: 

OFFICE dF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

6.P” February 25, 2939 

.- 

12. CmAos c. Ashley 

Dm~ic~tAtorney 

, 

De3r sir: 'c\ 

but da to beotlCb3s 

Your lstter 

Attorney C3nsral GS 

to ttie writer. 

er or not Eemr 

aasassor-co&? 

3adrt333ea to 

on as to wh6thfmxa its sbrfffor deputy hire, 

68 app,pliea for. 

he sheriff-assesptie,s unaer autLo;oritp 

aer cna later hired adahdtticmal deputies 

r tha ori&.nalthree 

is worthy oi cnroful consid- . 

not got been 

cle,3$02 R.C.S., 
us. Our108 C. Ashley, February 25, 1939, page-2 

application shall be accoxpanlea by a 

stateiiient shovlluc the probable receipts 

frm fees, comlsslons ana corrpen6atloh to 

be COUeotod by aaid Offi dUri6g the 

flsoel year cod the probable disbursements 

which 8hd.l inOiua8 all salarias ma expm366 Of YiIia OffiCO; aa SE&i OOUrt 

shallmke its order authorizing the appointment 0r such ~depUtb36, QSSiStIXlt6 ana 

~elerk6 aud fix the compensation to be paid 

thtxawltbin the linitationa herein presoribea and determine the nunbar to be appointed as in the dl6crotlon of said court 

may be proper; provlGoa t&t In no aose 

6hI.X~ the CO~zaSiOn~s' COuXt Or my mOi3- 

her thereof attozzpt to influence the apPOiIltMllt Of aBy pel?SO?l a6 deguty, &SSiStaIlt 

or 01&c in any offioa. Upon the entry of 

such order-the offioars applying for such 

assistants, da&ties or,olerks shall be eutlmrizedto apgolnt theta; provided that Said 

ooqxmsation siiall not exceed the maxlmm 

amount hereinafter set out a‘* * ,? 

In this instance, the Cacunisslonors~ Court 

dld authorize the expenditure of the amount pala, but 

did not authorize the payment as mae. You have not 

stated in your letter whethor or not the C&osionerd 

Court has taken.any action on the annual rqort of 

tb officer, whioh my be of oontrolllng inportauce 

in effw.%inZ the rl3hts of the comty. 'The sheriff8saoesor-collcotor had no authority to anpoint deputics, except by the prooeduro as outlined in the 

e!:ove Article 3302. Further, he had no authority to 

8zroe u-&n or to pay a less zuiount to *e origlual 

three deputio6 than as autl;orlced by the Cozmlssioncrs* Cart order. :.~2rylcmcl Casmlty Coqany vs. The 

+itc, 107 S,..:. (2d) 035. 

The C~~ssloner3~ Court may subsequently 

.:tlfy tkt IlziPCh it ;'*ly h3Ve authorlmd ori;-,%ally. 

3, lihore tl~ ComLosiomrs* Court a:,provos the 
&!r. ca.rlOS C. Ashley, February 25, 1939, Z&e 3 

the expenditures ln the annual report or tie oSSlcer i 

as to paying d8putie6 not authorized to hnve hem agptit8a., the county Is bound as having authorized the 

deduction. Tho'Stato OS Texas vs. Carries, 106 2.3. 

(2a) 397; Camron countyvs. Pox, 61 ~321, (2a) 403. 

fIo?mvcr, whom more than three years had elapncd aSter 

the a~pointmnt und paymnt of an unauthorized deputy, 

nhere tbsre was no action of ogproval token by the 

CocmissloUers~ Court, and though tho County Auditor 

had allowed the paymzit, the county was not estopped, i 

but 00ua rocover. Tarraut County ~5. Smith, 81 S.P. 

(2al 539. i 

We believe that ,th8 procedure in Article 

3902 above Is properly construed us a cadition preceaont to a county officer*8 right of appointment of 

deps~W~& and hi6 rip;ht to deduct the armunt of dquty 

il‘8 reoo@ize that any e~cndituro for deputy hire iot au authorized 0xpenditu-Pe &ves the couuty a right to recover. Ikm3vsr, In this instants, 

it appears that the expenditure was authorized, thou& 

the ag?ointklents w8ra cot authorizedi Z:o do not beve suffered an 1niiWyfor i i 

-~~~-li~~ey-i~~~o~~~~~iaaa to 

i 

'%iiid have been different / . i 

BW-tbe 0fSloer appropriated the zoney to his own use 

or otlmr use than deputy hire. Thor8 ~olild not be 

any question as to the county having lost its right 

~ 1 

to'assort the olalm, in this instance, v:hcre the Comrninsionme~ Court has agprovcd the auditiny, and set-. 

tllng of the offlo8rts account; and IS the Comiission- 

/ 

or@ Court hw mae no approval of 8xgcnditures to / 

the additional deputies,' :ia believe that the violation 

OS Article 3902 ?lould give rise to the basis for a 

s.4.t in the violation OS a lec;al~right, but the theory 

of dammahsque InjUria Vould preclude a recovery. In 

othc-r words, ;.cmrc?. Co:,~lty has not bocn out fore t:ian 

the $X00.00 a::pqved 0~;:,enditxire, nU cf ::!iioh we3 ex- 

.pended Sor deputy biro. 

'iie zro not c:;:lod~ upon to datomine the liability as bctwcn the offiow and original d8pUtie6. 

Fuxtlier, the Stnto of Te.x~s not bein< 3 party to this 
.i' 

u. Carlos C. Ashley, Pebrumy 25, 1939, Page 4 

propos0d suit and In llau OS tbis pnrtloular nitmtion not havine been previously detmhoa in the 

courts, OUT opinion can only bo an'abotrnct otatomnt 

of the applicable km iind should constitute no authority for any action. 

Be1iovlu5 this to answer your inquiry, 

are 

Yours very truly 

Wt3 

::ob 

.