Case Information
*1 Honorable A. A. Miller opinion ITO. O-1206
County Attorney Hcwton county Re':, May fees undqr Article 1055, Newton, Texas Co& 'of Criminal Procedure, as
amended, 46th legislature, be peid.by warrant out of the jury Dear Sir: fund of the county.
Your request for an opinion of this Department under date of July 29, 1939, reads substantially 8s follows:
Under Article 1055, as amended, by the 46th Legislature, House Bill 190. 205, authorizing the county clerks to "issue his warrants on ,the county treasurer .in favor of such officer, to be paid out of the road a$ bridge fund, or other funds not otherwise appropriated," can the county clerk issue his warrant to be paid out of the jury fund, if there be an excess?
The above portion of Article 1055, Code of Criminal Procedure, as amended, which is correctly stated in your request, authorizes such fees to be paid out of the road and bridge fund or other funds not otherwise appropieted. The jury fund of the county is a constitutional fund, being made up of taxes levied under the constltutionsl limits and certain statutory funds which are specifically appropriated and dedi- cated to specific uses.
Article 1628, Revised Civil Statutes, 1925, relating to the jury ~fund, provides:
?Phe funds received by the county treasurer shall.be classed as follows, and shall be appropriated, respectively, to the payment.of all claims registered in the first, second and third classes: (1) All jury fees, all money received from the sale of estrays, and all occupa- tion taxes."-
Article 1626, Revised Civil Statutes, 1925, claisifyhg all cla~ims against e county, directs that all jury scrip and scrip issued for feeding jurors are payable out of funds so received of the first class.
Article 1630,, Revised Civil Statutes, 1925, provides: "The commissfoners' court by en order to that effect may transfer the money in hand from one fund to another, as it may deem *2 Hon. A. A. Miller, pege 2 (0-1206)
necessary and proper, exceptthat~the funds which belong to class first shall never be diverted from the payment of the claima registered in class first, unless there is an excess of such funds." (Underscoring ours)
The Supreme Court in Carroll v. Williams, 202 S. W. 504, held that the foregoing statutes only applied to those fund8 purely statutory and that Article 1630, supra, should not be held to embrace any of the five classes of county fund8 specifically designated in Section 9, Article 8, of the Constitution of Texas.
Any effect to be given Article 1630, supra, es to the transfer of county fund8 should bs con8idered in the light of the opinion of Carroll-f. Williams, euprs, and cases cited therein which furnish u8 the only authorities involving this statute and its effect under Article 8, Section 9, of the Constitution relating to the transfer of county funds. In pasein g on whether or not a legal excess would exist as would authorize a transfer and if 80, into what funds, constitutional or special, asme may k transferred, all facts necessary to present to this department the actual condition of the county's finsnc88; the stetu8 of each fund measured by the current,demands chargeable against same and th8 various tax rates and assessments effecting the particular funds would have to be considered. The single proposition remains that until ruch legal transfer is made, any excess remains a part of. the jury fuud~and by the Constitution and statutes, such fuud is appro- priated for specific purposes.
In viewing authorities cited herein, it appear8 that the
following settled rules govern such transfers, keeping in mind that such cla88e8 of funds authorized by the Constitution and statutes are appropriated to the several classified purposes; first, the commis8ioner8' court may not, by any unauthorized classification, defeat the payment of just claims or destroy the right of holder8 of registered clais; ,, under Article 1627, Revised Civil Statutes of 1925, to have their claima paid out of the appropriate funds in the order of registration. Clark and Courts v. San Jacinto Comty, 45 S. W. 315; second, where a tran- sfer is made into a constitutional fund, which vi11 swell the expendi- tures therefrom for any one year beyond the limitation of the tax rate levied and moneys raised for the purposes for that particular cl.ss8 funds, such transfer would be prohibited. Carrollv. Williams, supra,
It is, therefore, the opinion of this department that the county clerk is not authorized to issue his warrant on the county treasurer, to be paid out of the jury fund, in favor of any officer for fees accruing under Article 1055, Code of Criminal Procedure, as amendedby the 46th Legislature. Whether a legal excess can be deter- mined~to exist in the jury fund and a condition exists authorizing the transfer of such excess and into what fund, depend8 upon all facts developed showing the true condition of finances of a county includ- ing the status of the particular fund affected.
Yours very truly APPROVED CCT 4, 1939 AITOPKEK CEIERALOFTKKAS By /a/ Wm. J. R. King WMK:IM:br Wm. J. R. King Is/ W . F. Moore Assistant FI2STASSISTAIiTA!lTORKKI @NEPAL