Case Information
*1 : OFFICE dF THE ATTORNEY GENERAL OF TEXAS
AUSTIN February 25, 2939 6.P”
.-
12. CmAos c. Ashley
Dm~ic~tAtorney
, 'c\
De3r sir: but da to beotlCb3s 3adrt333ea
Your lstter Attorney C3nsral GS on as to wh6th-
to ttie writer. fmxa its sbrfff-
er or not Eemr or deputy hire,
aasassor-co&?
68 app,pliea for. he sheriff-asses- ptie,s unaer autLo;oritp aer cna later hired ad- ahdtticmal deputies r tha ori&.nalthree is worthy oi cnroful consid- not got been cle,3$02 R.C.S., *2 us. Our108 C. Ashley, February 25, 1939, page-2
application shall be accoxpanlea by a stateiiient shovlluc the probable receipts frm fees, comlsslons ana corrpen6atloh to be COUeotod by aaid Offi dUri6g the flsoel year cod the probable disbursements which 8hd.l inOiua8 all salarias ma ex- pm366 Of YiIia OffiCO; aa SE&i OOUrt shallmke its order authorizing the ap- pointment 0r such ~depUtb36, QSSiStIXlt6 ana ~elerk6 aud fix the compensation to be paid thtxawltbin the linitationa herein pre- soribea and determine the nunbar to be ap- pointed as in the dl6crotlon of said court may be proper; provlGoa t&t In no aose 6hI.X~ the CO~zaSiOn~s' COuXt Or my mOi3- her thereof attozzpt to influence the ap- POiIltMllt Of aBy pel?SO?l a6 deguty, &SSiStaIlt or 01&c in any offioa. Upon the entry of such order-the offioars applying for such assistants, da&ties or,olerks shall be eu- tlmrizedto apgolnt theta; provided that Said ooqxmsation siiall not exceed the maxlmm amount hereinafter set out a‘* * ,?
In this instance, the Cacunisslonors~ Court dld authorize the expenditure of the amount pala, but
did not authorize the payment as mae. You have not
stated in your letter whethor or not the C&osionerd
Court has taken.any action on the annual rqort of
tb officer, whioh my be of oontrolllng inportauce
in effw.%inZ the rl3hts of the comty. 'The sheriff-
8saoesor-collcotor had no authority to anpoint depu- tics, except by the prooeduro as outlined in the
e!:ove Article 3302. Further, he had no authority to
8zroe u-&n or to pay a less zuiount to *e origlual
three deputio6 than as autl;orlced by the Cozmlssion-
crs* Cart order. :.~2rylcmcl Casmlty Coqany vs. The
+itc, 107 S,..:. (2d) 035.
The C~~ssloner3~ Court may subsequently it ;'*ly h3Ve authorlmd ori;-,%ally. .:tlfy tkt IlziPCh
3, lihore tl~ ComLosiomrs* Court a:,provos the
&!r. ca.rlOS C. Ashley, February 25, 1939, Z&e 3 i
the expenditures ln the annual report or tie oSSlcer as to paying d8putie6 not authorized to hnve hem ag- ptit8a., the county Is bound as having authorized the
deduction. Tho'Stato OS Texas vs. Carries, 106 2.3. (2a) 397; Camron countyvs. Pox, 61 ~321, (2a) 403.
fIo?mvcr, whom more than three years had elapncd aSter
the a~pointmnt und paymnt of an unauthorized deputy,
nhere tbsre was no action of ogproval token by the
CocmissloUers~ Court, and though tho County Auditor
had allowed the paymzit, the county was not estopped, i Tarraut County ~5. Smith, 81 S.P. but 00ua rocover. i 539. (2al
We believe that ,th8 procedure in Article 3902 above Is properly construed us a cadition pre-
ceaont to a county officer*8 right of appointment of
deps~W~& and hi6 rip;ht to deduct the armunt of dquty
il‘8 reoo@ize that any e~cndituro for depu- ty hire iot au authorized 0xpenditu-Pe &ves the couu-
ty a right to recover. Ikm3vsr, In this instants,
it appears that the expenditure was authorized, thou&
the ag?ointklents w8ra cot authorizedi Z:o do not be- i i i ve suffered an 1niiWyfor
-~~~-li~~ey-i~~~o~~~~~iaaa / . i '%iiid have been different BW-tbe 0fSloer appropriated the zoney to his own use
or otlmr use than deputy hire. Thor8 ~olild not be ~ 1 any question as to the county having lost its right /
to'assort the olalm, in this instance, v:hcre the Com- rninsionme~ Court has agprovcd the auditiny, and set-.
tllng of the offlo8rts account; and IS the Comiission- /
or@ Court hw mae no approval of 8xgcnditures to the additional deputies,' :ia believe that the violation
OS Article 3902 ?lould give rise to the basis for a
s.4.t in the violation OS a lec;al~right, but the theory
of dammahsque InjUria Vould preclude a recovery. In
othc-r words, ;.cmrc?. Co:,~lty has not bocn out fore t:ian
the $X00.00 a::pqved 0~;:,enditxire, nU cf ::!iioh we3 ex-
.pended Sor deputy biro.
'iie zro not c:;:lod~ upon to datomine the lia- bility as bctwcn the offiow and original d8pUtie6.
Fuxtlier, the Stnto of Te.x~s not bein< 3 party to this
.i' u. Carlos C. Ashley, Pebrumy 25, 1939, Page 4
propos0d suit and In llau OS tbis pnrtloular nitm-
tion not havine been previously detmhoa in the
courts, OUT opinion can only bo an'abotrnct otatomnt
of the applicable km iind should constitute no author-
ity for any action. Be1iovlu5 this to answer your inquiry, Wt3
are
Yours very truly ::ob