OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Bororable D. Rlohud VoRee 

Cdurtr Attormer 

Wil8or Caumty 

Floreerllle, Texrr A 

.' \ 

~)err aim opmoB Ho. 

Rer Is the 15/ iii' under 

Seotlor 1 6f-Artlole 1040 a 

fee of office and‘*as ikhave 

to be +eqoumted for? "\.~ "1 

Your recent request 6 6* opinion of thikvbepartmeat on the above atited quey&ou,haal b&en received. 

/ I,' ,I 

We quote from yow~~lefter ~kr~fdllova~ 

"The Sherlff!t-&y-m&m& & requested an 

oplalon 88 to vbether~or 8ot,~ Sehtiom 1, of Artiale 1040, Cod~ofSrimkqal Prosedtim, providimg 

'1. For the fifqKeep‘~~,of baab pri\pler for eaoh 

da7 the sum,bf flfteemoe&e, rot to exoeed the 

N of two %mdiwd dollirr +r month,' oorrtitutes 

toor of offlo~~ha~,,haYe/~o pe aoaounted for. 

~thmhi& sc'iti~ exrrnirred 261 a.w. 

but ~isos I do not 

I hare bees '+cable 

Earrio Cou8tr, 

the above provipriaoigle of exolusio~ applies, 

that the Legislature, la thue aeparate17 classifying theeetieme, and provldimg apeoifloally only that the aet 

profit from t*the support amd PaiBt6Eancetl of prisoners should be reported aa a fee of office, vhloh bad not 
Honorable D. Riohard Voges, Page 2 

hitherto been so under the Hammond deoialox, mea& thereby to exclude from the requlrement the other Item not so mentlored, 

the 15 cents per day charge for safe-keep, 

and ao i&ended that - up to the $200 

1-t - it should be retaimed by the sheriff as au extra allowaaoe for which he vaa 

sot required to acoount under the fee bill.' 

"In the oaae of Holax County vs.Yarbrough, 34 9. 

W. (2nd) 302, it is held: 

“‘We have concluded that the item of 

15 oexts per day for safe-keeping var not 

intended to be l.mluded in that account.' 

(The account required by Article 1046, C. 

C.P.) 

"Under these authorities I have advised the sheriff that the 15 cents provided for under Seotlon 1 of 

Artltle 1040, van not a fee of office and did not have 

to be aoooumted for. 

'Please advise me whether or not this is correot.' 

After oarefully conaiderimg the authorltlos above memtloned aud other pertinert statutes as herelxafter mentloxed ve 

are uxable to agree with the conolualor stated fn your letter. 

Artlole 1040, Code of Crlmixal Procedure, reads a# 

followsl 

"For the safe keeplug, support and mainteranoe of prloomers confined in jail or wider guard, 

the sheriff shall be allowed the follovlmg charges: 

"1. Fcr the safekeep of eaoh prlsomer for 

each day the sun of flfteem cents, not to exceed 

the sum of tvo hundred dollars per month. 

"2. Far support and maintenamce, for each prlsaner for each day such am amount as may be fixed 

by the commissioners court, provided the ssme shall 

be reasomably sufficient for such purpoae, and in 

mo event ahall it be less tham forty cents per day 

-or mom than seventy-five cents per day for eaoh 
Honorable D. Richard Vogea, Page 3 

prlaomer. The net profits shall aonatitute fees 

of office and shall be aooounted for by the aherln his amma report as other feea nov provided 

by lav. The sheriff ahall in auoh report fumlah 

an ltemlaed verified account of all expemllturea 

made by him for feeding and malntemroe of prlaonera, accom’palylng ‘auoh report with receipts sld 

vouchers lr support of such ltema of expeadlture, 

snd the difference between auoh expendtturea and 

the amount alloved by the ooaaalaalonera court ahall 

be deemed to constitute the net profits for whloh 

said offloer shall aocoumt as feoa of office. 

“3. For necessary medical bill (Yd reasonable 

extra compenaatlon for attention to a prisoner 

during sickness, such an amount as the comnlsaloners court of the county where the prisoner Is confined may determine to be just and proper. 

"4. For reasonable funeral expenses ln case 

of death." 

Wilson County has a population of seventeen thousand, 

sixty-six (17,066) inhabitanta, socording to the 1940 Federal 

Census and ve are informed that the oouaty offlolala of said 

county are compensated om a fee b&ala. 

Article8 3896 and 3897, Vernonta hot&ted (llvll Statutes read as follwar 

Art, 3896. (3894) “To keep aooouata - 

Each district, county and preclnot officer shall 

keep a oorreot atatemnt of all fees earaed by 

hlm and all sums oom%?q into his hands as depoalta 

for coats, together uith all trust funds placed 

in the registry of the court, fees of offloe a.md 

conanlsalona in a book or ln books to be provided 

him for that purpose, ln which the officer, at the 

time vhea such deposit.8 are made or such fees and 

commissions are earned and vhen any or all of such 

funds shall come into his harda, shall enter the 

same ; snd It shall be the duty of the county audltor in counties having a county auditor to annuslly 

examine the books and account8 of such officers 
Honorable D. Richard Vogea, Page 4 

axd to report his findings to the next succeed-! 

lag gramd jury or diatriot oourt. Ia coumtlea 

havilg no county auditor, it shall be the duty of 

the Comlaaloaera~ Court to amke the examlmtlom 

of said books and aocoumta or have the same made 

and to make report to the graxd jury as hereixabovo provided." 

