Untitled Texas Attorney General Opinion

October 7, 1971
Honorable Roger M. Dreyer Opinion No. M-969
County Attorney
204 Christian Building Re: Authority of county
711 St. Joseph Street to lease two-way radios
Gonzales, Texas 78629 for a deputy sheriff
and related questions.
Dear Mr. Dreyer:
Your opinion request contains a series of questions which
may be consolidated and paraphrased as follows:
1. May the county commissioners lease two-way radio equip-
ment for use by the sheriff?
2. May the countv commissioners lease or purchase and main-
tain two-way radio equipment for the personal vehicles of the
sheriff and his deputies, including special deputies?
3. May the county commissioners lease two-way radio eaujp-
ment for the automobile of a game management officer employed
by the Parks and Wildlife Department?
The authority for the county commissioners to pay fpr the
expenses incurred by a sheriff is found in Article 3899, Vernon's
Civil Statutes, which reads in part (b):
"(b) Each officer named in this Act, where he
receives a salary as compensation for his services,
shall be entitled and permitted to purchase or charge
to his county all reasonable expenses necessary in the
proper and legal conduct of his office, premiums on
1
All Articles referred to are Vernon's Civil Statutes
unless otherwise stated.
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Bonorable Roger M. Dreyer,page 2 (M-969)
officials' bonds , premiums on fire, burglary, theft,
robbery insurance protecting public funds, and includ-
ing the cost of surety bonds for his deputies, provided
that expenses incurred for premiums on officials' 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 al-
so included, and such expenses to be passed on, predeter-
mined and allowed in the time and amount, as nearly as
possible, by the Commissioners Court once each month
for the ensuing month, upon the application by each
officer, stating the kind, probable amount of expend-
iture and the necessity for the expenses of his office
for such ensuing month, which application shall, before
presentation to said court, first be endorsed by the
county auditor, if any, otherwise the county treasurer,
only as to whether funds are available for payment of
such expenses. The Commissioners Court of the county
of the sheriff's residence may, upon the written and
sworn application of the sheriff stating the necessity
therefor, purchase equipment for a Bureau 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 Justice and/or Bureau of
Criminal Identification.
"Such purchases shall be made by each officer,
when allowed, only by requisition in manner provided by
the county auditor, if any, otherwise by the Commissioners
Court. Each officer, shall, at the close of each month
of his tenure of office, make an itemized and sworn re-
port of all approved expenses incurred 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. If such expenses be incurred in
connection with any particular case, such report shall
name such case. Such reports, invoices, and requisitions
shall be subject to the audit of the county auditor, if
any, otherwise bv the Commissioners Court, and if it ap-
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Honorable Roger M. Dreyer,page 3 (M-969)
pears that any item was not incurred by such officer, or
that such item was not a necessary or legal expense of
such office, or purchased upon proper requisition, such
item shall be by said county auditor or court rejected,
in which case the payment of such item may be adjudicated
in any court of competent jurisdiction. All such approved
claims and accounts shall be paid from the Officers Salary
Fund unless otherwise provided herein.
"The Commissioners Court of the county of the sheriff's
residence may, upon the written and sworn application of
such officer! stating the necessity therefor allow one or
more automobiles to be used by the sheriff in the discharge
of official business, which,if purchased by the county shall
be bought in the manner prescribed by law for the purchase
of supplies and paid for out of the General Fund of the
county and they shall be reported and paid in the same manner
as herein provided for other expenses.
"Where the automobile or automobiles are owned by .
the Sheriff or his deputies, they shall be allowed four
(4) cents for each mile traveled in the discharge of of-
fical business, which sum shall cover all expenses of
the maintance, depreciation, and operation of such auto-
mobile. Such~ mileage shall be reported and paid in the
same manner prescribed for other allowable expenses un-
der the provisions of this section. No automobile shall
be allowed for any Deputy Sheriff except those regularly
employed in outside work. It shall be the duty of the
County Auditor, if any, otherwise the Commissioners Court,
to check the speedometer reading of each of said auto-
mobiles, owned by the county once each month and to keep
a public record thereof: no automobile owned by the county
shall be used for any private purpose." (emphasis added).
The commissioners court has jurisdiction and authority,lfmited
to that provided by the Constitution or by law, but~the commis-
sioners court has the implied power to exercise broad discretion
to accomplish the purposes intended by any right conferred or
obligation imposed. Anderson v. Wood, 137 Tex. 201, 152 S.W.Zd
1084 (1941); Dodson v. Marshall, 118 S.W.Zd 621 (Tex.Civ.App.-
Waco, 1938, error dism).
