Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

Hcinorable D. Riotwd Voges

County Attorney

Wilson uounty

Floresvllle, Texas

Dear sir1 Your reqwat for op

oarefully~mside~dbythis

letter of request aa id.lava:

&all attend t ahall r6cei

ia 1907, rtn order onem* Comt of Wilson 8uthority &ranted by oxu Statuter, 1936, and e8 OS the Ccaanisrioners~ ounty Court vould in rddttlan to term of the County Court, a8 ale 1961 haYa rlxaddLtlaaP1 unto court, en- UAO day e&a.

this day neUiher the County Judge, nor I, the Sheriff or the Attorneya of Wlllrm CountyJnww t&atswhoxWrhadbeengsaaedin 1.907. TherefOre the Bhertif' h88 never pres6&&d t&l8 one day of the oomts a bill for att faut, attend this l3ourt apI oourt, nor did the cne day of the 8lxaddltlaLpltWJM Of the uourt.

BonombleD.RiohardVoges, Page2

"Please advise me whether or not the Sheriff & entitled to oompensatlon as provided under such clrcumstance89

"It la amtemplated by the Oomnlsslmers~ Cowt to pass a new order, extending the six ad- dltlonsl terms of the County Court from me day to three weeks erch. However, sitme it la not expeoted to have a jury for eaoh term of aald Court, nor is it thought that very muah business vi11 be disposed of, and sina the Sherlii will not bo required to be 3.n att&Manae of said aourt, and actually will not be in attendance, unless a aase is 01 trl.al, will the fees provided in the above quoted Artlale have to be paid.

"The reasm that we desire to extend the terms of the Court from one day to three weeks is that we do not vimt to keep a persaa ohrrged vith a ailsdemeanor in jail to avalt trial In the County Court for thxwe or four veeka , and vould rather have ten terms, m permltted by law, for three weeks each and in this way ve oould dispose of our Co~tyOourtIlclsdenwn61. aa8es In 8hortorder,how- ever, if It is required to pay the Sherfff Four Dollars perdayfor eaehday of the oourt, the Ooun- tg aan not afford to do so.

"In thla ocmnectlcm, in view of the holding In the case of Bums w. State, 61, 8. Y. (2d) 313, Justloe Christian used the following wordar

“Where the law fixing the fee la settled and plain the rule, in its rlgor, will be applied.'

"The sheriff of this County under our statutes is a fee offlcer and la entitled to anly swh fees aa are specifloally allowed by atatutee.

county Cattle company w. UoDermett 281 S.“:?%3.

"Fees by lmplioatlon are not permitted. Ho- Calla vs. City of Rookdale et al, 246 8. W. 654.

"Sheriff is not entitled to $2.00 a day for attending on Ccmmrissl~ers~ Court but hla aompensa- tlca wa8 the ex-orfioio allowanoe uader Article 39%. Robinsoa vs. Smith Uounty, 76 8. W. 584.

Bonorab1e D. Riohwd VOgeS, Page 3

"I am of opinion that the Sheriff vould be entitled to pay for eaoh day of the County Court whether or not he or his deputies be in attendance so long as they were in and about the Courthoune end tither or not a case was being tried. I am ala0 of the oplnlrm that if the court advised the Sheriff that hi8 atten- dame was not necess~y, that the Sheriff nevertheless be entitled to Such pay."

The poptitim Of WilSCZi OOrm , T~x%S, 18 Seven- teenThou8endSixEundredendSlx (17,606 inhabihds ao- "I cordkg to the lsat preoedlng Federal Oensua and the couutg

OfflCitiS Of soid COlXity al'8 O~Sated Op 0 fee baSi8.

Artlole 3933, Revised 01~11 Btatuter of Texas, NlsdS in PlWt M fO11OWSl

"aher1ff0 Sb11 xwoelve the following fees: “For every day the Sheriff or hi0 deputy Shrl1 attend the d%Striot 02’ Oolmty OoUI’t, he SW1 rewlve four dO11WS (44) a day to be paldbythe county for eaoh day that the sheriff by blnmelf or 8 deputy shall rttand safd oourt."

