Honorable A. A. Miller opinionITO. O-1206 CountyAttorney Hcwton county Re':, May fees undqrArticle 1055, Newton,Texas Co& 'of Criminal

Procedure,

as amended,

46th legislature,

be peid.by

warrant out of the jury Dear Sir: fund of the county.

Your requestfor an opinionof this Department under date of July 29, 1939,

reads substantially 8s follows:

Under Article 1055, as amended, by the 46th Legislature, House Bill 190.

205, authorizing

the county clerks to "issue his warrants
on ,the county treasurer

.in favor of such officer, to be paid out of the road a$ bridge fund, or other funds not otherwise appropriated,"

can the county clerk issuehis warrant to be paid out of the jury fund, if there be an excess?

The above portionof Article 1055, Code of Criminal Procedure,
as amended,

which is correctly stated in your request, authorizes

such fees to be paid out of the road and bridge fund or other funds not otherwise

appropieted. The jury fund of the county is a constitutional fund,being made up of taxes leviedunder the constltutionsl imitsand certainstatutory

fundswhich are specifically appropriated

and dedicated to specific

uses.
Article 1628,Revised Civil Statutes, 1925, relating

to the jury ~fund,

provides:

?Phe funds received by the county treasurer shall.be

classed
as follows,

and shall be appropriated, respectively,

to the payment.of all claimsregistered in the first, second and third classes: (1) All jury fees, all money received from the sale of estrays, and all occupation taxes."-

Article 1626,RevisedCivil Statutes,1925, claisifyhg all cla~ims againste county,

directs that all jury scrip and scrip issued for feeding jurorsare payableout of funds so received of the first class.

Article 1630,, RevisedCivil Statutes, 1925, provides:

"The commissfoners' court by en order to that effect may transfer

the money in hand from one fund to another, as it may deemHon. A. A. Miller, pege 2 (0-1206) necessary and proper,exceptthat~the funds which belong to class first shall never be diverted from the paymentof the claima registered in class first, unless there is an excess of such funds." (Underscoring ours)

The SupremeCourt in Carroll v. Williams,202 S. W. 504, held that the foregoing statutes only appliedto those fund8 purely statutory and that Article 1630, supra, shouldnot be held to embraceany of the five classesof county fund8 specifically designated

in Section 9, Article 8, of the Constitution of Texas.

Any effect to be givenArticle 1630,supra, es to the transfer of county fund8 shouldbs con8idered in the light of the opinionof Carroll-f.

Williams,

euprs, and cases cited therein which furnishu8 the only authorities involving this statuteand its effect underArticle 8, Section 9, of the Constitution relatingto the transfer of county funds. In pasein g on whether or not a legal excess would exist as would authorize

a transfer

and if 80, into what funds, constitutional
or special,

asme may k transferred, all factsnecessary to present to this department

the actual condition of the county's

finsnc88;

the stetu8 of each fund measured by the current,demands chargeable

against
same and th8 varioustax rates and assessments effecting

the particular funds would have to be considered. The single proposition remains that until ruch legal transferis made, any excess remainsa part of. the jury fuud~and

by the Constitution and statutes,

such fuud is appropriated for specific purposes.

In viewing authorities cited herein, it appear8that the following

settledrules governsuch transfers, keeping in mind that such cla88e8of funds authorized by the Constitution and statutes are appropriated

to the several classified purposes;

first, the commis8ioner8' courtmay not, by any unauthorized classification,

defeat the payment of just claims or destroy the right of holder8 of registered clais; ,, underArticle 1627,Revised Civil Statutesof 1925, to have their claima paid out of the appropriate funds in the order of registration. Clark and Courts v. San JacintoComty, 45 S. W. 315; second, where a transfer is made into a constitutional fund,which vi11 swell the expenditures therefrom

for any one year beyond the limitation of the tax rate leviedand moneys raised for the purposes for that particular cl.ss8 funds, such transfer would be prohibited. Carrollv. Williams,supra,

It is, therefore,

the opinionof this department that the county clerk is not authorized to issuehis warrant on the county treasurer,

to be paid out of the jury fund, in favor of any officer for fees accruing

underArticle 1055,Code of Criminal Procedure,

as amendedby the 46th Legislature. Whether a legal excess can be determined~toexist in the jury fund and a condition exists authorizing

the transfer

of such excessand intowhat fund, depend8upon all facts developed

showing the true condition of finances

of a county including the status of the particular fund affected.

Yours very truly APPROVEDCCT 4, 1939 AITOPKEKCEIERALOFTKKAS WMK:IM:br Is/ W

. F. Moore By /a/ Wm. J. R. King Wm. J. R. King FI2STASSISTAIiTA!lTORKKI @NEPAL Assistant