DocketNumber: V-908
Judges: Price Daniel
Filed Date: 7/2/1949
Status: Precedential
Modified Date: 2/18/2017
Hon. Clyde Boose Opinion No. v-908. County Attorney Nolan County Re: Authority of the Com- Sweetwater, Texas mlssloners~ Court of Nolan County to pay a salary to or the expenses of a Volun- teer Parole Officer of Nolan County, who was appointed and com- mlsslone~~by the Gov- Dear Sir: ernor. We refer to your recent request for an opinion. The question submitted for our consideration Is, ln sub- stance, as follows: Does the Commissioners' Court of ~Nolan County have authority to use the County's.funds to pay a salary to or the expenses of a Volunteer Parole Officer of Nolan County, who was appointed and contulsslonedby the Governor? Before we can answer your question, It must. first be deteralned whether there exists In Nolan County a public office, the lncumb&nt of which Is offlclally known as a Volunteer Parole Offlcer'of Nolan County. If no such orflce'~exlsts,it hecesiarlly follows there can be no such officer. In thls,State public offlcers~are created by law and none can exist except by Its sanction. Some of- fices are created by the Constitution and oth?rsby stat- utes. 34 Tex.Jur. 326, Public Officers, Sec.5. The Legislature Is the department of government ln which re- Poses the law-making ower of the people. Terre11 v.118 Tex. 237
, 1t S.W.2d 786 (1929). The creation F an office is peculiarly a legislative matter. Weaver v. Commissioners1 Court of Nacoxdoches Count& 13m ~prlnclple thai an of;lcedcornesInto existence only when created by law. City of San Antonio v. Coultress,169 S.W. 917
Hon. Clyde Boose, page 2 (v-908) (Tex.Clv.App.1914). Neither the Constitution nor the Legislature has created a public office to be filled by a person whose official title Is that of a county volunteer pa- role officer. It Is a well known fact that ln most of the counties of this State there Is a board known as "volunteer parole board," which Is composed of persons laro~nas "volunteer parole officers." So, when we speak of the Volunteer Parole Officers of Nolan County, or of any other county, the Inference Is that such an officer Is a public officer. How these term orlgfnat- ed and came Into colnmonusage are revealed by the hls- tory of their origin, as we understand It to be, which Is as follows: Governor Jas. V. Allred,~du.rlnghis adminiS- tratlon as Governor, 1935-1939, realized that a convict released from the penitentiary on parole or condltlon- al pardon should be under some supervision upon hls re- turn to the county in which he was convicted or same other county of this State to which he was authorized to go by the Governor's proclamation releasing him from prison. Since the Legislature had made no provision whatever for any klnd~ot such supervlslon, he conceived the Idea of requesting one or more reliable private clt- hens, who were interested In the rehabllltatlon of prisoners so released, to voluntarily assume certain duties pertaining to such parolees and pardonees ln their respective counties, and to whom he could re ulre prisoners so released to report ror supervision. 't For the purpose of this opinion, It is not necessary to set forth other respective duties of the citizen and prlson- er, for they may not have been the same ln all instances,) When a citizen advised the Governor of his wllllngness to serve In such caaaclty, the Governor notified him that he had been appointed a volunteer parole officer of the county of his residence. Such officers constituted the volunteer parole boards of their respective coun- ties. They have performed splendid services, and It Is unfortunate that the Legislature has not given them of- ficial status. The policy of appointing such parole officers established by Governor Allred has been continued by his successors in office down to the present time, for the same reasons which occasioned Its establishment in the first Instance. Hon. Clyde Boose, page 3 (v-908) We are not Informed whether It has been the uniform policy or practice of each Governor to Issue a commission to each voluntary parole officer on the form used by him for commissioning public officers In actor- dance with the provisions of Article 3040, V.C.S. Be that as it may, the fact that a person was Issued a com- mission In which he was designated a Volunteer Parole Officer of Nolan County, as was done In this Instance, would be ineffectual to make that person a public of- ficer unless such an