Thla department& repeatedlyrulsdthat8sherlff la entitled to pay for attendpnoe upcm the court under Artiole only when then aourt 18 aetuol1y In UeeSiQl ,sad 3933, SUprO, not -8 merely 0QlStl’UCtiVdy ill sessicm.

We quote from en OpzniCa of this department, dated September 28, 1937, ad&eaSed to Honorable Be'; J. Deen, ~a f011ow31

"In an opinion here:;ofore rendered by this department on Februwy 21, 193, whlah was ruled that the sheriff vaa antitled to the feea mentimed. . onlywhslr the court Y88 8OtUdly in EW388iC?& The oplnim OC1ll8trUeS the phrase taotually in seaalmt to mean the presence of the judge, and it also points out the fact the judge muet assume the benah and pro- seed with the business of the court. This Opin- ion has been followedbythia department on numerous 0ccas1on0."

Honorable D. Richard VOgeO, Page 4

We qUOte from oplnlca no. 0-966 of this departmeat, dated June 13, 1939, as follcuer

"You are B38peCtftilp advised that it I.8 the opinlan of tbi8 departmrrmtthatthe sheriff of Walker County is entitled to $4.00 each day he is actually in attendance upon the court 8tiCe the St8tUt8 Speoifles that thi8 SUm 18 to be paid for each day that the sheriff OP his deputy sbll attend said oourt. p%?%&E

should be allwed where there ie no BIIC aawe even though the court may be in setlsim md is performing its varlou8 duties where court 18 required to perform my Anrotima mere the attendauce of the sheriff or his deputy ia

tb b lnmlndthat nt%%F=== u 08 permittl73gFEmpdml It to pub110 of- ficials must be strlotly oanstrued and it is a settled policy of the oourts not to permit the payment of f88o or other form8 of ooqmnscrtlca, ~mleas the statutes 8peolfloal.ly and cleazly au- thorize the Same.' (Wd8l'8UOl'~g Ours)

In ausweito your filrstqufmtim,w.Lderthe facts Stated in parPgl'aphf4 3 and 4 OfgoUl' letta, Vh9l’eiU it ^[18] admlttedthatthe SherLffva8notl.n attendanoe on the oounty cour?t,ltiathe opinlm of thla depeMmmtthetthe sheriff vould not be -titled to CompemJatlcn uuder suoh clroum8tano88 end your first questlan is therefore auswered &I the negative.

With refersace to the frets atated and the questime roised In paragraphs 6, 7 pnd I.2 of your letter, you are respectfully advlaed that it is the opinion of this dePaFtment, uuder said facts:

1. The sheriff vould be entitled to pay for wh day the judge required him to be In 8tteudance an the oouuty court vhile Said comt vas actually in sessim as defined above.

2. The sheriff vould be sntltled to pay for each day he attended comity court actually ln seegllon where hi8 at- tendance was necessary. In the absence of abufse of dlecretlon or capricious w arbitrsrg omduct on the part of the oomty judge we th&lc the aounty judge@8 decielcm as to whether or not the attendance of the sheriff on county court VOB nece88m& would be cmtrolllng.

Honorable D. Richard Vogea, Page 5

3. The ahbrlff would not b8 entitled to aompm- satlca in aueh olroumstancsa if hla attendance aa court vaa neither necessary nor required.

4. If the judge required the sheriff to attxmd the COUI-t Vh~l.l8 it YM aCtIdly in se88iw or if the ah8riff attended such court while it vaa aotually in aeeslcn vhen it was necessary th8n the sheriff would b8 entitled to oom- pcmsation.

Trusting that this satlsfaatorlly anavers your inquiry, and xlth best regards, we u-8 your8

very truly Al’TOBliEY GElW3AL OF TEMS WJFrAW

QvBDX4RCE28,1!#0

PPROVED: OPznIcm 00HuTTEE ATTORlQYX - OF TBXAS By: B.W.B., ChaIrmm