Untitled Texas Attorney General Opinion ( 1945 )

Honorable Lee Curtis
County Attorney
Bell County
Belton, Texas
Dear Sir: opinion NO. o-6918
Re: County purchasing and
leasing photostatic machine.
Can the County Clerk and
Commissioners' Court legally
employ an operator of photo-
static machine and pay him
on piece-work or page basis,
or is it the duty of Clerk
and deputies to operate
said machine?
We acknowledge receipt of your request for an opinion
on the above matters, said request reading as follows:
"The County Clerk of Bell County has recently
explained to me that money could be saved the county
in the administration of his office by either the
purchase or a lease of a photostatic machine to be
used in making copies of deed8 and other instruments
which the law provides shall be recorded in the
office of the County Clerk, and in preparing certi-
fied copies of various instruments, such photostatic
copies to be in lieu of and substitution for the
copies of such instruments as are now made on type-
writers by clerks in the office.
"The County Clerk has propounded several ques-
tions in this connection. First, would it be lawful
for the county to purchase xphotostatlc machine?
Second, would it be lawful for the county to lease
suchmachine for a period of five years? Third, in
the event such machine should be acquired bypurchase
or lease, would it be lawful for the County Clerk
or the Commissioners1 Court to employ an operator
of such machine, or would It be necessary for some
deputy clerk to operate the machine? Fourth, if
..
Ronorable Lee Curtis, Page 2, (o-6918)
some one Other than a deputy Clerk could lawfully
b8 employed to operate such machine, could the com-
pensation be determined on a piOC8-Work or per page
basis, or would it be necessary that the compensation
b8 on 8 salary basis, and, if so, would the maximum
salary necessarily be the maximum salary which the
County Clerk could pay to a deputy?
"I have advised the County Clerk that in my
opinion the Commissioners1 Court would have lawful
authority to purchase or lease such machine, but that
sinC8 the law require5 the COUnty Clerk t0 copy VariOUS
instruments into the permanent r8COrdS and to prepare
and furnish CertifiOd copies, it would seem to b8 the
lawful duty of the clerk and his dOpUti85 to perform
such services, and that there is no authority which
would permit the County or the County Clerk to employ
some one other than a deputy clerk to operate the
machine in performing such services. This opinion is
expressed with reluctsnce because it is my understanding
that operators of photostatic machines are able to com-
mand and obtain higher salaries than the maximum salary
which the County Clerk of Bell County can pay any deputy,
and that this conclusion has the practical effect of pre-
cluding the possibility Of the saving of money to the
county, it being my understanding that such machines can
be leased and operators can bs employed on such a basis
as t0 actually rOdUC8 the 8xpenses now incurred in per-
forming the services in the customary manner."
The population of Bell County, TOXaS, according to the
1940 U. 9. Census is 44,863.
This department, in Opinion No. 00637, held that the
County Clerk of El Paso County, Texas, aould install and use
the photostatic method of recording written instruments which
he is authorized and required to record. Judge OCi8 SpeOr,
ipeaking for this department, in Opinion No. O-2241, said:
. . .Of course, Where a Statute authorlee the recordation of
an instrument the transcription may b8 by the photographic pro-
COSS, as well as by calligraphic process. We so held in our
Opinion No. O-637. So, also, Where Certified COpiOS Of records
are permitted, the COpi8S SO Certified may be photostatic as
Well as tgp8WrlttOn or handwritten, . ln
In our Opinion No. o-3571, we held that the Sheriff of
Collin County with the approval of the Commissioners' Court
could pay the City of McKlnney or Radio Station KTWP a reason-
able amount monthly for radio Service furnished in connection
with the conduct of his Office.
hOnOrabl8 Lee Curtis, Page 3, (O-6918)
w8 On'21058 herewith for POUr benefit @iniOnS DOS.
O-637, O-2241, and O-3571.
