Honorable A. A. Miller opinion ITO. O-1206 

County Attorney 

Hcwton county Re':, May fees undqr Article 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 request for an opinion of 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 issue his warrant to be paid out of the jury fund, if 

there be an excess? 

The above portion of 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 levied under the constltutionslimits and 

certain statutory funds which 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 claims registered 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, Revised Civil Statutes, 1925, claisifyhg all 

cla~ims against e county, directs that all jury scrip and scrip issued 

for feeding jurors are payable out of funds so received of the first 

class. 

Article 1630,, Revised Civil 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 deem 
Hon. A. A. Miller, pege 2 (0-1206) 

necessary and proper, exceptthat~the funds which belong to class first 

shall never be diverted from the payment of the claima registered in 

class first, unless there is an excess of such funds." (Underscoring 

ours) 

The Supreme Court in Carroll v. Williams, 202 S. W. 504, held 

that the foregoing statutes only applied to those fund8 purely statutory 

and that Article 1630, supra, should not be held to embrace any of the 

five classes of county fund8 specifically designated in Section 9, 

Article 8, of the Constitution of Texas. 

Any effect to be given Article 1630, supra, es to the transfer 

of county fund8 should bs con8idered in the light of the opinion of 

Carroll-f. Williams, euprs, and cases cited therein which furnish u8 

the only authorities involving this statute and its effect under Article 

8, Section 9, of the Constitution relating to 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 facts necessary 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 various tax rates and assessments effecting the particular 

funds would have to be considered. The single proposition remains 

that until ruch legal transfer is made, any excess remains a part of. 

the jury fuud~and by the Constitution and statutes, such fuud is appropriated for specific purposes. 

In viewing authorities cited herein, it appear8 that the 

following settled rules govern such transfers, keeping in mind that 

such cla88e8 of funds authorized by the Constitution and statutes are 

appropriated to the several classified purposes; first, the commis8ioner8' 

court may not, by any unauthorized classification, defeat the payment 

of just claims or destroy the right of holder8 of registered clais; ,, 

under Article 1627, Revised Civil Statutes of 1925, to have their claima 

paid out of the appropriate funds in the order of registration. Clark 

and Courts v. San Jacinto Comty, 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 

levied and moneys raised for the purposes for that particular cl.ss8 

funds, such transfer would be prohibited. Carrollv. Williams, supra, 

It is, therefore, the opinion of this department that the 

county clerk is not authorized to issue his warrant on the county 

treasurer, to be paid out of the jury fund, in favor of any officer 

for fees accruing under Article 1055, Code of Criminal Procedure, as 

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

transfer of such excess and into what fund, depend8 upon all facts 

developed showing the true condition of finances of a county including the status of the particular fund affected. 

Yours very truly 

APPROVED CCT 4, 1939 AITOPKEK CEIERALOFTKKAS 

WMK:IM:br 

Is/ W . F. Moore 

By /a/ Wm. J. R. King 

Wm. J. R. King 

FI2STASSISTAIiTA!lTORKKI @NEPAL Assistant