OFFICE OFTHE AITORNEYGENERALOFTEXAS 

AUSTIN 

Honorable Merritt ?. HLnea 

county Attorney 

Nlalena county 

WidhZld, %X88 

m8l' Sir: - 

Your request for ou 

aaptioned quention ha8 

ter ea followrt 

thehem%nabove 

quote from Tour let- 

&I for each 

aept in oouaties hs*lng 

II of forty tktm*tand (4O,- 

8 eooaw to the lent pneadFederal Uensue. tn suoh 

oountles of forty thous8nd (40 0043) or more 

lnbabitantm, the Coolelssicmma~ Qeurt ma7 allow *8&l jail guard, getron, r and tumlkey Four DoZlers and Oiity Gent8 $4.50) per 

days prbviabd that, in oumutles hevbg P papal8tiOIl in &xob#S of three hWd~9.d and fiftyfive thoussnd (~VJ,OOO) InhablpUrOn, oooording 

to %h0 x8St 9IWeOding; Or Uy fI&ture ?e4hmal 
honorrble Herrltt p. Hines, Page 2 

census, each jai1 3118rd, OPtrOn, jailer 8ud 

turnkey shall be paid not less than Oue huhdred and Seventy-five ($175.00) Dollars per 

month. 

"Mldlond Count-$ haa no jailer, jail 

guarti, matron or turnkey, but all work done 

in conueotlon with the jail is done by the 

sheriff end his deputies. 

“Art. 1040. Allowhnae to sheriff Por 

prIsonera, provides in partr 

'2. For support and maintenanoe. for 

each pl'iSOMP fOF e8oh d4y SUCh &I antotlnt 823 

may be fixed by the coxmlasiouers court, polovlded the aaue shall be reasonably eufPlclent 

for oubh purpose, and 91 no event sh8ll it b8 

less than forty oents per day nor more th8h 

Seventy-five aente psr d8y for e8oh prlsoIIeP. 

The net profits ehall OOIB%tihrt8 fee8 of office Bnd shell be saoouuted for by the aherlff 

in his anut~&report 8s other f88a now provided by 18~. The sheriff shall In such coport Punish en it8mited verified aacount of 

all expenditures mde by him for feedihg ahd 

melntenenoe oP prl8oner%. 8UeOllipasjiX143 such 

report with reoeipte aud rouahere in support 

ot suah It- of expenditure, and the diffsrtncJe betSfee? suah expenditure8 8ud the 

amount allowed by the ooml8sloneps oourt 

aha‘L1 be d88md to eOnat%tUte the net profit 

for whloh s8I.d bftlaer shall account 84 f4e6 

Of QffiC8. 

"Th8 Midland County jail 3.8 On the fOUFth 

4:~; of the court house. The eheriff 8ud his 

his WFf8 and two childrW# live I.JL 8n 

8pp%r T' ment providsd for that YUrpoSe. oh the 

saae P~OCIP, adjacent the jail. The meals for 

the jsil 8re prepared In the sheriff~s kitchen, 

with equipuent th8t belongs to the vherlfi per- 

*on8lly. Bloat OP the tlue the uheriff eznploys 

a cook whose aelary le charged t0 expehse of 

OPfiC8, But thu sheriff's wife is always.p*eent to supepvlse the work, and SOlU@tiEWS does' 
Bonoreble llerrltt F. H&nor, Page 3 

it herself. The sheriff snd his Pamlly eat 

their meals that me prepared from the same 

supplies used in feedlng the prisoners. Chc 

profits from feed- the prisoners are properly aocounted for by hir. 

?&II?, the comlssloners court desire the 

opinion of hour department on the questlont 

Shall the wals,, ths grooerles, oonsumed by 

the 8herlff end his fully, el.80 be rcoounted 

for es profits end fees of offloe, es the oesh 

profit from the jail 1810' 

Artlale lob6 of the Code of CrlaiPal Procedow provides ar follors~ 

‘At eeah nipalar term of the oomi81~lonor8 oourt, the rheriff shell pawbent to such 

oourt his meow&t verlfled by his aSttldavlt 

for the expense lnourred by him slnae the last 

eauount presented for the safe-keeping and 

malntenanoe of pHsoner8, lnoludiag gubrds 

employed, lf sny. 8ueh eaoouut ahell state 

the na&s of eaoh prisoner, e8oh ltsu of IIpens8 inourred on eeeount of such prisoner, 

the date of each item, the nue of eaoh guard 

e@oyed, the length oft- em9loyed urd the 

p-se of such employment." 

Artlole 1047 of the Code of CrS.ml.xi81 Prooedum provides 88 folloifsl 

*The aomls8loner8 oourt shallex~e 

swh eeoount end ellov the same, or so muoh 

thereof 8s 1s reeasoaeble and In 8ooord8noe with 

lev, and ahall order,8 draft issued to the sherlit upon the oounty t-surer for the amount so 

8llmed. Such account n&l1 be filed md kept 

in the office of such aourt." 

Beotlon 2 of Article lOI)0 of the Code of Orirlnll Pro- 
Bonorable Norrttt F. Xiner, Pege Ir 

murt, uithin the lImita presarlbed in 4aid se&ion, aon4titutes 

the net profits for vhieh the rhorift 4hall acaount as fee4 of 

orrtce. 

Under Artlole 1046, 4upm, It is the duty of the 4horiff to file hia verified account for the exp8nne Inourred by him 

for the rafcrkeeplng and rlntenance of prI4oner4 vlth the mm- 

~l~~iOIltlTl4' aonrt at each regular term of,:msld court. 

