Untitled Texas Attorney General Opinion

Y GENE

November 8, 1961

Honorable Naomi Barney Opinion No. ??;I-1191 County Attorney Potter County 3e: Under the facts p-lesentec‘, Amrillo, Texas whether Potter County is legally liable for the salary of T. H. Nail, a deputy sheriff, frsom April 1.)1960, the ,&?.ti' of his discharge by the Sheriff of Pntter Count3 to January 1, 1961, the date the sheriff ended his tern2 0P office 2n", related questions. Dear Miss Harney: you have requested an opinion of this offiCe as to whether Potter County is legally liab.lefor the salarieS of former Deputy Sheriffs T. H. Nail, Gcrdon 3. Bufkin, and Curtis Travis from April 1, 1360,, the date of thei S;US- pension, to January 1, 1561, the date the C'heri,:?~f en<.edt1C.s .t.err.: of offtce. The Tacts a::presented in your ietter o;‘Z'eyuest. are 2s fojlows: "On March 23, 1950, folZ.owingthe HCUs:E Investigating Committee hearings in Potte:i, County, three deputy sheriffs, MT. ‘r.II.NaLI, >lr.Gordon R. Bufkin, and.?;I::. Curtis Travi~s, were suspended. Attached.hereto 3.~a phctostat~c copy of the minutes of the ,~oainissToners' Co!uY't relative to the sutpecs-ioa, ~. .

Honorable Naomi Harney, page 2 (WW-1191)

before the Grand Jury. The indictment was dismissed by the Court because it was insuf- ficient to allege the offense of Perjury before the Grand Jury." The photostatic copy of the letter written by Paul Gaither, Sheriff of Potter County to the Commissionerst Court on April 1, 1960 is quoted as follows: "Amarillo, Texas "Commissionersl Court April 1, 1960 Potter County Amarillo, Texas "Gentlemen: "In regards to your instructions to suspend Chief Deputy C. E. Travis, Captain G. R. Bufkin at-k. deputy T. H. Nail, this is to advise that these deputies have been relieved from duty, effective April lst, 196~ and all County property, commissions and badges have been turned in by them. "Effective same date, Mr. Ben Andis has been appointed acting Chief Deputy, Yours truly, Paul Gaither Paul Gaither, Sheriff" cy - Audrey Kaufman George Fox

Article 6869, V.C.S reads in part as follows: "Sheriffs shall have the power, by writing to appoint one or mare deputies for their respective counties, to continue in office during the pleasure of the sheriff, who shall have power and authority to perform all the acts and duties of their principals . . .' Thus, it is clear that, under the provisions of Article 6869, the Sheriff has full power to appoint the deputies who will serve under him and also has full -oo:'i(:r to terminate their services at any time he may see fit. The term of a depcty sheriff is not fixed by statute an'. the power to "hire" and "fire" is an incident of the power of appointment given the sheriff. The office of deputy sheriff is therefore held only during the pleasure of

Honorable Naomi Harney, page 3 (W-1191)

the sheriff. In the case of Murray v. Harris, 112 S.W. 1092 (1936), the court said at page 1093: "The statute conferring upon the sheriff the power to appoint deputies fixes no definite term of office, but provides that the tenure si?allbe at the pleasure of the sheriff, which is tantamollnt to a provision that both the appointment and tenure are discretionary with him . , ." The reasons given for the dismissal of the three deputies by the Sheriff are immaterial, the primary consid- eration being whether or not the deputies were, in fact, relieved of their duties by the Sheriff of Potter County and further services discontinued. We think it clear that. the Sheriff of Potter County discharged deputies T. H. Nail, Gordon R. Bufkin, and Curtis Travis from duty effectivf April 1, 1960, as evidenced by his letter to the Commis- sioners' Court of Potter County on April 1, 1960, Andy reflected in the official Minutes of the Commissioners' Court of Potter County, meeting in session on March 2e, 1960. On that date, their tenure of office was ended, their services terminated, and, consequently, they were no longer entitled to their salaries. Therefore, it is the opinion c1.C this office tbit, deputies T. H. Ua.11,Gordcn R. Bufkin,,and Cur+,isTravis were reli,evedof their dutie,?by tbe Sheriff of Pi7fter county, effective April I, l$O, and :,~t~::~t Poti;;-:r Co,~n?:: I~: not legally liable for the salaries o? T. H. Nali, Gordo:? R. Bufkir, or Curtis Travis ~YXI Aprjl i, 1960, t#rJG& :.e of their discharge by the She131ff,,toZir:~uary1, ig61, 'be date the Sheriff ended his term of c:<fice. S ?jTfl F/l A R -f

Potter County is not lia'o'le for the salaries of deputies T. H. Nail, Gordon R. B&kin and Curtis Travis from Apr'.l1, 1960, to January 1, 1961, the three deputies having been relieved of their duties as deputies by the Sheriff of Potter County on April 1, 1960. Under the authority of Article 6869, V.C.S., the Sheriff has full power to discharge deputies who work under him at his pleasure.

. . Honorable Naomi Hafrney,page 4 (MM-1191)

Very truly yours, WILL -.:ILSON

L./s__w,, ! torney General of Texas

By Iola Barron 'vlilcox Assistant c

APPROVED: OPINION COMMITTEE W. V. Geppert, Chariman Howard Mays Elmer McVey Grundy Williaos Riley Eugene Fletcher

REVIEWED FOR THE ATTORNEY GEMER:.% BY: Houghton Brownlee, Jr.