Untitled Texas Attorney General Opinion ( 1949 )

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~70
169 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 County 116 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