. . 

MO4 

March 6, 1947 

Honorable David J, MOPP~S Opinion No. V-71 

County Attorney 

Brown County Res Authority of the 

Brownwood, Texas Comaissioners’ Court 

to pay a constable 

(on a salary basis) 

mileage expense for 

the use of his automobilr. 

Dear Sir: 

Your letter requesting an opinion from this 

Department is in part a@ followa: 

“I have this question at present asked 

m8 by the Commissioners’ Court: Uh8re a~ 

constable has been put on a balarf basis, 

has the Collmissloners’ Court ~autherity to 

pay such constable mileage fctr the use of 

his automobile? 

“Apparently there 18 nothIng directly 

on this in the,dtatutea. Prior to’ being 

placed on a salary, the oonstable could aollect fees for mileage in serving paparp~, bulb 

after being put on salary he 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 automobile when 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 constable when 

he uses his car? 

“You will readily understand that a 

constable on a salary basis would have muoh 

more incentive to be active in the eervloe 

of papers and serving warrants 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's residence ry, 

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 Qiecwrgs of orrioial bu8i~e8e, wuch, is 

purchassd by the county 8h&ll br be t 

in the ~8.m~ prescribed by law far "thu. 

pwchaae ol eupplfer and 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 apenser. 

, 

En ooartruiag thr absvo qwtr& pro*18loa, WI 

Departmwtf held the fO~%OW%ng ti ,OuS -On k. e4-t 

“By virtue of Suction B, Artlols 3899, 

Vernoa'8 hnaetated Civil Statutor, the 

DhOFiif b WI 4eputLos Ime UFO 

On 4 8a1-r h818 Who @WSi 88d '1180 YESadxue@blle or WAterobilOl 35 tho biloLllr(e 

of offioLb1 ba8inerr are allow04 feud aoats 

for 8aOh rile traveled tn the &i8Qhar@3 Of 
Hop. David S. Morris - Page 3, V-71 

official business. Suoh &um ahall cove@ 

all ex9ensee of the maintenance, degreaiation, and operation of such automobile ep 

automobiles. Suoh mileage shall be reported 

and paid In the aam% mater prescribed for 

other allowable expenses under the provisions 

of the act. This act does not provide four 

cents for each mile traveled by a constable 

in tli% d;scbarge of his sfriclal businsss. 

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 incurred by 

appellant in the hire of automobiles were 

reasonable mnd nsc~sauy. . . 

"Ye think tMt appellant was not entitled, 

under aW.cle 3897 above mentioned, to deduct 

fro8 ths excess fees of his office 8ue to the 

count;J expvneea Incurred by him in the purchase ef gasoline and lubricating oils, and 

in making repairs upon his automobiles, though 

used by hi8 6xclualvel~ in the discharge of 

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 opinion by 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~anco of 9risoner8, etg., and to charge 

the county vitb suoh gxfpenw. FOP, if the county is not oh&geab, 8 vith the price of gasoline, 

upkeep, etu,, of t k e sheriff's ovn automobile 

used In the Ulaaharge of his offioial duties, 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. If 
Hon. David J . Morris - Page 4, V-71 

a proper construction of article 3897 

requires a holding that a nrheriff may 

hire automobiles belonging to other persons for the purpos~e of discharging his 

official duties in conveying prisoners 

and election supplies, etc., to and from 

different par~ts of his county, and make 

the cost of such hire chargeabl~e against 

the county, then, ,of course, 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 nonsensical to say that a 

sheriff Is not authorized by article 3897 

to charge the county with oil and gasollne 

used in his own automobile, or the upkeep 

thereof, ,when used in the diqcharge of his 

official duties in his county, and at the 

same time so construe the article as to 

permit a sheriff to hire another's automobile in the discharge of such duties and 

charge the county therewith." 

We quote the following from 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 operating the automobile,s for his private 

benefit or plee,sure. We are further of oplnion that, even when he used the automobiles 

in performinp the duties of his office, the 

expense of their operation sho,uld not be POgarded as 'expe,nse necessarily incurred in the 

conduct, of the office." 

It will be noted from the foregoing cases that 

under the statute &s it then existed, the sheriff w&8 not 

entitled to expen~ses for the operation of an automobile 

nor for the hire of an automobile. Although Subdiv:ision 

(b) of Article 3899, V.A.C.S., how authorizes the payment 

to the sheriff of four (44) cents per mile for each mile 

traveled: in the discharge of official business, we are of 

the opinion that the principle of statutory construction 

set out in the above mentioned ca.ses is applicable to the 

instant case, and a constable is not entitleU to expenses 

for the operation of an automobile unless there is some 

provision in the statutes 80 providing. 
Bon. David J. Morris - Page 5, V-71 

We fail to tlnd any statute authorizing a 

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 Corm18aionerai Court 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 constables of rthleh are coapensated on 

a malrry basis, has no authority to pay 

such conatablsa lailsage for the use of 

their autvaobllr~ In the discharge of their 

official d\5ties, 

Yours very truly 

ATTORREY OHYERAL OF TRXU 

JRfdjW 

es& 

Assistant