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Honorable Roger M. Dreyer,page 4 (M-969)
Under statutes such as Articles 3902, 6699, and 6699a, the
commissioners court is authorized, in conjunction with the sher-
iff, to provide for deputies and county traffic officers. The
commissioners court is obligated to furnish transportation for
the sheriff and his deputies by Articles 3902 and 6877-l. The
authority to provide transportation under these statutes includes
the authority to reimburse the sheriff and his deputies for mile-
age driven in personal cars. The usefulness of radio equipment
in law enforcement programs is recognized by Article 3899, which
also places upon the commissioners court the obligation to pro-
vide for the necessary expenses of operating the sheriff's office.
Two-way radio equipment is an obvious incident to effective
law enforcement. Since the commissioners court is authorized to
provide for all reasonable and necessary expenses of the sheriff,
the cornnissioners may provide for the purchase or lease of two-
way radio equipment for use by the sheriff and his deputies in
accordance with the provisions of Article 3899.
Sheriffs and deputies are authorized to use their personal
cars in the performance of their official duties, and the com-
missioners court is authorized to pay mileage expenses for per-
sonal vehicles. Our opinion is that the commissioners court has
implied authority to maximize the effectiveness of that use by
the installation and maintenance of two-way radio equipment,
either purchased or leased.
Your request, insofar as it applies to a special deputy,
warrants special attention. The special deputy in question, ac-
cording to the information furnished, has been appointed by the
sheriff purusant to authorization entered upon the minutes of the
commissioners court. The special deputy serves without pay or
mileage reimbursement land has only parttime or emergency duties.
This office has previously ruled that a sheriff is not authorized
to issue commissions to special deputies to serve without offical
duties or without compensation. Attorney General's Opinions Nos.
V-20 (19471, V-1050 (1950), and R-2189 (1950). The last legis-
lature enacted special provisions for reserve deputies to serve
without pay. (Acts 62nd Leg., R.S.,1971, ch. 506, p. 1738, and
ch. 829, p. 2531). If the special or reserve deputies are ap-
pointed in accordance with the law, the commissioners court has
the discretion to determine if the purchase or lease of two-way
radio equipment for the special or reserve deputies is a reason-
able and necessary expense of the sheriff.
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Honorable Roger M. Dreyer,page 5 (M-969)
Your third question concerns furnishing of radio equipment
for the state-owned vehicle of a game management officer. This
officer is employed by the Parks and Wildlife Department under
Article 978f-3a, Vernon's Penal Code , and does not work directly
under the commissioners court or the sheriff. The information
furnished with your opinion request indicates that the radio is
desired primarily so that the sheriff can maintain contact with
the game management officer. No statutory authority expressly
authorizes county commissioners or the sheriff to provide radio
equipment for a game management officer y*vhois not employed by
the county. This office has previously ruled that a sheriff is
not authorized to transfer to a constable radio equipment fur-
nished the sheriff's office. Attorney General's Opinion No. R-
2442 S 51 (1951). The only possible authority for furnishing the
radio is the provision of Article 3899. that a sheriff is entitled
" ...to purchase or charge to his county all reasonable expenses
necessary in the proper and legal conduct of his office...;* but
this provision is restricted to expenses relating to the conduct
of the sheriff's office. The authority of a commissioners court
must ultimately rest upon a constitutional or statutory basis.
Canales v. Laughlin, 147 Tex. 169, 214 S.W. Zd 451 (1948). Since
no statute expressly or by implication gives the commissioners
court or the sheriff authority to provide radio equipment to
someone not employed by the county commissioners or the sheriff,
our opinion is that the commissioners court may not furnish two-
way radio equipment to a game management officer employed by the
Parks and Wildlife Department.
SUMMARY
In accordance with the terms of Article 3899,
Vernon's Civil Statutes, the conunissioners court is
authorized to provide for all reasonable expenses
necessary in the proper and legal conduct of the
sheriff's office and may, in its discretion, pur-
chase or lease and maintain two-way radio equip-
ment:
1. For use by the sheriff and his deputies;
2. For installation and use in the personal
cars of the sheriff and his deputies when the
vehicles are used in the performance of official
duties8
3. For installation or use in the personal
vehicle of a special or reserve deputy sheriff
when the deputy is appointed in accordance with
the law and the vehcile is used in the performance
of official duties.
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.. .
Honorable Roger M. Dreyer,page 6 (M-969)
The commissioners court has no authority to
purchase or lease two-way radio equipment for use
by a game management officer employed by the Parks
and Wildlife Department.
C. MARTIN
Prepared by Roland Daniel Green, III
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Gordon Cass
Max Hamilton
Ben Harrison
Sam Jones
SAM MC DANIEL
Acting Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant
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