OF TEXAS

OERALDc. MANN Auwruu II. -

Honorable L. P. He&d Courity Auditor Bell county Belton, Texas
Dear Sir:

partment OpFnFonNo. 0-399~ Re: Are'the Items submittedby the constableand justiae of the peace authorizeddeductions from fees? Is it the duty of the county audltor or the acmmissloners~ cqurt to approve the annual accounts of the above mentioned precinct officers?

Your reoent request P& an opinion of this deon the above stated questionshas been received.

We quote from your letter as follows:
"Will appreciate if you will advise me with peferenae to the followingmatters:

"We have a Constable that shows In his annual report that his offiae earned and collected $3,915.50 during the year 1939; IncidentallyI may say that the Comml.sslonerls

Court have left all Constablesand Justiae of the Peace on the Fee basis; Along with this he also lists as authorizeddeductionsthe following items;
"Maximumfees allowed under Art. 3883-3883d Payment of Deputy Constables (whose appoint1,800.oo

ment was approved by Cap. Court) 900 .oo Stationeryand offiae supplies 15.00 Telephone and telegraph 250 .oo Postage 30 .oo TravelFng expense

Total Deductions -k%e+-
"No other remarks of any descriptionare made with reference to the Deductions,and I am just wondering If you will adviseme whethe* or not' any oti all of the- -

HonorableL. P. Heard, page 2 (O-399)

items above set out could be classed as authorizeddeductions.

"Also we have Justice of the Peace who shows as Authorizeddeductionsthe following:
"Maximumfees allowed 1,800.oo Stationeryand office supplies 30.00 Telephone and telegraph 50.00 Travelingexpense 36.00 OfficeRent 180.00 Ice for office Water bill, soap, paper eta. for wash room 406% ffas for heating Lights for office, fan and radio 6&i;;
Janitor Service I00 72
Total $2,454 .OO
"No other notationsare made tith referenceto these items.

"I may aay that neithermyself ncrr the Commlssioner'sCourt were Informed of the neaesslty of any of these Items, nor has the Court passed any orders or approval of any of the Items except the appointmentof the Deputies of the Constable.

"May I ask the same question wl.th referenoeto the Justlae of the peace as was asked about the Constable.

"Also,will you please advise me upon whom the duty of the approval of the annual account falls. It seems to me that It is incumbentupon the Commissioner's Court, but just at thFs time I am unable to locate the law with regards to the approval of annual reports."

The population of Bell County accordingto the last federal census is 50,030 Inhabitants.

Article 3883, Vernon's Annotated Civil Statutes, reads in part as follows:

"Rxceptas otherwiseprovided In this Act, the annual fees that may be retained by precinct, county and district officersmentioned In this Article shall be as follows:1 ’

Honorable L. P. Heard, Page 3 (C-399)

"

. . ; “3

. In countiesaontalnlngas many as thirty-seventhousand five hundred and one {~O'OOO] Inhabitants 37 501 and not more than sixty thousand or containinga city of &er twenty-fiveihousand (25,000)lnhabltants: County Judge, District or Crlmlnal DistrictAttorney,Sheriff, County Clerk, CountyAttorney,District Clerk, Tax Colleotor, Tax Assessor, or the Assessor and Collector of Taxes, Thirty-five Hundred ($3500.00) Dollars each; Justice of the Peace and Constable, Eighteen Hundred ($1800.00) Dollars each."
Article 3891, Vernon'sAnnotated Civil Statutes, reads in part as follows:

"Each offlocrnamed In this Chapter shall first out of the current fees of his office pay or be paid the amount allowed him under the provisionsof Artlale 3883, togetherwith the salarles of his asslstantaand deputies, and authorizedexpenses under Article 3899, and the amount necessaryto cover costs of premium on whatever surety bond may be requlred by law. If the current fees of such office collectedin any year be more than the amount needed to pay the amounts above specified, same shall be deemed excess fees, and shall be disposed of In the manner vided. hereinafterpro11

. . . "In countiescontaining seven thousand, five hungred

_ as many as thlrtyand one (37 501) and not more than sixty tnousand '(~o,ooo~, or containinga olty of over twenty-fivethousand (25,000)Inhabitants, dlstrlct and county officers named herein shall retain one-thirdof such excess fees until suah one-third,together with the amount spealfledIn Artlola 3883, amounts to Forty-twoHundred and Fifty Dollars ($4250). Preclnat officers shall retain onethird untll such one-third,to ether with the amount specifiedIn Artlole 38 83, amounts to Twenty-twoHundred Dollars ($2200)."‘t

.

