Untitled Texas Attorney General Opinion ( 1947 )

,. R-465 OFFICE OF TRE ATTORNEY USENEW I May 20, 1947 Hon. Royce Whitten County Attorney Lamar County Paris, Texas Dear Sir: 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 oon- cerning 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 basis. "(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 dis- cretion 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 thirty- seven thousand, five hundred and one (37 501) and not more than sixty thousand (60,OOOj inhabi- tants, 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 pro- visions of Article 3883, . . . "In counties containing as many as thirty- five 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 of- ficers named herein shall 'retainone-third of such excess fees until such one-third, together with the amount spec,ifiedin Article 3883, a- mounts to Forty-two Hundred and Fifty Dollars ($4250). Precinct officers shall retain one- third 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 of- ficers 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 of- fiaers 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 ex- penses incl~udingthe expenses of gas, oil and a reasonable e- mount 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 con- stable to be used by a constable in the discharge of his offic- ial 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 compen- sation 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 pur- chase a new automobile out of fees of office. Yours very truly ATTORNEY GENJIRkLOF TEXAS Assistant ATPROVED ATTORTGX GENERAL JR:jrb Enclosures