ArtFole 1047, 4upra. requIre4 the oaaat8410ner4t aourt 

to examl.ne rush amount and allow th8 8nme, or 40 mah thereof 

a4 14 rearonable md In aaaordanoe vith lav. 

You atate la your litter that “I318 sheriff and hi8 

iam (aon8imtlng of four people) eat their ma14 th8t are pmpared from the 8aa8 4uppller wed In feeding the prI8oner4." 

You then propound, for our 4mver, the follovlng que4tIom '&all 

the meals, the grooerles, odmumed br the 8hertff and hi8 faly, 

818~1 be aaoovnted for a4 

profit fr.ar the jell 18f' 

profit4 and fee4 of offioe, aa the oa4h 

Am ve unde~atand the feat8 from your letter, the #herIff buy4 all the grocer104 together, for the prleoners an4 al40 

for hi8 family, and the meal8 for each are then prepared from 

the8e grouorI.4. Zn order that the 4herIff rrap properly mcouut 

for the profits derived from the fmsding of the prirroxmw vhere 

the grocerlea ax-e 80 bought, only those groasrter aetuaUy ured 

in feeding the prlmnera should be aharged against the alloveme 

made by the aormnirolon%r8' oomt in dete the net profits 

to be aoaounted for In the mheriff'8 report. f thl818 done, 

"the profit4 from feedIng the prlmnme me properly recounted 

for br h&m, ’am rtated in the laat line of the next to the Iart 

psr4gr4* of your letter. Xi th14 %a done. yourqueation ehould 

be mrvered in the negative. 

fn vlev of TQIW que8tIon and froa the 1-e of four 

letter a8 a whole, homver, ve premume that the total oolt of 

the rooerIe8, including there aonrumed by the 8herlff' f4mf 

3ic&ia- am an llmu of expe~e ogainrt the allovanoe Lde by 

the oonmimmioner8t court and the differeme or "profita" 

If thin I4 the OBBO, the amount reported by the sheriff v 

refleot the cornet 4mcmnt of profits reqoised to be rsportsd by 

the 4herlff under Artlale 1040 of the Code of C~2mLn.41 Froaedtwe. 

The amount reported vould be leas the amou%t u8ed to pfQ for thet 

part of the groaerlea COnswW~ the Ohed.ff end hi4 faM* 

This would be tantamount to the retention and failure to -port 
Honorable llorrltt F. Xi~er, Page 5 

by the sheriff a part 0s hi8 fee4 In violation 0s the 4tatute. 

Under these facts, themfore, your question should be msvered 

in the afrirm4tive. 

In the oa8e of Hood, et al v. State, et al (Cir. App.), 

73 S. W. (26) 611, error reruled, the oourt, In holding that the 

motion of the comissloners~ court in approving a 4herirf~s account whereby he va8 alloved to retain as port of hi8 fees a 

portion of the mOneya paid him for the 4afe-keeping and gubsiat- 

,ence of Federal prisoners in the county jail was void, axid therefore subjeot to oollateral attack, u8ed the follovlng language; 

"It r0ihf8, therefore, that 4uah mney4 

being prmlalon41 statutory r444 0s 0rrIc4, 

the c0mml4aIoner4~ aourt 18 vlth0ut power to 

rettle vith the 4herirr for M wunt 1448 

than was reaeived, and Its &&Ion in approving the sherlffts aaoount, and in boaopting 

for the murky the (2,500 rrrd 

s 

2,000, zwspectively, vas vholly void, henae 8ub cot to,the ooll4ten1 attaok. Cameron County v. Fox (Tex. Corn.. 

App.) 2 S. W. (2d) 433." 

In vlev of the foregoing authorltler, you are respectfully adriaed that It 18 the opinion of thio department that, 

under the fbots stated, the 8herlff should either deduot only 

the oort of the groaerles l otually 18ed in feeding the prisoners 

rr0la the allovance made for the feeding and wlntemraae 0s the 

prlroner8 md report the dlfferenoe 44 r444 0s 0rric4, or, he 

should deduat the total costs of the grooerlea fme the allovenoe 

made by the ao4mlsslonerr~ court sad report the bli~erence w 

the cost of the groaerler conswned by the sherIrf~e femlly aa 

fees 0s orrioe. 

What ve have said above 18 based upon the prerumptlon 

that the officer4 of Hidle.nd County are compensated on a fee ba814. 

In vlev of the statemmt mede iu your letter that mMo8t 

or the tiae the sheriff e14~loys a cook vhoee salary 14 oh4rged to 

expense of 0fric4", ve vloh to point out that 4uoh expenditure 

does not conetltute an expenoe of office snd should not be charged 

as such. The expense of employing a cook to prepare food for the 

prisoners should be charged egslrmt the allove.nce mudo by the Cornmls4ioner4t c0twi for the feeding and eiainteaance 0s the PrisO-r4 

1.n the 044~ 4uumer aa the coat of the groceries are aharged Bgainrt 
Honorable Rerrltt F. Hines, Page 6 

said allovanoe in detemlnlng whether the sberlff lute ma46 a net 

profit to be reported as fees of office under Artiole 1040, Code 

of Crisinal Pfionedure. Sue State v. Cr:rnee, et al (Civ. App.) 

105 9. w. (26) 397, at page 460. 

Very truly yours 

ATTORREY QERERhL OF l’lU.ha 

RP:RS