### . . MO4

March 6, 1947

Honorable David J, MOPP~S OpinionNo. V-71 County Attorney Brown County Res Authority of the Brownwood,Texas Comaissioners’ Court to pay a constable (on a salarybasis) mileage expense for the use of his 

### automobilr. Dear 

### Sir:

Your letter requestingan opinion from this Department is in part a@ followa:

“I have this question at present asked m8 by the Commissioners’ Court: Uh8re a~ constablehas been put on a balarfbasis, has the Collmissloners’ Court ~autherity to pay such constablemileage fctr the use of his automobile?
“Apparentlythere 18 nothIng directly
on this in the,dtatutea. Prior to’ being placed on a salary, the oonstablecould aollect fees for mileage in servingpaparp~, bulb after being put on salaryhe must turns suah fees of service over to the salary fund. Art. 39120, sec. 2, provides~for oaying salary to precinct officera;Sec. 17 pravides for the fixing of their salary; and Art. 3899, Sec. B, provides for the payment to the Sheriff’

of 4# per mile for the use of his automobilewhen he owns the automobile. Can we infer fzpom this that the Corn-- missioners’Court would have autho&itg to make the same payment to the constablewhen he uses his car?

“You will readily understand that a constableon a salary basis would have muoh
more incentive to be active in the eervloe of papers and servingwarrants if’ he could be reimbursed f’or

his expenses.”Hon. David J. Mom111 - Pagb 2, Van

Subdivision (b), Article 3899, **V.A.C.S.;** provfUss in 

### part the following:

"The Ooraissioaors Court of the oounty of the eheriff'sresidencery, upon the writton and sworn application of raoh officrr, stating the nrcerrity themfor, allow oae or more aut@mebil~r to be used by the sherUT in thr Qie

### cwrgs of orrioial bu8i~e8e,wuch, is purchassdby the county 8h&ll **br be**  t "thu. in the ~8.m~ prescribedby law far pwchaae ol eupplferand paid fop out ef the Qsneral Pun6 of the county ad they ah8ll **be** rrportel **aad** paid in the 8ane
naaor ,a?

horoia **pr4vUod** fop other **a** penser.

,

En ooartruiagthr absvo qwtr& pro*18loa,WI Departmwtf held the **fO~%OW%ng**ti ,OuS-On k. e4-t

**“ By**  **virtue of**  SuctionB, Artlols 3899, Vernoa'8hnaetated Civil Statutor,the DhOFiifb WI 4eputLos Ime UFO YESOn 4 8a1-r h818 Who @WSi 88d '1180 adxue@blle or WAterobilOl 35 tho biloLllr(e of offioLb1 ba8inerr are allow04 feud aoats for 8aOh rile traveled tn **the** &i8Qhar@3OfHop. David S. Morris - Page 3, V-71

officialbusiness. **Suoh &um**  **ahall cove@**  all ex9enseeof the maintenance,degreaiation, and operationof such automobileep automobiles. Suoh mileage shall be reported and paid In the aam% mater prescribedfor other allowable expensesunder the provisions of the act. This act does not provide four cents for each mile traveledby a constable in tli% d;scbargeof his sfriclalbusinsss.

We quote the following from HansaomB vs. Harris County (Clv. **A99.)** 243 S.W. 1002, errm refused:

'It v&a also shown by the undisputed evidence that the expenses so incurredby appellant in the hire **of** automobiles 

### were reasonablemnd nsc~sauy.

. .
"Ye think tMt appellantwas not entitled, under aW.cle 3897 above mentioned, to deduct fro8 ths excess fees of his office 8ue to the count;J expvneea Incurredby him in the purchase ef gasoline and lubricatingoils, and in making repairs upon his automobiles,though used by hi8 6xclualvel~in the dischargeof his duties as aherifr of Harris county. The point was ex~rsssly~ so ruled by the Galverton Court of Civil Appeals in Harris County v. Iialmaond

et al., 203 8.W. 445, in a very clear and full opinionby Chief Justice Pleasants.

"

l . .

'Nor do ve think t4t article 3897 authwIE@V a &;eriff to hizw aFtCsr@biles ovned by other peneons 

### for the use of the sheriff in the conve~ancoof 9risoner8,etg., and to charge the countyvitb suoh gxfpenw. FOP, if the county is not oh&geab, 8 vith the price of gasoline, upkeep, etu,, of t

ke sheriff'sovn automobile used In the Ulaaharge of his offioialduties,We manot me any ~tmma **102** holdLng that the sheriff might hire an automobile belonging to another **and** chwgr the oeunty with the cost of such hire. IfHon. David J

. Morris - Page 4, V-71

a proper constructionof article 3897 requires a holding that a nrheriff may hire automobiles

belonging to other persons for the 

### purpos~e of discharging

his officialduties in conveyingprisoners and election supplies,etc., to and from differentpar~ts

of his county, and make the cost of such hire chargeabl~e against the county, then, ,ofcourse,no sheriff would be so foolish as to use his own automobile in the discharge of such official duties, and keep the same up, etc., at his own ex.ppense. It seems to us that it would be nonsensicalto say that a sheriff Is not authorizedby article 3897 to charge the countywith oil and gasollne used in his own automobile,**or** the upkeep thereof, ,when

used in the diqchargeof his officialduties in his county, and at the
same time so construe the article as to permit a sheriff to hire another'sautomobile in the discharge of such duties and charge the county therewith."

We quote the followingfrom Harris County vs. Hammond, et al, (Civ.App.) 203 3. W. 445:

"It goes without saying that defendant
was not entitled to credit for the expense of operatingthe automobile,s for his private benefit or plee,sure.We are further of oplnion that, even when he used the automobiles in performinpthe duties of his office, the expense of their operation sho,uld not be POgarded as 'expe,nse

necessarilyincurred in the conduct,

of the office."

It will be noted from the foregoing cases that under the statute&s it then existed, the sheriffw&8 not entitled to expen~ses for the operationof an automobile
nor for the hire of an automobile. Although Subdiv:ision (b) of Article 3899, V.A.C.S.,how authorizesthe payment to the sheriff of four (44) cents per mile for each mile traveled:

in the discharge of officialbusiness,we are of the opinion that the principleof statutory construction set out in the above mentioned ca.ses is applicableto the instant case, and a constableis not entitleU to expenses for the operationof an automobileunless there is some provision in the statutes 80 providing.Bon. David J. Morris - Page 5, V-71

We fail to tlnd any statuteauthorizinga oonstable cotupeasat~on a salary bseis to receive mileage for the use of his autoaobile. In the absence of such authority, he camwt oollect such tileage from the county. Therefore,it is our opinion that the Corm18aioneraiCourt of Brown County does not have authority to allow a constable vho is compensated on a salary baais mileage for the u20 of his automobile in the dicecharge OS oSflcis2, (hltier.

The Cornmis8ioners~ Court, of a county, the constablesof rthleh are coapensatedon a malrry basis, has no authority to pay such conatablsalailsage for the use of their autvaobllr~In the dischargeof their officiald\5ties,

Yours very truly

ATTORREY OHYERAL OF TRXU

JRfdjW es& Assistant