Hon. ClydeBoose Opinion No.v-908.

CountyAttorney NolanCounty Re: Authority of the ComSweetwater,Texas mlssloners~ Court of Nolan County to pay a salary to or the expenses of aVolunteer Parole Officer of Nolan County,who was appointed and commlsslone~~

by the GovDear Sir: ernor.

We refer to your recent request for an opinion. The question submitted for our consideration Is, ln substance,as follows:

Does the Commissioners' Court of ~NolanCounty have authority to use the County's.funds to pay a salary to or the expenses of a Volunteer Parole Officer ofNolan County,who was appointed and contulssloned

by the Governor?
Before we can answer your question, Itmust. firstbe deteralnedwhether there exists In Nolan County a public office, the lncumb&nt of which Is offlclally known as a Volunteer Parole Offlcer'ofNolan County. If no such orflce'~exlsts, it hecesiarlly follows there can be no such officer.

In thls,Statepublic offlcers~are createdby law and none can exist except by Its sanction. Some officesare createdby the Constitution and oth?rsby statutes. 34 Tex.Jur. 326, Public Officers, Sec.5. The Legislature Is the department of government ln which rePoses the law-making ower of the people. Terre11 v.
F 118 Tex. 237, 1 S.W.2d 786 (1929). The creation t an office is peculiarly a legislative matter. Weaver v. Commissioners1Court of Nacoxdoches Count& 13m
thai an of;lcedcornes Into existence only when created ~prlnclple by law. City of San Antonio v. Coultress, 169 S.W. 917Hon. Clyde Boose, page 2 

## (v-908)

(Tex.Clv.App.1914).

Neither the Constitutionnor the Legislature has created a public office to be filledby a person whose official title Is that of a county volunteerparole officer. It Is a well known fact that lnmost of the counties of this State there Is a board known as "volunteerparole board,"which Is composed of persons laro~n as "volunteerparole officers." So,when we speak of theVolunteer Parole Officers of Nolan County, or of any other county, the Inference Is that such an officer Is a public officer. How these term orlgfnated and came Into colnmon usage are revealedby the hlstory of their origin, as we understand It to be, which Is as follows:

Governor Jas.V. Allred,~du.rlng his adminiStratlon as Governor, 1935-1939,realized that a convict released from the penitentiary on parole or condltlonal pardon shouldbe under some supervisionupon hls return to the county inwhich he was convicted or same other county of this State towhich he was authorized to go by the Governor's proclamation releasing him from prison. Since the Legislaturehad made no provision whatever for any klnd~ot such supervlslon,he conceived the Idea of requesting one ormore reliableprivate clthens, who were interested In the rehabllltatlon of prisoners so released, to voluntarily assume certain duties pertaining to suchparolees and pardonees ln their respective counties, and to whom he could re ulre prisoners so released to report ror supervision. 't For the purpose of this opinion, It is not necessary to set forth other respective duties of the citizen and prlsoner, for theymay not have been the same ln all instances,) When a citizen advised the Governor of his wllllngness to serve In such caaaclty, the Governor notified him that he had been appointed a volunteer parole officer of the county of his residence. Such officers constituted the volunteerparole boards of their respective counties. They have performed splendid services, and It Is unfortunate that the Legislature has not given them official status.

The policy of appointing such parole officers establishedby Governor Allred has been continued by his successors in office down to the present time, for the same reasons which occasioned Its establishment in the first Instance.Hon. Clyde Boose, page

## 3 (v-908)

We are not Informedwhether It has been the uniformpolicy or practice of each Governor to Issue a commissionto each voluntaryparole officer on the form used by him for commissioningpublic officers In actordancewith the provisions of Article 3040,V.C.S. Be that as itmay, the fact that a person was Issued a commission Inwhich he was designated a Volunteer Parole Officer of Nolan County, as was done In this Instance, would be ineffectualto make that person a public officerunless such an office had been first createdby law. His status Is that of a prlv&e citizenperforming certainvoluntary duties at the request of the Governor for a worthy purpose, and for this he shouldbe highly commendedby the citizens of this State. Therefore, the answer to your question Is controlledby the provisions of the Constitution, statutes, and authorities hereinafter cited.