Article 3899, Vernon's Annotated Civil Statutes, pro-
vides in part, aa follows:
"(b) Each officer named in this Act, WhOr8 he
receives a salary as compensation for his SOrPiC88,
shall b8 entitled and p8rUIittOd t0 puronase ,or cnarge
to his county all reasonable expenses necessary in the
proper and legal conduct of his ofPi co, premiums on
officials' b ends, Pr8miUms on fire, burglary, theft,
robbery insurance protecting public funds, &nd in- -
eluding the cost of surety bonds for his deputies,
provided that expenses incurred for premiums on of6
ficlals* bonds for the county treasurer, county auditor,
county road commissioners, county school superintendent,
and the hide and animal inspector, including the cost
of surety bonds for any deputies of any such officers,
may be also included, and such expenses to be passed
on, predOtermin8d and allowed in the time and amount,
as nearly as possible, by the Commissioners1 Court
once each month for the ensuing month, upon the appll-
cation by each officer, stating the kind, probable
amount of expenditure and the necessity for the ex-
penses of his office for such ensuing month, which applir
cation shall, befOr presentation to said court, first
b8 8ndOrSOd by the County auditor, if any, OthOrWiS8
the county treasurer, only as to whether funds are avall-
able for payment of such expenses. The Commissioners'
Court Of the County Of the sheriff's rOSidOnC8 may, Up-
on the written and sworn application of the sheriff
Stating the n808sSity therefor, purchase equipment for
a DUr8aU of Criminal Identification, such as cameras,
fingerprint cards, inks, chemicals, microscopes, radio
and laboratory equipment, filing cards, filing cabinets,
tear gas and other equipment, in keeping with
the system in use with the Department Of public Safety
of this State, or the United States Department of Jus-
tice and/or Bureau of Criminal Id8ntification,
"Such purchases shall b8 made by each officer,
when allOWOd, Only by requisition in manner provided
by th8 county auditor, if any, otherwise by the Com-
missioners' Court. Each officer, shall, at the clos8
of 8aCh month of his tenure of office, make an item-
ized and sworn report of all approved expenses in-
curred by him and charged to his county, accompanying
such report with invoices covering such purchases and
requisitions issued by him in support of such report.
honorable Lee Curtis, Page 4, (O-6918)
If such expenses be inCurrOd in COIInOCtiOn with any
particular case, such report shall name such case.
Such report, invoices, and requisitions shall be
subject to ths audit of the county auditor, if any,
OthOIWiS8 by the CommissionersI COUPt, and if it
;;;;;;; that any item was not incurred by such
or that such item was;not a necessary or
legal e$pense of such office, or purchased upon
proper requisition, such item shall be by said
county auditor ,OP court rejected, In which case
the payment of such item may be adjudic,ated in any
court of competent jurisdictionr All such approved
claims and accounts shall b8 paid from the Officers1
3alary Fund unless otherwise provided herein."
(UndOrsCOring ours)
The facts in the instant case show that the photo-
static machine is to be used for the same purpose, and in the
place Of a typewriter in the pOrfO``C8 Of dUti8S in the
Clerk's office. If the Commissioners' Court dOtOZTUin85 that
a necessity for such machine exists it is the Opinion of this
department, in view of the authorities above, that the purchase
price or the amount paid for th8 lease of said machine is a
reasonable expense necessary in the proper and legal conduct
of the Clerk's office of Bell County, Texas, ThOrOfOr8, yOUr
first and second qU8stiOnS are answered in the affirmative.
Section 20, Article 5, State Constitution reads as
follows:
nTnere shall be elected for each county, by the
qualified voters, a cot&g clerk, who shall hold his
office for two years, who shall be olerk of the County
and Commlssioners~ Courts and recorder of the county,
whose duties, p8rqUiSitOS and f88S Of Office shall be
PrOscribed by the Legislature, and a vacancy in whose
office shall b8 filled by the Commissionerst Court,
Until the next genera1 818CtiOn for County and Stat8
officers; provided, that in counties having a pOPU-
lation of less than eight thousand psrsons there may
be an 8lOCtiOn Of a Sing18 Clerk, who shall POrfOZ'lll
the duties of district and county C18rkS."
