,. 

R-465 

I 

OFFICE OF 

TRE ATTORNEY USENEW 

Hon. Royce Whitten 

County Attorney 

Lamar County 

Paris, Texas 

Dear Sir: 

May 20, 1947 

Opinion No. V-224 

Re: Maximum fees of the 

constables of Lamar 

County. 

Your request for an opinion from this Department 

is as follows: 

"This is to request your opinion ooncerning the amount of fees of office that 

a constable may retain where he is not on 

a salary basis. The facts of the case are 

as follows: 

"Troy Bussell is constable of Precinct 

One, Lamar County, Texas, with office in the 

Court House at Paris, Texas. Lamar County 

has a oooulation of slightly over 50,000 

people-according to the-last Federal census . 

All the other officers of the County are on 

the salary basis, but the Justices of the 

Peace and the constables are on the fee bas is. 

"(1) Under the law how much net profit 

from fees in office is the constable allowed 

to retain per annum? 

“(2) Can the County Auditor at his discretion permit the constable,to purchase a 

new automobile to be used in carrying on his 

official duties and allow such constable to 

pay for such automobile out of fees of office 

other than such fees of'office which he may 

retain as his net profit under the law?" 
Honorable Royce Whitten - Page 2 

Lamar County has a population of 50,425 according 

to the 1940 Federal Census, and its precinct officers are 

compensated on a fee basis. Therefore, the compensation of 

the constables is governed by Articles 3883 and 3891. 

The provision of Article 3883 applicable to Lamar 

County is as follows: 

"In counties containing as many as thirtyseven thousand, five hundred and one (37 501) 

and not more than sixty thousand (60,OOOj inhabitants, or containing a city of over twenty-five 

thousand (25,000) inhabitants: County Judge, 

District or Criminal District Attorney, Sheriff, 

County Clerk, County Attorney, District Clerk, 

Tax Collector, Tax Assessor, or the Assessor and 

Collector of Taxes, Thirty-five Hundred Dollars 

($3500) each; Justice of the Peace end Constable 

Twenty-four Hundred Dollars ($2400) each. . .* 

The provisions of Article 3891 applicable to Lamar 

County read as follows: 

"Each officer named in this Chapter shell 

first out of the current fees of his office pay 

or be paid the amount allowed him under the provisions of Article 3883, . . . 

"In counties containing as many as thirtyfive hundred and one (37 501) 

%e~o:h~%%an sixty thousand (60 OQOI or 

contain:+. a city of over twenty-fiv; tho&and 

(25,000) inhabitants, district and county officers named herein shall 'retain one-third of 

such excess fees until such one-third, together 

with the amount spec,ified in Article 3883, amounts to Forty-two Hundred and Fifty Dollars 

($4250). Precinct officers shall retain onethird until such one-third, together with the 

amount specified in Article 3883, amounts to - '- 

Twenty-two Hundred Dollars ($2200).n 

n * . . 

"(a) The Commissioners Court is hereby 

authorized, when in their judgment the financial 

condition of the county and the needs of the officers justify the increase, to enter an order 

increasing the compensation of the precinct, 

county and district officers in an additional 
Honorable Royce Whitten - Page 3 

b emount not to exceed twenty-five (2%) per cent 

of the sum allowed under the law for the fiscal 

year of 1944, provided the total compensation 

authorized under the law for the fiscal year of 

1944 did not exceed the sum of Thirty-six Hundred 

($3600.00) Dollars." 

.' Subdivision (a) of Article 3891, above quoted, autho: 

ises the Commissioners' Court when in their judgment the finan 

cial condition of the county and the needs of the officers 

justify the increase to enter en order authorizing the precinc 

officers to retain out of excess fees an additional amount not 

to exceed 25% of the maximum sum allowed under the law for the 

fiscal year 1944. The maximum compensation the precinct offiaers of Lamar County could receive in 1944 was the maximum 

such officers could receive under laws existing August 24, 193! 

The maximum compensation precinct officers of Lamar County cou: 

receive under laws existing August 24, 1935, as fixed by Artic: 

3883 and Article 3891 as amended by Ch. 327, Acts of the 44th 

Legislature, p. 752, was $2400. 

Therefore, it is the opinion of this Department that 

the maximum fees constables of Lamar County can retain is $3001 

($2400 plus $600) provided the Commissioners' Court has enterei 

en order increesing their compensation in an additional emount 

of 2% of the sum allowed under the law for the fiscal year 

1944. The $600 increase, however, must be paid out of the one. 

third excess fees provided for in Article 3891. 

In answer to your second question, it was held in 

Opinion No. O-4342 that a constable compensated on a fee basis 

is entitled to deduct from excess fees necessary traveling expenses incl~uding the expenses of gas, oil and a reasonable emount of upkeep incurred by a constable in the discharge of hip 

official duties. We are herewith enclosing copies of our Opin 

ions Nos. O-1284, o-1304, O-1866, O-3194 end O-4342, which con. 

tain holdings of similar effect. In view of the foregoing, it 

is our opinion that the purchase of an automobile for a constable to be used by a constable in the discharge of his official duties is not "necessary traveling expense* and, therefore 

your second question is answered in the negative. 

SUNMARY 

1. The maximum compensation which constables 

of Lamar County may receive is $3000. Any compensation over and above $2400, however, must be paid 

out of excess fees. Arts. 3883, 3891, V.C.S. 
Honorable Royce Whitten - Page 4 

2. The constable is not authorized to purchase a new automobile out of fees of office. 

Yours very truly 

ATTORNEY GENJIRkL OF TEXAS 

Assistant 

ATPROVED 

ATTORTGX GENERAL 

JR:jrb 

Enclosures