HonorableA. A. Miller opinionITO.O-1206 CountyAttorney Hcwton county Re':,May fees undqr Article 1055, Newton,Texas Co& 'ofCriminalProcedure,as amended,46th legislature,be peid.bywarrant out of the jury Dear Sir: fund of the county.
Your requestfor an opinionof this Departmentunder date of July 29, 1939,reads substantially8s follows:
Under Article 1055, as amended,by the 46th Legislature, House Bill 190.205, authorizingthe county clerksto "issuehis warrants on ,thecountytreasurer.infavor of such officer,to be paid out of the road a$ bridge fund, or other funds not otherwiseappropriated," can the countyclerk issuehis warrant to be paid out of the jury fund, if there be an excess?
The above portionof Article 1055, Code of CriminalProcedure, as amended,which is correctlystated in your request,authorizessuch fees to be paid out of the road and bridge fund or other funds not otherwiseappropieted. The jury fund of the county is a constitutional fund, being made up of taxes leviedunder the constltutionsl limitsand certainstatutoryfunds which are specificallyappropriatedand dedi- cated to specificuses.
Article 1628,Revised Civil Statutes,1925, relatingto the jury ~fund,provides:
?Phe funds receivedby the countytreasurershall.beclassed as follows,and shall be appropriated,respectively,to the payment.of all claimsregisteredin the first, second and third classes: (1) All jury fees, all money receivedfrom the sale of estrays,and all occupa- tion taxes."-
Article 1626,RevisedCivil Statutes,1925, claisifyhg all cla~imsagainste county,directs that all jury scrip and scrip issued for feedingjurorsare payableout of funds so receivedof the first class.
Article 1630,, RevisedCivil Statutes,1925, provides:
"The commissfoners' court by en order to that effectmay transferthe money in hand from one fund to another,as it may deem Hon. A. A. Miller,pege 2 (0-1206) necessary and proper,exceptthat~thefunds which belong to class first shall never be divertedfrom the paymentof the claima registeredin class first, unless there is an excess of such funds." (Underscoring ours)
The SupremeCourt in Carrollv. Williams,202 S. W. 504, held that the foregoingstatutes only appliedto those fund8 purely statutory and that Article 1630, supra, shouldnot be held to embraceany of the five classesof county fund8 specificallydesignatedin Section 9, Article 8, of the Constitutionof Texas.
Any effectto be givenArticle 1630,supra, es to the transfer of county fund8 shouldbs con8ideredin the light of the opinionof Carroll-f.Williams,euprs,and cases cited thereinwhich furnishu8 the only authorities involvingthis statuteand its effect under Article 8, Section 9, of the Constitutionrelatingto the transferof county funds. In pasein g on whether or not a legal excesswould exist as would authorizea transferand if 80, into what funds, constitutional or special,asme may k transferred,all facts necessaryto presentto this departmentthe actual conditionof the county'sfinsnc88;the stetu8 of each fund measuredby the current,demands chargeableagainst same and th8 varioustax rates and assessmentseffectingthe particular fundswould have to be considered. The single propositionremains that until ruch legal transferis made, any excess remainsa part of. the jury fuud~andby the Constitutionand statutes,such fuud is appro- priatedfor specificpurposes.
In viewing authorities cited herein, it appear8that the followingsettledrules governsuch transfers,keeping in mind that such cla88e8of funds authorizedby the Constitutionand statutes are appropriatedto the severalclassifiedpurposes;first, the commis8ioner8' court may not, by any unauthorizedclassification, defeatthe payment of just claimsor destroy the right of holder8of registeredclais; ,, under Article 1627,RevisedCivil Statutesof 1925, to have their