Article 6600, V. A. C. S., provides;
"The county clerk shall give attested Copies
WhhenOVOr demanded of all papers recorded in his office;
and he shali receive for all such aoples, such fees
as may b8 provided by law,"
_. . -
Honorable Lee Curtis, Page 5, (O-6918)
APti 3902, w. A. c. B., provides in part as follows:
"WhOnOVOr any district, county or precinct offi-
cer shall require the services of deputLes, assistants
or clerks in the performance of his duties he shall
apply to the County Commissioners' Court of his county
z;zrgthority to appoint such dOpUti85, assistants or
Stating by sworn application the nUmb8r needed,
the po&tion to be filled and the amount to be paid.
Said application shall be aCCOmpSni8d by a statement
showing the probable r8COiptS from f88S, COUUnisSiOnS
and compensation to be COllOCtOd by said office during
the fiscal year and the probable disbursements which
shall inClUd8 all SalaKiOS and 8Xpenses Of said Office;
and said court shall make its ord8r authorizing the
appOintm8nt Of such dOpUti88, assistants and clerks
and fix the compensation to b8 paid them within the
1imitatiOnS herein prescribed and determine the
number to b8 appointed as in th8 disCr8tiOn of said
court may be proper; provided that in no case shall
the CO~iSSiOnerS' COUPt Or SlIymember thereof attempt
to influence the appointment of any person as deputy,
assistant or Clerk in any Office. UpOn the entry of
such Order th8 officers applying for such assistants,
deputies or clerks shall be authorized to appoint them;
provided that said compensation shall not exceed the
maximum amOUnt hereinafter set Out. The compensation
which may be allowed to the dOpUti85, assistant5 or
clerks above named for their s8rViCOs shall be a
reasonable one, not to exceed the following amounts:
"* + +
“3. In counties having a population of thirty-
seven thousand fiV8 hundred and On8 (37,501) and not
more than sixty thousand (60,000) inhabitants, first
assistant or chief deputy not to OXCOed Twenty-On8
Hundred (2100.00) Dollars per snnum; Other assistants,
deputies or clerks not to 8XCOOd Eighteen Hundred
($1800.00) Dollars per annum 8aCh. Provided that
nothing in this Act shall be construed as repealing
or affecting Section 2 of H, B. No. 694, Chapter 315,
Acts 1935, Forty-fourth Legislature, page 724.
n+ Y I
"9. The Commissioners~ Court is hereby authorized,
when in their jUdgm8nt the financial condition of the
County and the n88dS Of the deputies, aSSiStEUItS and
clerks of any district, county or precinct officer
Honorable Lee GUrti.5, Page 6, (o-6918)
Justify the increase,
._ - to OntOP an Order increasing
tne compensation of such deputy, assilstant or Clerk
in an additional amount not to exceed twenty-five
(25$) per cent of the sum allOWed under th8 law for
the fiscal year of 1944, provided the total compen-
sation authorized under the law for the fiscal year
of 1944 did not OXCOed Thirty-&.X Hundred ($3600.00)
Dollars."
In answer to your third question, you are advised
that the Commissioners~ Court has no authority to employ an
operator of such machine , and if one is purchased or 18aSOd
it will b8 the duty of the County Clerk, his deputy, as-
sistant or clerk to operate the same. Th8 County Clerk has
th8 8xclusiv8 authority to appoint his deputies, assistants
and clerks. He may appoint a deputy, sn assistant or a
clerk to operate such machine, said deputy, assistant or
clerk to b8 paid as provided for in Sections 3 and 9 of
Article 3902, above.
In viaw of what we have said it bOCOm85 unnecessary
to answer your fourth qUeStiOn.
We trust that the above SatisfaCtOPily answers QOUr
inquiries.
Yours very truly,
ATTORREY GERERAL OF TEXAS
By /s/ Jesse Owens
Jesse Owens
JO:LJ:EAC Assistant
APPROVED
OPIMION
APPROVED NOV 15, 1945 COMMITTEE
/s/ GroVOr SellOrS BP B.W.B.
Cm-
ATTORNEY GENERAL OF w