I 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Ffonorab3.b 3. H. arlffln 

County Attoamy 

Young county 

Graham, Toxaw 

Dear Sir; 

the shedif udder ?qection 

J 

of; Artlole 1040 COP 

is not a re0 or xtrrbe BIL a0949 not have to be 

~~~~~~t~~~~~~ ,you OpWon above 

lease *ime nekhiah or these authorities 

~~u.l be.fo~$n&. In 80 far as. I have bean able 

to‘det&aine ybur @pinion haa never been, by youl' 

dspakgman~, m&iridd or reverse&n 

\ / ,/' 

w& &f&on No. o-2972 was written we aarefullg 

aonsidered thss~xoagee of Harris County v. Hammond et al., 203 

8. ;q. 445; Blnford v. Harris County, 261 8. ?I. 535; Nolan 

County v. Yarbrough, 34 5. ‘:f. (2) 302, and the authorities 

cited therein and reaognized that these cases held, anon& 

other things, that the fifteen cent8 p~OVid0d iOF under seation 1 or Mticle 1040, Vernon's Annotated Code of Crlninal 

Procedure, did not oonstltute a fee of ofiioe that had to be 

aooounted ror as suoh. i!owever, in view of Artiole 3891, 
Honorable E. H. Griffin, Page 2 

Vernon’8 Annotated Civil Statutee, as amended sinae the opfnions in these aaaoa were rendered, whiah provides in part: 

“. . . . 

-The compensation, llniitationa end maximuma 

&rein fixed ahall also apply to all lees and 

oompensatlon whatsoever oollaotsd by said oriioer8 in their ofriolal oapaaitp, whether accountable as fees of ofrioe nnder the present law, and 

any law, general or speofal, to the oontrary is 

hereby expressly repealed. The Only kind and 

charaoter or oolapensatfon exempt from the provisions of this Aot shall be rewards received by 

Sheriffs for apprehension of orimlnals or fugitives from juatioe and for the reoovery of stolen 

property, and moneye reoelved by County Judges and 

Justloes or the Poaoe ror performing marriage oeremonies, whioh sum shall not be aooountable for and 

not required to be reported as feea of office.* 

‘xe wero of the opinion that the above quoted terms 

of this statute (Artlole 3891, supra) were ..knolusive to the 

extent that in order for fees to be exempt thereunder, thq 

must be .speOlfiOally exaluded. (See the oaaea or I?iohole v. 

Galveston County Supreme Court, 

46 9. 3. 49). 

228 3. 71. 547 tnd Ellie County T. Thoapaon, As later stated -in the aase of 

Taylor et al. 0. BrowatoP Couatp, l44 5. W. (21 314, It was 

our oplnlon that *the change in the staute rather broadens 

t&n.restrlots what are to be determined otflaial fee& Artlole 3891, I1. S. 1925, Vernon's Annotated Civil Statutes, Artlale 3891". (Sate the aaae or Nueaea County v* Curington et 

al., 162 S. W. 687). However on February 16, 1942, artier 

our opinion No. G-2972 was written, the Court or Citil Appeals 

or Texan, at Amarillo, in the o&se of %WUniiep v. Callingsworth,County et al., 159 S. t?. (2) 234, expressly held that 

the ~lowanaos to sheriffs ror sare keeping or prisoners under Section 1 of Artlolo 1040, Vernon*a Annotated Code oft Crlminal PNoeanre, do nat oonstitute fees or offloe but are mere 

perquisites or orriae ror which the sheriff is aocountable to 

no one. It will be noted that this oase further holds that 

profit8 made under Seation 2 Of Artid@ loids sUPI%, relating 

to the allowanoea to a sherirr for the support and mintenMOe 

of prisoners should be reported a8 “fees of ofiioe*. 
. 

Honorable E. H. Griffin, Page 3 

Te think the opinion of the oourt in XooXfuley v. 

Collingeworth County et al., supra, should be followed until the Supreme Court holds to the costrsry. Thererore, 

our opinion Xo. O-2972 ie expressly overruled and withdrawn, 

This opinion is to be oonstruad as applyinq only 

to those counties wherein the county offioials are oompensated on a ree basis. 

&sting tnat the roregoing fully enswers your inquiry, we sre 

Yours very truly 

AX: mp 

$rdell Yilliams 

.$sslstant