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 accountwith the Commissioners' Court of Henderson County under the ,~ above Section of the Statute arid requested that-he be paid ,thesum of 15# per day for the safe-keepof each of the prisonerswho 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.Hendersone is the ounty justified in refusingthe payment of the Sheriff's account for the safe-keepof 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 uouulationof 20.000 or morg accordins to the then last urecedinpFed- ' era1 Census. shal& from the first day ofRon. Jean Day - ?age 2 (V- 655)

January and thereafter,and subsequentto the first Regular or Special Session of the Legislature

after the adoption of this ResolutionObe cansersatedon a salav bas&*" .(Enphasis

added)

Henderson County has a populationof 31,822, and, therefore,compensatesits officers on a salary basis,

Section 13 of Article 3912e of Vernon's Civil Statutesreads in part:

"The Commissionerst Court in counties having a population lf twenty thousand (20,- 000) inhabitantsor more, and less than one hundred and ninety thousand (190,.000)inhabitants according to the last precedingFederal Census, is hereby authorizedand it shall be its duty to fix the salaries of all the followingnamed officers,to-wit: sheriff,
assessorand collectorof taxes, county judge, county attorney, includingcriminaldistrict attorneysand county attorneyswho 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 installmentsof 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 commissionfor any serviceperformedby him; nor shall the, State or any county pay to any county officer in any county containinga populationof twenty thousand (20,000) Inhabitantsor more according to the last precedingFederal Census any fee or commissionfor any serviceby him performedas such officer;provided,however, that the assessor and collectorof taxes shall continue to collect and retain for theHon. Jean Day - page 3 (V-655)

benefit of the officers'Salary Fund or, funds hereinafterprovided 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 provisionsof 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 provisionsof this Act to account for fees, commissionsand costs collected from private parties."

Section 22 readsr

"The provisionsof this Act shall be cumulativeof all laws not in conflict herewith: It is hereby declared to be the intention of the Legislaturethat the compensation, limitationsand maxirums fixed in this Act for the named officers, their deputies, assistantsand employeescontrol
over any other Provisionscontained 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 connectionwith Section 61 of Article XVI of the State Constitution,as follows:

‘1s 0 0 The compensation,~limitations and maximumsherein fixed shall also apply to all fees and compensation whatsoever collected by'said officers in their official capacity,whether accountableas 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 characterof compensationexempt from the provisionsof this Act shall be rewards received by Sheriffs * * *.Pursuant to the constitutional mandateHon. Jean Day - Page 4 (V-655)

the legislaturepassed 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:sAnn. Clr. St. The act carriesby recitation (set, 24) the legislativeinterpretation that the amendment made fitmandatory that constitution-. al countv officers in countiesha 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%dsare in italits by the Court)

In view of the foregoingwe are of the opinion that the provisionsof Section 1, Article 3912e, V.C.S., prohibitthe Commissioners * Court of a salary county from paying the sheriff the 15# per day for the safe-keepof each prisoneras provided in Article 10&O, V.C.C.P. Article 1040 was passed in 1923 when all the county officers in this State were compensatedon a fee basis. In1935 the voters of this State adoptedArticle XVI, Section 61 of the Texas Constitution which made it mandatory that all the county officers in countieshaving a population of 20,000 or more according to the last preceding FederalCensus be compensatedon a salary basis beginning January 1, 1936, and subsequentto the adoption of this constitutional

amendment the,

Legislatureenacted Section 1 of Article 3912e,which supersededthe provisionsof Subdivision1, Article 1040, V. C. C. ,P. relative to county officers compensatedon a,salary basis.

SUMMARY

The provisionsof 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