HonorableL. P. Heard, page 4 

### (

Article 3896, 3897 and Civil Statutes reads as follows I O-399)

3898, Vernon'sAnnotated

"Art. 3896. Each district,county and prealnct officer shall keep a correct statementof all fees earned by him and all sums oomlng Into his hands as deposits for aosts, togetherwith all trust funds placed In the registry of the court, fees of offloe and commissionsIn a book or In books to be provlded~hlmfor that purpose, In which the officer,at the time when such deposits are made or suah fees and commFaslons are earned and when any or all of such funds shall come Into his hands, shall enter the same; and It shall be the duty of the oounty auditor In countieshaving a aountjr auditor to annuallyexamine the books and acaounts of such offloersand to report his findingsto the next succeeding grand jury or district aourt. In aountleshaving no county auditor, It shall be the duty of the Commissioners1

Court to make the examinationof said books and acoounts or haves the same made and to make report to the grand jury as hereinabove provided.

"Art. 38%'. Each district,county and preolnct offlaer,at the olose of each fiscalyear (December31st) shall make to the districtoourt of the county In which he resides a sworn statement In triplicate (on forms designedand approved by the State Auditor) a copy of whlah statementshall be forwardedto the State Auditor by the clerk of the district court of said county within thirty (30) days after' the same has been filed In his office,and one copy to be filed with the county auditor, If any; otherwise sald copy shall be filed with the CommIssIonera court. Said report shall show the amount of all fees, commissions

and aompensations

whatever earned by said offiaerduring the fiscal year; and secondly,shall show the amount of fees, commlsslons and compensations collectedby him dm~- lng the fisaalyear; thirdly, said report shall contain an Itemized statementof all fee8, commlsslons and compensations earned during the flsoalHonorable L. P. Heard, page 5 (O-399)

year which were not collected,togetherwith the name of the party owing said fees, commissions and compensations. Said report shall be filed not later than February 1st followingthe alose of the fiscalyear and for each day after said date that said report remains not filed, said offlaer shall be liable to a penalty ef Twenty Five ($25.00) Dollars, which may be reowered by the oounty in a suit brought for such purposes,and In addition said officer shall be subject to removal from office.

"Art. 3898. The fiscalyear, tithln the meaning of this Aot, shall begin on January 1st of eaah year; and eaoh district,county and precinct offlaer shall file his report and make the final settlement required In this Aat not later than February 1st of eaoh year; provided,however, that officersreaelvlngan annual salary as oompensatlon for their services shall, by the olose of eaoh~

month, pay Into the Offlaersl Salary Fund or funds, all fees, aommlaslons and oompensatlon aolleatedby him during said month. Whenever such offlcer'serves

for a fractional

part of the flsoal year, he shall nevertheless file his report and make flnal settlementfor suah part of the year as he serves and shall be entitled to such proportionate

part of his oompensatlon as the time for his servloebears to the entlre year.' Paragraph (a) of Article 3899, Vernon's Annotated Civil Statutes,reads as follows:

"(a) At the close of eaoh month Oh hiti tenure of office each offloernamed herein who Is compensatedon a fee basis shall make as part of the report now requiredby law, an Itemizedand sworn statementof all the actual and necessaryexpenses incurredby him In the oonduct of ~hlsoffloe, suah as stationery,stamps, telephone,premiums on offloialsl bonds, lncludlng the cost of surety bonds for his Deputies, premium on fire, burglary,theft, robbery Insurance proteatlngpublla funds, travelingexpenses and other necessaryexpensesr The Commlssionersl Court of the oounty of the Sheriff'sresidenceHonorable L. P. Heard, page 6 (O-399)

may, upon the written and sworn application of the Sheriff stating the necessitytherefor, purchase equipment for a bureau of arlminal ldentlflcatlcn such as cameras, finger print cards, Inks, chemlaals,mlcroscopes,radio and laboratoryequipment,flllng cards, filing cabinets,tear gas and other equipment In keeping with the system Iii use by the Department of Publlo Safety of this State or the United States Department of Justice and/or ~Bureauof Crlmlnal Identlfloatlon. If suoh expenses be lnourred In aonneotlonwith any partiaular case, such statementshall name suah case. Suah expense aocount shall be subject to the audit of the CountyAuditor, if any, other-vise by the Ccunmlsslonersl Court; and If It appears that any Item cf suoh expense was not Incurred by suah offloer or such item was not a necessary expense of office, such Item shall be by suah auditor or oourt rejeoted, la which ‘case the aolleatlonsof such Item may be adjudicated In any oourt of oompetent jurlsdibtion. The amount of salariespaid to Assistants .andDeputies shall also be olearly shown by suoh office, giving the name, position and amountpaid each; and In no event shall any officer show any greater amount than actuallypaid any suchAssistant er Deputy. The amount of suoh expenses,together with the amount of salariespaid to Assistants, Deputies and Clerks shall be paid out of the fees earned by such officer. The Commissioners' Court of the county of the Sheriff'sresldenaemay, upon the written and sworn applicationof the Sheriff stating the necessitytherefor,allow one or more automobilesto be used by the Sheriff In the dlsaharge of his offlalalduties,which, if purchasedby the County, shall be bought in the manner prescribedby law for the purchase of supplies and paid for out of the QeneralFund of the county and they shall be and remain the property of the county. The expense of maintenance,depreciation and operationof suah automobiles as may be allowed,whetherpurchasedby the county or owned.bythe Sheriff or his Deputiespersonally, shall-bepald for by the Sheriff and the amount thereof shall be reported by the Sheriff, on the report above mentioned, In the same manner as herein provided for other expenses."Honorable L. P. Heard, page 7 (O-399)

