Untitled Texas Attorney General Opinion ( 1942 )

Honorable Nolan Queen
Criminal District Attorney
Park~erCounty
Weatherford, Texas
Dear Sir: Opinion No. O-4719 "'
Re: County is not authorized to pay'
expenses of office of Justice of
the Peace on fee system and re-
lated matters,
Your request for opinion has been received and care-
fully considered by this deparment. We quote from your re-
quest as follows:
"Some questions have arisen with reference to
items of expense and charges of the Justice of the
Peace here in Weatherford, which is a fee office.
We find in auditing, that the Justice of the Peace
has filed each month, as expenses, so much for a
stenogrspher, and $12.50 as average car expense in
coming to and from the~.office,and so much for
stamps, for which he has no purchase receipts, but
is an estimate only.
"NOW, I find that the Commissioner's Court,
during the last year, 1941, approved these several
items on the expense account of the Justice of the
Peace. All of these Items were paid out of the
fees of the office, but this year, it is very doubt-
ful whether or not there will be any excess fees of
office, and in that event, it is the opinion of the
Justice of the Peace th t these expenses should be
paid by Parker County, wa ether he has any excess
fees or not.
"Now the question is whether or not the sten-
ographer's fee, the travelling expense fee and the
stamp expense can be legally charged by the Justice
of the Peace to Parker County. There is no record
that the Commissioner's Court has ever approved
the appointment or selection of a stenographer, nor
is there any record where the Justice of the Peace
ever filed any application for authority to employ
a stenographer.
e -. ..,
Honorable Nolan Queen, page 2 O-4719
"In as brief a way as,possible, I have tried
to state the questions involved, and would appre-
ciate very much your opinion at your earliest con-
venience as to whether~or not-these items of ex-
pense under the Circumstances, may be legally
charged by the Justice of the Peace, and paid by
Parker County.
11
. . . . ,I
Subdivision (a) of Article 3899, Vernon's Annotated
Texas Civil Statutes, reads in part as follows:
"Art. 1899. 1897 Exaense account
(a) At the close of each month of his tenure
of office each officer named herein who is com-
pensated on a fee basis shall make as part of the
report now required by law, an Itemized and sworn
statement of all the actunl and necessary expenses
incurred by him in the conduct of his office, such
as stationery, stamps, telephone, premuims on offi-
cials' bonds, including the cost of surety bonds
for his Deputies, premium on fire, burglary, theft,
robbery insurance protecting public funds, travel-
ing expenses and other necessary expenses.
The amount of such expenses, together with tie' '
amount of salaries paid to Assistants, Deputies
and Clerks shall be waia out of the fees earned bs
such officer. . . . ." (Underscoring ours)
Article 3902, Vernon's Annotated Texas Civil Sta!tutes,
reads in part as follows:
"Whenever any district, county or precinct
officer shall require the services of deputies,
assistants or clerks in the performance of his
duties he shall apply to the County Commissioners'
Court of his county for authority to appoint such
deputies, assistants or clerks, stating by sworn
application the number needed, the position to be
filled and thenamount to be paid. Said applica-
tion shall be accompanied by a statement showing
the probable receipts from fees, commissions and
compensation to be collected by said officer dur-
ing the fiscal year and the probable disbursements
which shall include all salaries and expenses of
said office; and said court shall make its order
authorizing the appointment of such deputies, as-
sistants and clerks and fix the compensation to be
Honorable Nolan Queen, page 3 o-4719
paid them within the limitations herein prescribed
and determine the number to be appointed as in the
discretion of said~court may be proper; provided
that in no case shall the CommlssionePs' Court or
any member thereof attempt to influende the appoint-
ment of any person as deputy, assistant or clerk in
any office. Upon the entry of such order the of-
ficers 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 deputles, assistants or clerks
above named for their services shall be a reasonable
one, not to exceed the following amounts:
11
. . . . .,,
It is our opinion that under Subdivision (a) of Article
3899, V. A. C.S., supra, the legitimate expenses of office of
a Justice of the Peace operating under~ the fee system must be
paid from the fees of his office and cannot be paid by the
county. We therefore answer your question in the negative.
We also wish to point out that the Justice of the
Peace has no authority to employ a stenographer. However,
he could employ a clerk if authorized by the Commissioners'
Court under Article 3902, V. A. C. S. It is a matter for the
Commissioners'Court to determine whether an employee of the
Justice of the Peace is a stencgrapher or a clerk. (See
opinion No. O-1874 of this department, a copy of which is en-
closed herewith for your information). If the Justice em-
ployed a clerk without authorization from the Commissioners'
Court in the beginning but such employment was later ratified
by the Commissioners' Court, the same would constitute a
legitimate expense of office which the Justice could pay out
of his fees of office. (See Cameron County vs. Fox, 61 S.W.
(2na) 483).
You further state that the Justice merely estimates
the amount of his stamp expense. This is improper ana the
Commissioners' Court is not authorized to accept a mere esti-
mate of expenses. (See the case of Pierson, Justice of the
Peace, et al. vs. Galveston County, 131 S.W. (2nd) 27).
You also state in your letter that the Justice claims
traveling expenses for "coming to and from the office". This,
we think, is purely a personal expense and not an expense of
office.
. .-..
Honorable Nolan Queen, page 4 O-4719
But in any ana all events, non6 of the items of ex-
pense-~setout in you letter, whether legal or Illegal, could
be charged to the County under the facts stated.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/k%. J. Fanning
Wm. J. Fanning
Assistant
WJF:mp:wc
&El,
APPROVED JULY~31, 1942
s/Gerald C, &M
ATTORNEY GENEEAL OF TFXAS
Approved Opinion Committee By s/EMS Chairman