**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS**

**AUSTIN**

BororableD. Rlohud VoRee Cdurtr Attormer Wil8or Caumty Floreerllle,Texrr A .' \

~)err aim opmoB Ho.

Rer Is the 15/ iii' under Seotlor 1 6f-Artlole1040 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& & requestedan oplalon 88 to vbether~or8ot,~ 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 provipriaoigleof exolusio~applies, that the Legislature,la thue aeparate17 classifying theeetieme,and provldimg apeoifloally only that the aet profit from t*the supportamd PaiBt6Eancetl of prisoners shouldbe reported aa a fee of office,vhloh bad notHonorableD. Riohard Voges, Page 2

hithertobeen 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 shouldbe retaimedby 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 concludedthat the item of 15 oexts per day for safe-keeping var not intended to be l.mluded in that account.' (The account requiredby Article 1046, C. C.P.)

"Under these authoritiesI 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.

'Pleaseadvise me whether or not this is correot.'

After oarefullyconaiderimgthe authorltlosabove memtloned aud other pertinert statutesas herelxaftermentloxedve are uxable to agree with the conolualorstated 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 safekeepof 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 reasomablysufficientfor such purpoae, and in
mo event ahall it be less tham forty cents per day
-or mom than seventy-five cents per day for eaohHonorableD. RichardVogea, 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 ltemlaedverifiedaccount of all expemllturea made by him for feeding and malntemroe of prlaonera, accom’palylng‘auoh report with receiptssld vouchers lr support of such ltema of expeadlture, snd the difference between auoh expendtturea and the amount allovedby the ooaaalaalonera court ahall be deemed to constitutethe 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 countywhere the prisoner Is confined may determineto be just and proper.

"4. For reasonablefuneral expenses ln case of death."

Wilson Countyhas a populationof seventeenthousand, sixty-six (17,066)inhabitanta, socording to the 1940 Federal Census and ve are informed that the oouaty offlolalaof said county are compensatedom a fee b&ala.

Article8 3896 and 3897, Vernonta hot&ted (llvllStatutes 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, togetheruith 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 countieshaving a county auditor to annuslly examine the books and account8 of such officersHonorableD. RichardVogea, 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 fiscalyear (December31at) ahall make to the dlatrlot court of the county la vhlch he reafdea **a** avorx statementlx trlpll**cate** (on fonua dealgaedand approvedby the State Auditor) **a** aopy of srhlch statementshall be for**varded** to the **State** Auditorby 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 compemaatlonavhatever 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 oontalaan itemlaed atatemant of all **fees,** comlaalona and compe~aatlora oarmad **during** the fiscal **year** vhlch vere mot colleoted, togethervlth the naa~~ of the'partyovm 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 remainsaot 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 paragraph8of Article 3891, Vermor*aRevised Civil Statutes,read as follOW8r

"The compenaatiorq llmltationsand maximums herein fixed ln thla Act for officers shall include and apply to all officers mentionedherein 1s each and every county of this State, and it is hereby declared to be the intentionof the Idgi8l8tUIW that, the provisions of this Act shall apply to each of said officers,and any special or general lawBoaorable D. RichardVoges, Page 5

laoon8lrte~t

with the provlalomshereof ir hereby expremly repealed in 80 far a8 the same may be lmmnslstent with this Aot.

"The aomperaatlolr, lirltatloasamd apxlanms hereti fixed rball also apply to all Sees aad aompersatloawhat8oeveraolleotedby 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.ahereby expresslyrepealed. The only kind and aharaater of cmqeneatloa exempt from the prorlaloasof thla Aat shall be rewards receivedby Sheriffs for appreheralonof criminals or fugitivesfrom justiceaiad

for the reaoverydf stolenproperty, aad moneys reaeivedby Couaty J'udger aad Justlaea OS the Peaae for performingmarriage ceremonies, wh-oh sum shall aot be accountablefor and not required to be reporteda.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. OalvestvnCounty (Sup. Ct.

1921), 228 S.W. 547, Galveston County sued the appellamt to recover certain See6 and conmiaslonsreoelvedby him ar Tnx Aaseasor and Colleotorof 5alveaton County,who also performed the duties of Assessor am&Collector from drainage dlstr%ot Sor which latter aervfoehe receiveda aompematior for which reoovem was sought. The Court, in oonolderingthe care, compared the artlalesunder which compenclatlon 18 allowed to Tax Assessors and Colleotorsfor their eervloer in assessing and collectingtaxea of draiaagedistrictsto the artloleunder whloh the Tax Aeeemsorand Collestorof the countymay be de- %-ted Assessor and Collector for aa independentschool distrlot, and receive 1~ return for aotlng as such certain uommlesloas. The Court aomldered altuatlorearlelagunder each artlale with respect to accountability of aommlaeioaareceived thereuaderto be completelyanalogous. The court cited the oa8e of Ellie County v. Thompson, 56 3.W. 49, quotiag from such caoe in the followlaglanguager

"The phrase 'Sees of all kinds' embraaes every kind of compensation allowed by law to a olerk of the county court, unlesr exceptedby some provisoHonorable D. RichardVoges, Page 6

of the statutes.... The exoeptlonsare ao definite that by iapllaatlorall See8 rot mertiored ir the exception8are excluded therefrom,and thereby Includedwlthln the requirementof the act.”

In view of the Soregollgauthoritiesyou are reapeotSully advised that it is the opinion of thlr departmentthat the above mentioned compensation receivedby the **sheriff** for the **safe** keeping of prisoners is a fee of office **and** must be accounted for as ouch.

Trusting that the foregoingSulZy axewereyour lnqulry, we are

Very truly your8

ATTORREY%XE3UL OFT?ZXAS

ArdellXllliam Assist-t