Tarrant County v. Smith, 13110.

• Court: Court of Appeals of Texas
• Citation: 81 S.W.2d 537
• Docket Number: No. 13110.,13110.
• Parties: TARRANT COUNTY et al. v. SMITH et al.
• Decision Date: 22 February 1935

81 S.W.2d 537

TARRANT COUNTY et al. v. SMITH et al.

No. 13110.

Court of Civil Appeals of Texas. Fort Worth.

February 22, 1935.

Rehearing Denied March 22, 1935.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by Tarrant County and others against Carl Smith and others. From an adverse judgment, plaintiffs appeal.

Reformed and affirmed.

Samuels, Foster, Brown & McGee, Jesse E. Martin, W. M. McGregor, and Cecil C. Rotsch, all of Fort Worth, for appellants.

Levy & Evans, of Fort Worth, for appellees.

LATTIMORE, Justice.

In this suit to recover of a former sheriff of Tarrant county moneys alleged to be due that county, there are four separate items involved in this appeal.

The sheriff, Smith, made application to the commissioners' court as provided by R. S. art. 3902, for authority to appoint 21 deputies. These deputies were all appointed by the sheriff and thereafter, without any order of the commissioners' court, the said sheriff appointed another deputy, Mr. Blevins, who served for the sheriff in the county court at law. Two commissioners, which two by name the appellee professed not to remember, requested appellee to give Blevins the place. Blevins worked on the same floor as was the commissioners' court room, and all of the commissioners knew him personally and probably knew he was serving in the county court at law. The judge of the county court at law signed each month a certificate to the commissioners' court that a deputy sheriff, name not given, waited on his court during the entire month.

At the end of the year appellee filed his annual report with the county auditor, showing Blevins as a deputy had been paid out of fees of the sheriff's office. No action by the commissioners' court is shown to have been taken on that report until special auditors were hired three years later, who reported this payment unauthorized, and thereupon this suit was filed.

The sheriff is under as much obligation to conduct his office lawfully as is the commissioners' court its duties. Neither is Tarrant county, but each has a bounden duty to the administration of the county affairs. The commissioners' court can limit the number and salary of sheriff deputies, but they have no power over the naming of the individuals to be appointed, and are especially prohibited from attempting any such lastnamed influence. R. S. art. 3902. Moreover, the commissioners' court does not act by the statement of one member thereof at the local drug store and another at the county victuals emporium, etc. They meet as a court and transact the county business in open session. Such requirement is not formal. It is substantial, both that the members may have the benefit of the knowledge and opinions of the other members, as well as that the public may know when and where its affairs are being transacted. Const. art. 1, § 13. Appellee thus knew that the acts of the two unnamed commissioners were without authority, and were prohibited.

Neither are commissioners members of the county detective force. They could not name the deputies of Smith, and knowledge that Blevins was a deputy would not show he was the unauthorized deputy, and, if it did, we would not attach any such consequence thereto as is here contended for by appellee. We have heretofore, in Tarrant County v. Hollis (Tex. Civ. App.) 76 S.W.(2d) 198, expressed our views about the filing of the annual report with the county auditor and now adhere to them. Cameron County v. Fox (Tex. Com. App.) 61...