Art. 3897. (3895) "Sworn statement - 

Each district, county and precinct officer, at 

the close of each fiscal year (December 31at) 

ahall make to the dlatrlot court of the county 

la vhlch he reafdea a avorx statement lx trlpllcate (on fonua dealgaed and approved by the State 

Auditor) a aopy of srhlch statement shall be forvarded to the State Auditor by the clerk of the 

district court of said county within thirty (30) 

days after the same baa beer filed in his office, 

and one copy to be filed with the county auditor, 

If any; otherwise, aald copy shall be filed with 

the Coaaslaalonerat Court. Safd report shall ahov 

the amount of all feea, comiaaloaa and compemaatlona vhatever earred by said officer during 

the flaoal year; and aeoordly, shall show the 

amount of fees, coamlaaloxa and aompenaatlora 

collected by him durlag the fiaoal year8 thirdly, 

said report shall oontala an itemlaed atatemant 

of all fees, comlaalona and compe~aatlora oarmad 

during the fiscal year vhlch vere mot colleoted, 

together vlth the naa~~ of the'party ovm said 

fees, comalaaiona axd oomperaatlora. Said report 

shall be filed not later thar February 1st folloviq the oloae of the flacal year and for each day 

after said date that raid report remains aot filed, 

said offloer shall be liable to a penalty of Twenty 

Five ($25.00) Dollars, vhloh may be recovered by 

the county in a ault brought for such purposes, 

and ln addition said officer shall be aubjeot to 

reaoval from offloe." 

The last two paragraph8 of Article 3891, Vermor*a Revised Civil Statutes, read as follOW8r 

"The compenaatiorq llmltations and maximums 

herein fixed ln thla Act for officers shall include 

and apply to all officers mentioned herein 1s each 

and every county of this State, and it is hereby 

declared to be the intention of the Idgi8l8tUIW 

that, the provisions of this Act shall apply to each 

of said officers, and any special or general law 
Boaorable D. Richard Voges, Page 5 

laoon8lrte~t with the provlaloms hereof ir hereby 

expremly repealed in 80 far a8 the same may be 

lmmnslstent with this Aot. 

"The aomperaatlolr, lirltatloas amd apxlanms 

hereti fixed rball also apply to all Sees aad aompersatloa what8oever aolleoted by eald officers 

In their offlalal aapaclty, whether aaoountable 

as fee8 of offloe under the present law, and amy 

law, general or special, to the aontrary l.a hereby expressly repealed. The only kind and aharaater of cmqeneatloa exempt from the prorlaloas of 

thla Aat shall be rewards received by Sheriffs 

for appreheralon of criminals or fugitives from 

justice aiad for the reaoverydf stolen property, 

aad moneys reaeived by Couaty J'udger aad Justlaea 

OS the Peaae for performing marriage ceremonies, 

wh-oh sum shall aot be accountable for and not 

required to be reported a.8 Sees of office." 

It appears that the terns of the last above quoted 

artlole are lmlunfve, to the extent that ia order for Seen 

to be exempted thereumder, they must be speclfioally excluded. 

of Texas, 

In the case of Nlahola v. Oalvestvn County (Sup. Ct. 

1921), 228 S.W. 547, Galveston County sued the appellamt to recover certain See6 and conmiaslons reoelved by him ar 

Tnx Aaseasor and Colleotor of 5alveaton County, who also performed the duties of Assessor am&Collector from drainage dlstr%ot Sor which latter aervfoe he received a aompematior for 

which reoovem was sought. The Court, in oonoldering the care, 

compared the artlales under which compenclatlon 18 allowed to 

Tax Assessors and Colleotors for their eervloer in assessing 

and collecting taxea of draiaage districts to the artlole under 

whloh the Tax Aeeemsor and Collestor of the county may be de- 

%-ted Assessor and Collector for aa independent school distrlot, and receive 1~ return for aotlng as such certain uommlesloas. The Court aomldered altuatlore arlelag under each artlale with respect to accountability of aommlaeioaa received 

thereuader to be completely analogous. The court cited the oa8e 

of Ellie County v. Thompson, 56 3.W. 49, quotiag from such caoe 

in the followlag languager 

"The phrase 'Sees of all kinds' embraaes every 

kind of compensation allowed by law to a olerk of 

the county court, unlesr excepted by some proviso 
Honorable D. Richard Voges, Page 6 

of the statutes.... The exoeptlons are ao definite that by iapllaatlor all See8 rot mertiored ir 

the exception8 are excluded therefrom, and thereby Included wlthln the requirement of the act.” 

In view of the Soregollg authorities you are reapeotSully advised that it is the opinion of thlr department that 

the above mentioned compensation received by the sheriff for 

the safe keeping of prisoners is a fee of office and must be 

accounted for as ouch. 

Trusting that the foregoing SulZy axewere your lnqulry, we are 

Very truly your8 

ATTORREY%XE3UL OFT?ZXAS 

Ardell Xllliam 

Assist-t