Hon. Char~les Ft.Martin CountyAuditor Harrison County Marshall, Texas

Dear Sir: OpinionNo. O-1866 Re: Under Article 3899wou‘lda constable compensated on a fee basis be entitled to deduct as an expense~of office gasoline and oll'and up-keep for his automobile for and during the year?

Your request for opinionhas been received and carefully consideredby this department.

Article 3899 (a),Revised Civil Statutes of Texas, reads in part as follows:

"At the close of eachmonth of his tenure of office each officernamed hereinwho is compensated on a fee basis shallmake as part of the report now requiredby law, an Itemizedand sworn statement of all the actual and necessary expenses incurredby him in the conduct of his office, such as stationery, stamps, telephone,premiums on officials'bonds, including the cost of suretybonds for hisDeputies, premium on fire, burglary, theft,robbery Insuranceprotecting public funds, traveling expenses and other necessary expenses. The Commissioners'Court of the county of the Sherlff's residence may, upon the written and sworn application of the Sheriff stating the necessity therefor,purchase equipment for a bureau of criminal identlflcatlon such
as cameras, fingerpaint cards, inks, chemicals, microscopes, radio and laboratory equipment, filing cards, filing cabinets, tear gas and other equipment inkeepingwith the system in use by theDepartment of Public Safety of this State or the United StatesDepartment of Justice and/or Bureau of Criminal Identification. If such expenses be incurred In connectionwith any particular case, such statement shall name such case,Ron. CharlesR. Martin, page 2 O-1866

Such expenseaccount shallbe subject to the audit of the CountyAuditor, if any, otherwiseby the Commissioners'Court; 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 shall be by such auditor or court rejected, in which case the collections of such itemmay be adjudicated in any court of competent jurisdiction......."

Article 3891,Revised Civil Statutes of Texas, reads in part as follows:

"Eachofficer named in this Chapter shall first out of the current fees of his office pay or be paid the amount allowed him under the provisions ofArticle 3883, togetherwith the salaries of hls asslstants and deputies, and authorized expensesunder Article 3899, and the amount necessary to cover costs of premium on whatever surety bond 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 shall be deemed excess fees, and shallbe disposed of in the manner hereinafter provided......."

This department has repeatedly held that a constable operatingupon a fee basis is authorized to deduct the necessary expenses incurred in performing the duties of his office includingtraveling expenses out of his excess fees of office provided he complies with Articles 3899 and,38ql,~supra. See opinion of this department dated October 11, 1937, written by Hon. JamesN. Neff, in.Vol. 378, pages Assistant Attorney General, and recorded 555-6, Letter Opinions of the Attorney General of Texas, and other opinions of this department.

"Gasoline.oii and. a reasonable amount of 'UD-keeDB5'would clearly come within the meaning of traveling expenses in this situation.

You are therefore respectfully advised that it is the opinion of this department that a constable compensated on a fee basis would be entitled to deduct from his excess fees as an authorized expense of office, the,necessarytraveling expenses, including the expense of gas, oil and a reasonable amount of "up-keep", incurredby the constable in the discharge of hIi officialduties 3899 and 3891, supra. ,provided he compliedwith Articles- -

Hon. CharlesR. Martin, page 3 O-1866

Very truly yours

ATTORNEYGENERAL OF TEXAS

By s/Wm. J. Fanning Wm. J. Fanning ,Asslstant

WJF:AW

Approved FEB 24, 1940 s/W. F. Moore FIRST ASSISTANT ATTORNEY GENERAL
Ap~oved Opinion CommitteeBy s/Bm Chairman