OF TEXAS 

OERALD c. MANN Auwruu II. - 

Honorable L. P. He&d 

Courity Auditor 

Bell county 

Belton, Texas 

Dear Sir: 

partment 

OpFnFon No. 0-399~ 

Re: Are'the Items submitted by 

the constable and justiae 

of the peace authorized deductions 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 questions has been received. 

We quote from your letter as follows: 

"Will appreciate if you will advise me with 

peferenae to the following matters: 

"We have a Constable that shows In his annual 

report that his offiae earned and collected $3,915.50 

during the year 1939; Incidentally I may say that the 

Comml.sslonerls Court have left all Constables and Justiae 

of the Peace on the Fee basis; Along with this he also 

lists as authorized deductions the following items; 

"Maximum fees allowed under Art. 3883-3883d 

Payment of Deputy Constables (whose appoint1,800.oo 

ment was approved by Cap. Court) 900 .oo 

Stationery and offiae supplies 15.00 

Telephone and telegraph 250 .oo 

Postage 30 .oo 

TravelFng expense 

Total Deductions -k%e+- 

"No other remarks of any description are made 

with reference to the Deductions, and I am just wondering 

If you will advise me whethe* or not' any oti all of the 
- - 

Honorable L. P. Heard, page 2 (O-399) 

items above set out could be classed as authorized deductions. 

"Also we have Justice of the Peace who shows 

as Authorized deductions the following: 

"Maximum fees allowed 1,800.oo 

Stationery and office supplies 30.00 

Telephone and telegraph 50.00 

Traveling expense 36.00 

Office Rent 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 72 I00 

Total $2,454 .OO 

"No other notations are made tith reference to 

these items. 

"I may aay that neither myself ncrr the Commlssioner's Court 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 appointment of the 

Deputies of the Constable. 

"May I ask the same question wl.th referenoe to 

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 incumbent upon 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 according to the 

last federal census is 50,030 Inhabitants. 

Article 3883, Vernon's Annotated Civil Statutes, 

reads in part as follows: 

"Rxcept as otherwise provided In this Act, 

the annual fees that may be retained by precinct, county and district officers mentioned 

In this Article shall be as follows: 
1’ 

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

" . . ; 

“3 . In counties aontalnlng as many as 

thirty-seven thousand five hundred and one 

{~O'OOO] Inhabitants 

37 501 and not more than sixty thousand 

or containing a city 

of &er twenty-five ihousand (25,000) lnhabltants: County Judge, District or Crlmlnal 

District Attorney, Sheriff, County Clerk, 

County Attorney, 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's Annotated Civil Statutes, 

reads in part as follows: 

"Each offlocr named In this Chapter shall 

first out of the current fees of his office 

pay or be paid the amount allowed him under 

the provisions of Artlale 3883, together with 

the salarles of his asslstanta and deputies, 

and authorized expenses under Article 3899, 

and the amount necessary to cover costs of 

premium on whatever surety bond may be requlred by law. If the current fees of such office 

collected in 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. 

hereinafter pro11 . . . 

"In counties containing 

seven thousand, five hungred _ 

as many as thlrtyand one (37 501) 

and not more than sixty tnousand '(~o,ooo~, or 

containing a olty of over twenty-five thousand 

(25,000) Inhabitants, dlstrlct and county officers named herein shall retain one-third of 

such excess fees until suah one-third, together 

with the amount spealfled In Artlola 3883, 

amounts to Forty-two Hundred and Fifty Dollars 

($4250). Preclnat officers shall retain onethird untll such one-third, to ether with the 

amount specified In Artlole 38 8 3, amounts to 

Twenty-two Hundred Dollars ($2200)." 
‘t . 

Honorable L. P. Heard, page 4 ( 

Article 3896, 3897 and 

Civil Statutes reads as follows I 

O-399) 

3898, Vernon's Annotated 

"Art. 3896. Each district, county and prealnct officer shall keep a correct statement of 

all fees earned by him and all sums oomlng Into 

his hands as deposits for aosts, together with 

all trust funds placed In the registry of the 

court, fees of offloe and commissions In a book 

or In books to be provlded~hlm for 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 

counties having a aountjr auditor to annually examine the books and acaounts of such offloers and 

to report his findings to the next succeeding 

grand jury or district aourt. In aountles having 

no county auditor, It shall be the duty of the 

Commissioners1 Court to make the examination of 

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 fiscal year 

(December 31st) shall make to the district oourt 

of the county In which he resides a sworn statement In triplicate (on forms designed and approved by the State Auditor) a copy of whlah 

statement shall be forwarded to 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 offiaer during the fiscal year; 

and secondly, shall show the amount of fees, commlsslons and compensations collected by him dm~- 

lng the fisaal year; thirdly, said report shall 

contain an Itemized statement of all fee8, commlsslons and compensations earned during the flsoal 
Honorable L. P. Heard, page 5 (O-399) 

year which were not collected, together with 

the name of the party owing said fees, commissions and compensations. Said report 

shall be filed not later than February 1st 

following the alose of the fiscal year 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 fiscal year, 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 officers reaelvlng an 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 

aolleated by 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 settlement for suah part of the 

year as he serves and shall be entitled to such 

proportionate part of his oompensatlon as the 

time for his servloe bears 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 offloer named herein who 