Section 44, Article III of the donstltutlon, provides: "TheLegislature shallprovide by law for the compensationof all officers, servants, agents and publlc ctntractors,not provided for in this Constitution.

. m
. In

## 34Texas Purlsprudence 512, Public Offlcers, Section

## 108,It is said:

"Toentitle a person to recover emoluments of an office, he must show that he Is an officer de jure, that the office has been legally created and Is In existence, and that he has been legallyplaced therein and has a legal right thereto. The statute (Art. 6828) expresslyprohibits the payment or allowance of the claim of any person Sor compensationaa an officer, unless he has been duly elected or appointed as such officer

. . . and has q\allfled as such officer according to law. (Emphasisadded)
Section 18 of Article V of the Constitution of Texas creates the commlssloners' courts, and confers upon them such powers as are granted by the Constitution and laws of this State. Such courts are courts of llmlted jurisdiction,having no authority except such as Is expressly or lmplledlyconferred by the Constitution and

statutes. Anderson v. Wood, 137 Tex. 201, 152 S.W.2d 1084 (1941); 11 Tex. Jur. 563, Counties, Sec. 36.Hon. ClydeBooee, page 4 (v-908)

Section 52, Article III of the Constitutionof Texas,provides the Legislatureshall have.nopower to authorizeany county of the State to lend Its credit OF to grant public money or thing of value In aid of, or to any Individual,associationor corporationwhatever.

Section 3 of ArticleVIII of the Constitution of Texas, reads:

"Taxes shallbe levied and colleced by gener$ laws and forpublic purposes only.

In the case of Howard v. Henderson County,116 S.W.2d 479 (Tex.Clv.App.1938 error ref.) the Court, after citing the pertinentp;ovlslons of iectlon 52, Article III, and.otherprovisions of the Constltutlon, said: "Givingeffect to llmltatlon on the Legislature to conferpower on counties andmunicipal authorities to grant public moneys to lndlvlduals,and to make contracts, the courts of this State have unlformlyrecognized that a commlsslonerst court cannot bind the county by ordering a claim to be paid, which Is not made a charge against the county, or made a contract not within the limits of theirpower. Thewant of authority 1s jurisdictional; its action ir.so doing has no conclusive or binding effect,but, on the contrary, 13 void."
When a commlrsloner3'court approve3 a claim against the county without lawful authority, its action Iswholly void. and notwlthstandlnz the fact that such unauthorized cialm was voluntarily-approvedand paid by the county. Cameron County v. Fox, 2 S.W.2d 433 (Comm. App.1928), and numerous authorities there cited.

It necessarily follows from what we have said that, in our opinion,your questionmust be answered In the negative.

SUMMARY

Public offfces can only be created by the Constitution or the Legislature. Terre11ClydeBoose, page 5 (v-908)

118 Tex. 237, 14 S.W.2d 786 (1929); Commissioners'Court of Nacog- ~~p's3~,0~'~'v14~0~i:,~~s~70 169 S.W. 917 (1914); 34 Tex.Jur. 326, Public Officers,Sec. 5.
Neither the Constitutionnor the Legislaturehas created a countyvolunteerparole office. The Commlssloners'Court or Nolan County has no authority to use county f'undsto pay a salary to or the expenses or a Volunteer County Parole Officer of Nolan County,who was appointed and comlsslonedby the Governor, for the status of a person so appointed and commissioned Is that OS a private citizenperforming certainvoluntary duties, upon request of the Governor,pertaining to the supervision of certainparolees and pardonees. Tex. Const., Art. III, gets. 44, 52; Art. V, Sec. 18; Art.VIII, Sec. 3; Andersonv. Wood, 137 Tex 201, 152 S.W.2d 1084 (1941);Howard v. HendersonCounty 116 S.W.2d 999 (Tex.. App.1938, error gef.); Cameron County v. Fox, 2 SiW.2d 433 ($oinm.App.l928J; Ar mo, 6829,v.c.s.; 34 Tex.Jur.512, P% llc Officers, Sec. 108.

Yours very truly,

ATTORNRYGRNRRALOF TEXAS

BWR:eb:mw BY

# /3---wBruce W. Bryant Assistant

ATTORNgY GENERAL