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R-465

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### OFFICE OF



# TREATTORNEYUSENEW

Hon. Royce Whitten CountyAttorney 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 constablemay retainwhere he is not on a salarybasis. 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-accordingto the-last Federal census. All the other officers of the County are on the salarybasis, 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 retainper annum?

“(2) Can the County Auditor at his discretion permit the constable,to purchasea new automobile to be used in carrying on his officialduties 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?"HonorableRoyceWhitten - Page 2

Lamar County has a populationof 50,425according to the 1940 Federal Census, and its precinct officersare compensatedon a fee basis. Therefore, the compensationof the constables is governedby Articles 3883 and 3891.

The provision of Article 3883 applicableto Lamar County is as follows:

"In countiescontaining as many as thirtyseven thousand, five hundred and one (37 501) and notmore than sixty thousand (60,OOOjinhabitants, or containinga city of over twenty-five thousand (25,000) inhabitants: County Judge, District or Criminal District Attorney, Sheriff, County Clerk, CountyAttorney, District Clerk, Tax Collector,Tax Assessor, or the Assessor and Collectorof Taxes, Thirty-five HundredDollars ($3500)each; Justice of the Peace end Constable Twenty-fourHundred Dollars ($2400)each.

. .* The provisionsof Article 3891 applicableto 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 ofArticle 3883,
. . . "In counties containing as many as thirtyfive hundred and one (37 501) %e~o:h~%%an sixty thousand (60OQOI 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,ifiedinArticle 3883, amounts to Forty-two Hundred and Fifty Dollars ($4250). Precinct officers shall retain onethird until such one-third, togetherwith the amount specified in Article 3883, amounts to - '- Twenty-twoHundred Dollars ($2200).n
n*
. . "(a) The Commissioners Court is hereby authorized,when in their judgment the financial conditionof the county and the needs of the officers justify the increase, to enter an order increasingthe compensation of the precinct, countyand district officers in an additionalHonorable RoyceWhitten - 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 fiscalyear of 1944 did not exceed the sum of Thirty-sixHundred ($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 countyand the needs of the officers justify the increase to enter en order authorizing the precinc officers to retain out of excess fees an additionalamount not to exceed 25% of the maximum sum allowed under the law for the fiscal year 1944. The maximum compensation the precinctoffiaers of Lamar County could receive in 1944was the maximum such officers could receiveunder laws existingAugust 24, 193! The maximum compensationprecinct officers of Lamar County cou: receive under laws existingAugust 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 themaximum fees constables of Lamar County can retain is $3001 ($2400plus $600) provided the Commissioners'Court has enterei en order increesingtheir 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, itwas held in OpinionNo. O-4342 that a constable compensated on a fee basis is entitled to deduct from excess fees necessary travelingexpenses incl~uding

the expenses of gas, oil and a reasonableemount of upkeep incurredby a constable in the discharge of hip officialduties. We are herewith enclosing copies of our Opin ionsNos. 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 usedby 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 compensationwhich 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 RoyceWhitten - Page 4

2. The constable is not authorizedto purchase a new automobile out of fees of office.
Yours very truly ATTORNEYGENJIRkL

OF TEXAS

Assistant

ATPROVED

ATTORTGXGENERAL
JR:jrb Enclosures