Untitled Texas Attorney General Opinion ( 1947 )

. .
MO4
March 6, 1947
Honorable David J, MOPP~S Opinion No. V-71
County Attorney
Brown County Res Authority of the
Brownwood, Texas Comaissioners’Court
to pay a constable
(on a salary basis)
mileage expense for
the use of his auto-
mobilr.
Dear Sir:
Your letter requesting an opinion from this
Department is in part a@ followa:
“I have this question at present asked
m8 by the Commissioners’Court: Uh8re a~
constablehas been put on a balarf basis,
has the Collmissloners’Court ~autherity to
pay such constablemileage fctrthe use of
his automobile?
“Apparentlythere 18 nothIng directly
on this in the,dtatutea. Prior to’being
placed on a salary, the oonstable could aol-
lect fees for mileage in serving paparp~,bulb
after being put on salary he must turnssuah
fees of service over to the salary fund.
Art. 39120, sec. 2, provides~foroaying
salary to precinct officera; Sec. 17 pra-
vides for the fixing of their salary; and
Art. 3899, Sec. B, provides for the payment
to the Sheriff’of 4# per mile for the use
of his automobilewhen he owns the automo-
bile. Can we infer fzpomthis that the Corn--
missioners’ Court would have autho&itg to
make the same payment to the constablewhen
he uses his car?
“You will readily understand that a
constable on a salary basis would have muoh
more incentive to be active in the eervloe
of papers and serving warrants if’he could
be reimbursed f’orhis expenses.”
Hon. David J. Mom111 - Pagb 2, Van
Subdivision (b), Article 3899, V.A.C.S.;
provfUss in part the following:
"The OoraissioaorsCourt of the
oounty of the eheriff'sresidencery,
upon the writton and sworn application
of raoh officrr, stating the nrcerrity
themfor, allow oae or more aut@mebil~r
to be used by the sherUT in thr Qie-
cwrgs of orrioial bu8i~e8e, wuch, is
purchassd by the county 8h&ll br be t
in the ~8.m~ prescribedby law far"thu.
pwchaae ol eupplfer and paid fop out ef
the Qsneral Pun6 of the county ad they
ah8ll be rrportel aad paid in the 8ane
naaor ,a?horoia pr4vUod fop other a-
penser.
,
En ooartruiagthr absvo qwtr& pro*18loa,WI
Departmwtf held the fO~%OW%ngti ,OuS-On k. e4-t
“By virtue of Suction B, Artlols 3899,
Vernoa'8 hnaetated Civil Statutor, the
DhOFiif b WI 4eputLos Ime UFO
On 4 8a1-r h818 YES-
Who @WSi 88d '1180
adxue@blle or WAterobilOl 35 tho biloLllr(e
of offioLb1 ba8inerr are allow04 feud aoats
for 8aOh rile traveled tn the &i8Qhar@3 Of
Hop. David S. Morris - Page 3, V-71
officialbusiness. Suoh &umahall cove@
all ex9ensee of the maintenance,degreai-
ation, and operation of such automobile ep
automobiles. Suoh mileage shall be reported
and paid In the aam% mater prescribedfor
other allowable expenses under the provisions
of the act. This act does not provide four
cents for each mile traveled by a constable
in tli%d;scbarge of his sfriclal businsss.
We quote the following from HansaomBvs. Harris
County (Clv. A99.) 243 S.W. 1002, errm refused:
'It v&a also shown by the undisputed
evidence that the expenses so incurred by
appellant in the hire of automobileswere
reasonable mnd nsc~sauy. . .
"Ye think tMt appellant was not entitled,
under aW.cle 3897 above mentioned, to deduct
fro8 ths excess fees of his office 8ue to the
count;Jexpvneea Incurred by him in the pur-
chase ef gasoline and lubricatingoils, and
in making repairs upon his automobiles,though
used by hi8 6xclualvel~in the discharge of
his duties as aherifr of Harris county. The
point was ex~rsssly~so ruled by the Galverton
Court of Civil Appeals in Harris County v.
et al., 203 8.W. 445, in a very clear
Iialmaond
and full opinion by Chief Justice Pleasants.
" l . .
'Nor do ve think t4t article 3897 authw-
IE@V a &;eriff to hizw aFtCsr@bilesovned by
other peneons for the use of the sheriff in
the conve~ancoof 9risoner8, etg., and to charge
the county vitb suoh gxfpenw. FOP, if the coun-
ty is not oh&geab, 8 vith the price of gasoline,
upkeep, etu,, of tke sheriff'sovn automobile
used In the Ulaaharge of his offioial duties, We
manot me any ~tmma 102 holdLng that the sheriff
might hire an automobilebelonging to another and
chwgr the oeunty with the cost of such hire. If
Hon. David J . Morris - Page 4, V-71
a proper constructionof article 3897
requires a holding that a nrheriffmay
hire automobilesbelonging to other per-
sons for the purpos~eof discharginghis
official duties in conveying prisoners
and election supplies, etc., to and from
different par~tsof his county, and make
the cost of such hire chargeabl~eagainst
the county, then, ,ofcourse, no sheriff
would be so foolish as to use his own
automobile in the discharge of such offi-
cial duties, and keep the same up, etc.,
at his own ex.ppense.It seems to us that
it would be nonsensical to say that a
sheriff Is not authorized by article 3897
to charge the county with oil and gasollne
used in his own automobile, or the upkeep
thereof,,whenused in the diqcharge of his
official duties in his county, and at the
same time so construe the article as to
permit a sheriff to hire another's auto-
mobile in the discharge of such duties and
charge the county therewith."
We quote the following from Harris County vs.
Hammond, et al, (Civ. App.) 203 3. W. 445:
"It goes without saying that defendant
was not entitled to credit for the expense
of operating the automobile,sfor his private
benefit or plee,sure.We are further of opln-
ion that, even when he used the automobiles
in performinp the duties of his office, the
expense of their operation sho,uldnot be PO-
garded as 'expe,nse
necessarily incurred in the
conduct,of the office."
It will be noted from the foregoing cases that
under the statute &s it then existed, the sheriff w&8 not
entitled to expen~sesfor the operation of an automobile
nor for the hire of an automobile. Although Subdiv:ision
(b) of Article 3899, V.A.C.S., how authorizes the payment
to the sheriff of four (44) cents per mile for each mile
traveled:in the discharge of official business, we are of
the opinion that the principle of statutory construction
set out in the above mentioned ca.sesis applicable to the
instant case, and a constableis not entitleU to expenses
for the operation of an automobileunless there is some
provision in the statutes 80 providing.
Bon. David J. Morris - Page 5, V-71
We fail to tlnd any statute authorizinga
oonstable cotupeasat~on a salary bseis to receive
mileage for the use of his autoaobile. In the absence
of such authority,he camwt oollect such tileage from
the county. Therefore, it is our opinion that the Cor-
m18aionerai Court of Brown County does not have author-
ity to allow a constablevho is compensatedon a salary
baais mileage for the u20 of his automobile in the dice-
charge OS oSflcis2,(hltier.
The Cornmis8ioners~Court,of a county,
the constablesof rthlehare coapensatedon
a malrry basis, has no authority to pay
such conatablsalailsagefor the use of
their autvaobllr~In the discharge of their
official d\5ties,
Yours very truly
ATTORREY OHYERAL OF TRXU
es&
JRfdjW Assistant