Is compensated on a fee basis shall make as 

part of the report now required by law, an 

Itemized and sworn statement of all the actual 

and necessary expenses incurred by him In the 

oonduct of ~hls offloe, 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 proteatlng publla funds, traveling expenses 

and other necessary expensesr The Commlssionersl 

Court of the oounty of the Sheriff's residence 
Honorable L. P. Heard, page 6 (O-399) 

may, upon the written and sworn application 

of the Sheriff stating the necessity therefor, purchase equipment for a bureau of 

arlminal ldentlflcatlcn such as cameras, 

finger print cards, Inks, chemlaals, mlcroscopes, radio and laboratory equipment, 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 

~Bureau of Crlmlnal Identlfloatlon. If suoh expenses be lnourred In aonneotlon with any partiaular case, such statement shall name suah case. 

Suah expense aocount shall be subject to the 

audit of the County Auditor, 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 aolleatlons of such Item may be adjudicated 

In any oourt of oompetent jurlsdibtion. The 

amount of salaries paid to Assistants .and Deputies shall also be olearly shown by suoh office, 

giving the name, position and amount paid each; 

and In no event shall any officer show any greater amount than actually paid any such Assistant 

er Deputy. The amount of suoh expenses, together with the amount of salaries paid 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's resldenae may, 

upon the written and sworn application of the 

Sheriff stating the necessity therefor, allow 

one or more automobiles to be used by the Sheriff 

In the dlsaharge of his offlalal duties, which, 

if purchased by the County, shall be bought in 

the manner prescribed by law for the purchase of 

supplies and paid for out of the Qeneral Fund of 

the county and they shall be and remain the property 

of the county. The expense of maintenance, depreciation and operation of suah automobiles as may 

be allowed, whether purchased by the county or 

owned.by the Sheriff or his Deputies personally, 

shall-be pald 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-third of 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-two Hundred Dollars; 

No. 

In this oonneotlon we quote from our Opinion 

O-131, as follows: 

"we construe Article 3891 to'mean that in computing the excess fees to be allowed these offioers 

It Is not permlsslble to compute one-third of all 

fees colleoted but only one-third of 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 Constable would be entitled to retain one-third of $1200.00 whlah would 

be the sum of $400.00, thereby making the total 

salary and exaess fees allowed to such officers to 

be the sum of $2200.00." 

In the case of Pierson, Justfoe of the Peace, et 

v. Galveston County, 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 offices was to provide a means of ascertaining the 

correctness of suah expense items eaah month as they are 

Incurred and that the actual expenses paid or Incurred by 

suoh officers constitute the 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, 

traveling expenses, and messenger service during certain 

years while In offlae, where the Justice did not render 

monthly statements of'such expenses as required by statute, 

but merely filed annual reports estimating the expenses In 

lump sum amounts. This a886 also further holds that the 

statute requiring oounty officers to 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: 
. . 

Honorable L. P. Heard, page 8 (o-399) 

"The manifest purpose of this statute was 

to provide a means of ascertaining the oorrectness of expense Items eaoh month as they are 

inaurred. The actual expenses paid or Incurred 

oonstltute the measure of the official's right 

to reooupment. The monthly ltemlzatlon Is for 

the protection of the county by affording a means 

of ascertalnlng the faat and amount of such 

claimed Item of expense and whether It was properly chargeable as suah. It Is manifest from 

the annual reports and confirmed by the evidence 

that these expenses were merely estimated and a 

lump sum given each year. The statute would be 

of no value If its salutory provisions could be 

evaded In this manner. F ." 

The authorized expenses which may be deducted 

under Artlale 3899, supra, are suoh expenses as are enumerated therein, and an officer to be entitled to make such 

deductions must aomply with Artiole 3899, supra, by making 

an Itemized and sworn statement of all the aatual and necesssry expenses inourred by him In the aonduat of his 

offlae at the olose of each month of his tenure of offloe. 

Aa above stated, only those expenses whlah 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 offlaers made an Itemized and sworn monthly statement of the expenses Incurred by 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. Galveston County, supra, 

answers your 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 offlaers exaept 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 offlaers and to report his findings to the 

next suaoeedlng grand jury or district oourt. In counties 

having no county auditor, it shall be the duty of the Commlsslonersl court to make the examination of said books and 

accounts or have the same made and to make the report to 

the grand jury as required by law. 

The sworn statement required to be filed annually 

by Article 3897, supra, Is not required by law to be ap- 
Honorable L. P. Heard, page 9 

proved by the county auditor or the commlssionersl court. 

Trusting that the foregoing fully answers your 

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