Lattimore, Jr Robert L. Lattimore, Jr.

Assistant

RLL:fo:wc

APPROVED APRIL 29, 1944 s/Gee. P. Blackburn ATTORNEY GENERAL OF TFXAS

Approved Opinion CommitteeBy s/BWS Chairman