August 6, 1948 

Hon. Jean Day 

County Attorney 

Henderson County 

Athens, Texas 

Dear Sir: 

Opinion Noo. V-655 

Re: Allowance to a sheriff of 

15~~ per day for safe-keep 

of prisoners. 

We refer to your letter in which 

the following: 

you submit 

"The Sheriff of Henderson County has 

filed a sworn account with the Commissioners' Court of Henderson County under the ,~ 

above Section of the Statute arid requested 

that-he be paid ,the sum of 15# per day for 

the safe-keep of each of the prisoners who 

have been in his custody for the past three 

months. The Commissioners' Court of Henderson County has refused to pay the Sheriff's 

account for the reason as stated by them 

that they are paying the salary of a fulltime jailer, who is in charge of the Henderson County Jail and the prisonerskept 

therein. 

"Under the facts stated above 

Commissionersf Court of.Henderson e 

is the 

ounty 

justified in refusing the payment of the 

Sheriff's account for the safe-keep of prisoners as provided under Section 1 of said 

Article 104C?" 

Section 61, Article XVI of the State Constitution reads in part: 

"All district officers in the State 

of Texas and all county officers in counties havine a uouulation of 20.000 or morg 

accordins to the then last urecedinp Fed- ' 

era1 Census. shal& from the first day of 
Ron. Jean Day - ?age 2 (V- 655) 

January and thereafter, and subsequent to 

the first Regular or Special Session of the 

Legislature after the adoption of this ResolutionO be cansersated on a salav bas&*" 

.(Enphasis added) 

Henderson County has a population of 31,822, 

and, therefore, compensates its officers on a salary 

basis, 

Section 13 of Article 3912e of Vernon's Civil 

Statutes reads in part: 

"The Commissionerst Court in counties 

having a population l f twenty thousand (20,- 

000) inhabitants or more, and less than one 

hundred and ninety thousand (190,.000) inhabitants according to the last preceding Federal Census, is hereby authorized and it 

shall be its duty to fix the salaries of all 

the following named officers, to-wit: sheriff, 

assessor and collector of taxes, county judge, 

county attorney, including criminal district 

attorneys and county attorneys who perform 

the duties of district attorneys, district 

clerk, county clerk, treasurer, hide and animal inspector. Each of said officers shall 

be aid in money an annual salary in twelve 

(L2p equal installments of not less than the 

total sum earned as compensation by-him in 

his official capacity for the fiscal year 

1935, and not more than the maximum amount allowed such officer under laws existing on Aug-, 

ust 24, 19350 9 I. .,I0 

Section 1 of said Article reads: 

"No district officer sLl1 be paid by 

the State of Texas any fees or commission for 

any service performed by him; nor shall the, 

State or any county pay to any county officer 

in any county containing a population of twenty thousand (20,000) Inhabitants or more according to the last preceding Federal Census 

any fee or commission for any service by him 

performed as such officer; provided, however, 

that the assessor and collector of taxes 

shall continue to collect and retain for the 
Hon. Jean Day - page 3 (V-655) 

benefit of the officers' Salary Fund or, 

funds hereinafter provided for, all fees 

and commissions which he is authorized 

under law to collect; and it shall be his 

duty to account for and to pay all such 

monies received by him into the fund or 

funds created and provided for under the 

provisions of this Act; provided further, 

that the provisions of this Section shall 

not affect the payment of costs in civil 

cases by the State, but all such costs so 

Paid, shall be accounted for by the officers collecting the same, as they are required under the provisions of this Act 

to account for fees, commissions and 

costs collected from private parties." 

Section 22 readsr 

"The provisions of this Act shall be 

cumulative of all laws not in conflict 

herewith: It is hereby declared to be the 

intention of the Legislature that the compensation, limitations and maxirums fixed 

in this Act for the named officers, their 

deputies, assistants and employees control 

over any other Provisions contained in all 

law, general and special." 

162 S. 

In Nueces County v. Currington, 139 Tex. 297, 

W. (26) 687, the Supreme Court copied pertinent 

parts of Articles 38839 3891, 3912e and other appropriate laws in Vernon's Civil Statutes, and construed same 

in connection with Section 61 of Article XVI of the 

State Constitution, as follows: 

‘1s 0 0 The compensation,~limitations and 

maximums herein fixed shall also apply to 

all fees and compensation whatsoever collected by'said officers in their official 

capacity, whether accountable as fees of 

office under the present law, (or not) and 

any law, general or sPrcia1, to the contrary is hereby expressly repealed. The 

only kind and character of compensation exempt from the provisions of this Act shall 

be rewards received by Sheriffs * * *.Pursuant to the constitutional mandate 
Hon. Jean Day - Page 4 (V-655) 

the legislature passed and approved (November 15, 1935) a comprehensive act prescribing in the manner therein stated the 

compensation of district, count and precinct officers. ‘secti 1 

2nd C. S., 

rt8 &h leg,,, 

ch. 465 p0 17 2 now sec. 1, 

art. 3912e, Vernon:s Ann. Clr. St. The 

act carries by recitation (set, 24) the 

legislative interpretation that the amendment made fit mandatory that constitution-. 

al countv officers in counties ha ins a 

ponulation of tweatv thousand (2OTCCOl 

inhabitants or mora, l + * be c msensated 

solelv en a sal v ba I * * * TItalics 

ours)." (Under~~oredsw%ds are in italits by the Court) 

In view of the foregoing we are of the opinion 

that the provisions of Section 1, Article 3912e, V.C.S., 

prohibit the Commissioners *Court of a salary county from 

paying the sheriff the 15# per day for the safe-keep of 

each prisoner as provided in Article 10&O, V.C.C.P. Article 1040 was passed in 1923 when all the county officers in this State were compensated on a fee basis. In1935 the voters of this State adopted Article XVI, Section 61 of the Texas Constitution which made it mandatory 

that all the county officers in counties having a population of 20,000 or more according to the last preceding 

Federal Census be compensated on a salary basis beginning 

January 1, 1936, and subsequent to the adoption of this 

constitutional amendment the, Legislature enacted Section 

1 of Article 3912e, which superseded the provisions of 

Subdivision 1, Article 1040, V. C. C. ,P. relative to county officers compensated on a,salary basis. 

SUMMARY 

The provisions of Section 1, Article 

3912e, V. C. S. prohibit the Commissioners' 

Court of a salary county from paying the 

sheriff 15# per day for the safekeep of each' 

prisoner. 

APPROVID: , 

EY GENERAL 

WTW :wb 

Very truly yours~, 

ATTORNRYGENWAL OFTEXAS 

BY 

Assistant