I




              OFFICE   OF THE ATTORNEY    GENERAL   OF TEXAS
                                 AUSTIN




    Ffonorab3.b3. H. arlffln
    County Attoamy
    Young county
    Graham, Toxaw
    Dear   Sir;




           the shedif udder ?qection    of;Artlole 1040 COP
           is not a re0 or xtrrbe BILJ a0949not have to be
           ~~~~~~t~~~~~~                    ,you OpWon    above

                 lease *ime nekhiah or these authorities
         ~~u.l be.fo~$n&.       In 80 far as.I have bean able
         to‘det&aine ybur @pinion haa never been, by youl'
         dspakgman~,   m&iridd or reverse&n
                     \ / ,/'
               w&    &f&on No. o-2972 was written we aarefullg
    aonsidered thss~xoagee of Harris County v. Hammond et al., 203
    8. ;q.445; Blnford v. Harris County, 261 8. ?I.535; Nolan
    County v. Yarbrough, 34 5. ‘:f. (2) 302, and the authorities
    cited therein and reaognized that these cases held, anon&
    other things, that the fifteen cent8 p~OVid0d   iOF under sea-
    tion 1 or Mticle 1040, Vernon's Annotated Code of Crlninal
    Procedure, did not oonstltutea fee of ofiioe that had to be
    aooounted ror as suoh. i!owever,in view of Artiole 3891,
Honorable E. H. Griffin,   Page 2


Vernon’8 Annotated Civil Statutee, as amended sinae the opfn-
ions in these aaaoa were rendered, whiah provides in part:
           “. . . .
          -The compensation,llniitationa end maximuma
     &rein fixed ahall also apply to all lees and
     oompensatlonwhatsoever oollaotsd by said orii-
     oer8 in their ofriolal oapaaitp,whether account-
     able as fees of ofrioe nnder the present law, and
     any law, general or speofal, to the oontrary is
     hereby expressly repealed. The Only kind and
     charaoter or oolapensatfonexempt from the provi-
     sions of this Aot shall be rewards received by
     Sheriffs for apprehensionof orimlnals or fugi-
     tives from juatioe and for the reoovery of stolen
     property, and moneye reoelved by County Judges and
     Justloes or the Poaoe ror performingmarriage oere-
     monies, whioh sum shall not be aooountablefor and
     not required to be reported as feea of office.*
          ‘xewero of the opinion that the above quoted terms
of this statute (Artlole 3891, supra) were ..knolusive to the
extent that in order for fees to be exempt thereunder, thq
must be .speOlfiOallyexaluded. (See the oaaea or I?ioholev.
Galveston County Supreme Court, 228 3. 71.547 tnd Ellie Coun-
ty T. Thoapaon, 46 9. 3. 49). As later stated -inthe aase of
Taylor et al. 0. BrowatoP Couatp, l44 5. W. (21 314, It was
our oplnlon that *the change in the staute rather broadens
t&n.restrlots what are to be determined otflaial fee&     Art-
lole 3891, I1.S. 1925, Vernon's Annotated Civil Statutes, Art-
lale 3891". (Satethe aaae or Nueaea County v* Curington et
al., 162 S. W. 687). However on February 16, 1942, artier
our opinion No. G-2972 was written, the Court or Citil Appeals
or Texan, at Amarillo, in the o&se of %WUniiep v. Callings-
worth,County et al., 159 S. t?. (2) 234, expressly held that
the ~lowanaos to sheriffs ror sare keeping or prisoners un-
der Section 1 of Artlolo 1040, Vernon*a Annotated Code oftCrlm-
inal PNoeanre, do nat oonstitutefees or offloe but are mere
perquisitesor orriae ror which the sheriff is aocountable to
no one. It will be noted that this oase further holds that
profit8 made under Seation 2 Of Artid@   loids sUPI%, relating
to the allowanoea to a sherirr for the support and mintenMOe
of prisoners should be reported a8 “fees of ofiioe*.
.




    Honorable E. H. Griffin, Page 3


              Te think the opinion of the oourt in XooXfuleyv.
    Collingeworth County et al., supra, should be followed un-
    til the Supreme Court holds to the costrsry. Thererore,
    our opinion Xo. O-2972 ie expressly overruled and withdrawn,
              This opinion is to be oonstruad as applyinq only
    to those counties wherein the county offioials are oompen-
    sated on a ree basis.
              &sting   tnat the roregoing fully enswers your in-
    quiry, we sre
                                           Yours very truly




                                                 $rdell Yilliams
                                                       .$sslstant
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