office had been first created by law. His status Is that of a prlv&e citizen performing certain voluntary duties at the request of the Governor for a worthy purpose, and for this he should be highly commended by the citizens of this State. Therefore, the answer to your question Is controlled by the pro- visions of the Constitution, statutes, and authorities hereinafter cited. Section 44, Article III of the donstltutlon, provides: "The Legislature shall provide by law for the compensation of all officers, servants, agents and pub- llc ctntractors, not provided for in this Constitution. . m . In 34 Texas Purlsprudence 512, Public Offl- cers, Section 108, It is said: "To entitle a person to recover emol- uments of an office, he must show that he Is an officer de jure, that the office has been legally created and Is In existence, and that he has been legally placed there- in and has a legal right thereto. The stat- ute (Art. 6828) expressly prohibits the pay- ment or allowance of the claim of any per- son Sor compensation aa an officer, unless he has been duly elected or appointed as such officer . . . and has q\allfled as such of- ficer according to law. (Emphasis added) Section 18 of Article V of the Constitution of Texas creates the commlssloners' courts, and confers up- on them such powers as are granted by the Constitution and laws of this State. Such courts are courts of llm- lted jurisdiction, having no authority except such as Is expressly or lmplledly conferred by the Constitution and statutes. Anderson v. Wood,137 Tex. 201
,152 S.W.2d 1084
(1941); 11 Tex. Jur. 563, Counties, Sec. 36. Hon. Clyde Booee, page 4 (v-908) Section 52, Article III of the Constitution of Texas, provides the Legislature shall have.no power to authorize any county of the State to lend Its credit OF to grant public money or thing of value In aid of, or to any Individual, association or corporation whatever. Section 3 of Article VIII of the Constitution of Texas, reads: "Taxes shall be levied and collec- ed by gener$ laws and for public pur- poses only. In the case of Howard v. Henderson County,116 S.W.2d 479 (Tex.Clv.App.1938 error ref.) the Court, after citing the pertinent p;ovlslons of iectlon 52, Article III, and.other provisions of the Constltutlon, said: "Giving effect to llmltatlon on the Legislature to confer power on counties and municipal authorities to grant public moneys to lndlvlduals, and to make con- tracts, the courts of this State have unl- formly recognized that a commlsslonerst court cannot bind the county by ordering a claim to be paid, which Is not made a charge against the county, or made a con- tract not within the limits of their power. The want of authority 1s jurisdictional; its action ir.so doing has no conclusive or binding effect, but, on the contrary, 13 void." When a commlrsloner3' court approve3 a claim against the county without lawful authority, its action Is wholly void. and notwlthstandlnz the fact that such unauthorized cialm was voluntarily-approved and paid by the county. Cameron County v. Fox,2 S.W.2d 433
(Comm. App.1928), and numerous authorities there cited. It necessarily follows from what we have said that, in our opinion, your question must be answered In the negative. SUMMARY Public offfces can only be created by the Constitution or the Legislature. Terre11 Clyde Boose, page 5 (v-908)118 Tex. 237
,14 S.W.2d 786
(1929); Commissioners' Court of Nacog- ~~p's3~,0~'~'v14~0~i:,~~s~70169 S.W. 917
(1914); 34 Tex.Jur. 326, Public Officers, Sec. 5. Neither the Constitution nor the Leg- islature has created a county volunteer pa- role office. The Commlssloners' Court or Nolan County has no authority to use coun- ty f'undsto pay a salary to or the expenses or a Volunteer County Parole Officer of No- lan County, who was appointed and comls- sloned by the Governor, for the status of a person so appointed and commissioned Is that OS a private citizen performing cer- tain voluntary duties, upon request of the Governor, pertaining to the supervision of certain parolees and pardonees. Tex. Const., Art. III, gets. 44, 52; Art. V, Sec. 18; Art. VIII, Sec. 3; Anderson v. Wood, 137 Tex 201,152 S.W.2d 1084
(1941); Howard v. Henderson County116 S.W.2d 999
(Tex.. App.1938, error gef.); Cameron County v. Fox, 2 SiW.2d 433 ($oinm.App.l928J;Ar mo, 6829, v.c.s.; 34 Tex.Jur.512, P% llc Officers, Sec. 108. Yours very truly, ATTORNRYGRNRRALOF TEXAS /3---w- BWR:eb:mw BY Bruce W. Bryant Assistant ATTORNgY GENERAL