The salaries of Justices of the Peace and Constables of Bell County are respeotively, Eighteen Hundred Dollars ($1800.)plus one-thirdof the fees colleoted In excess of such amount of salary, as provided In Article 3891. sum-a, so that suoh total salary shall not exceed the sum of Twenty-twoHundred Dollars;

No. In this oonneotlonwe quote from our Opinion O-131, as follows:

"we construeArticle 3891 to'mean that in computing the excess fees to be allowed these offioers It Is not permlsslbleto compute one-thirdof all fees colleotedbut only one-thirdof suoh fees In exaess of and above $1,800.00. That Is to say, if the total fees aollected should be $3,000.00, the Justioe of Peaoe and Constablewould be entitled to retain one-thirdof $1200.00whlah would be the sum of $400.00, therebymaking the total salary and exaess fees allowed to such officersto be the sum of $2200.00."

In the case of Pierson,Justfoe of the Peace, et v. GalvestonCounty, 131 5. W. (26) 27;referrlng to %le 3899, It was held, among other things that the purpose of the statute requiring aounty off&s to make a monthly statement of expenses lnaurred In the oonduot of their officeswas to provide a means of ascertainingthe correctnessof suah expense items eaah month as they are Incurredand that the actual expensespaid or Incurredby suoh officersconstitutethe measure of the offlclaliB right to recoupment from the county. This case further holds that a Justice of the Peace was not entitled to recover from the county Items of expense olalmed for postage, travelingexpenses,and messenger service during certain years while In offlae,where the Justice did not render monthly statementsof'such expenses as required by statute, but merely filed annual reports estimatingthe expenses In lump sum amounts. This a886 also furtherholds that the statuterequiring oounty officersto make a monthly statement of expenses lnaurred In the conduat of their offlaes aannot be evaded by giving yearly estimates of expenses In lump sum amounts.

Referring to Artiole 3899, supra, we quote from the above mentioned case as follows:. .

HonorableL. P. Heard, page 8 (o-399)

"Themanifestpurpose of this statutewas to provide a means of ascertainingthe oorrectness of expense Items eaoh month as they are inaurred. The actual expensespaid or Incurred oonstltutethe measure of the official's right to reooupment. The monthly ltemlzatlonIs for the protection of the county by affordinga means of ascertalnlng

the faat and amount of such claimed Item of expense and whether It was properly chargeableas suah. It Is manifest from the annual reports and confirmedby the evidence that these expenseswere merely estimatedand a lump sum given each year. The statutewould be of no value If its salutoryprovisionscould be evaded In this manner. F ."
The authorizedexpenseswhich may be deducted under Artlale 3899, supra, are suoh expensesas are enumerated therein, and an officer to be entitled to make such deductionsmust aomply with Artiole 3899, supra,by making an Itemizedand sworn statement of all the aatual and necesssry expenses inourredby him In the aonduat of his offlae at the olose of each month of his tenure of offloe. Aa above stated, only those expenseswhlah are authorized under the statute oan be deduoted. P'rcm the facts stated In your letter,we preaume that neither of the above mentioned precinct offlaersmade an Itemizedand sworn monthly statementof the expenses Incurredby them In the conduct of their offices as required by Article. 389g;supra. Therefore,the opinion of the court In the aase of Pierson, Justice of the Peace, et al. v. GalvestonCounty, supra, answersyour first question.,

Referring to your seaond question,you are advised that It is not the duty of the oounty auditor or the ccmmlsslonersl

court to approve the annual accounts of the above named precinct offlaersexaept as' provided by Article 3896, making It the duty of the county auditor In counties having a county auditor to annually examine the books and accounts of such offlaersand to report his findingsto the next suaoeedlng

grand jury or district oourt. In counties having no county auditor, it shall be the duty of the Commlsslonerslcourt to make the examinationof said books and accounts or have the same made and to make the report to the grand jury as required by law.

The sworn statementrequired to be filed annually by Article 3897, supra, Is not required by law to be ap-HonorableL. P. Heard, page 9

proved by the county auditor or the commlssionersl court. Trusting that the foregoingfully answersyour lnqulrles,

we remain

Yours very truly
ATTORIIEYC;IEI4JZRALOFTEXAS

By /a/ Ardell Willlama

Ardell Wllllams Assistant

AX:jm SC

APPRCVEDFEB 29, 190

/a/ Gerald C. Mann
ATPORREYGEI'JERALOFTEXAS

APPROVED Opinion Committee

BY BWB Chairman