Honorable Robert F. Burns, Jr.            Opinion No. M-1220
County Attorney
Walker County Courthouse                  Re:   Questions relating
P. 0. Box 614                                   to the form of the
Huntsville, Texas 77340                         Sheriff's monthly
                                                bill for feeding of
                                                prisoners.

Dear Mr.    Burns:

       In your recent letter to this office, you asked our
opinion concerning the following three questions:

           1.   Does the form in which the Sheriff of
                Walker County submits his monthly bill
                for feeding prisoners in.his care and
                custody constitute an illegal bill?

           2.   Is the Sheriff required to submit his
                monthly bill for feeding prisoners in
                this care and custody in a particular
                 form?

           3.   Is the Sheriff required to submit a
                separate bill for labor in preparing
                meals for prisoners in his care and
                custody or may such bill for labor be
                included in the Sheriff's monthly bill
                for feeding such prisoners, without
                specifically setting forth the amount
                paid for labor in connection with the
                preparation of the meals?

       As a part of your request, you enclosed a monthly
county food bill for May of 1972 submitted by the Sheriff
of Walker County to the Commissioner's Court. That bill
lists the prisoners by name, shows the number of days each
was in jail during the month, the offense charged against
each, the Court,~ and the judgment where applicable, At the



                                 -5982-
                                                    I   .




Honorable Robert F. Burns, Jr., page 2       (M-1220)



bottom of the submitted bill are the notations "O.K. W-D."
and "Total Bill $413.29". An examination of this bill reveals
that 61 prisoners were in jail a total of 291 "days" during
the month of May, 1972. There is nothing from the bill itself
to show the derivation of the $413.29 amount.

       Article 1046, Vernon's Code of Criminal Procedure,
provides as follows:

              "At each regular term of the Commissioner's
              Court, the Sheriff shall present to such
              Court his account verified by his affidavit
              for the expense incurred by him since the
              last account presented for the safekeeping
              and maintenance of prisoners, including
              guards employed, if any. Such account
              shall state the name of each prisoner, each
              item of expense incurred on account of z

              %%%?&I%       ~~~~o~:d~a",L':~~~t~h~fn~~~e
              employed and the purpose of such employment."
              (Emphasis added)

       Without more, it seems apparent that the bill submitted
by the Sheriff of Walker County as above described would not
satisfy the requirements of Article 1046, set out above.
Section 2 of Article 1040, Vernon's Code of Criminal Procedure,
requires in part the following in regard to the Sheriff's
annual report:
              $3      The Sheriff shall in such report
              fu%sh   an itemized verified account of all
              expenditures made by him for feeding and
              maintenance of prisoners, accompanying such
              report with receipts and vouchers in support
              of such items of expenditure, and the dif-
              ference between such expenditures and the
              amount allowed by the Commissioner's Court
              shall be deemed to constitute the net pro-
              fits for which said officer shall account
              as fees of office."

       Taken together, Articles 1040 and 1046 require that the
Sheriff report considerably more concerning the support and
maintenance of prisoners than just the number of prisoners and
their term of confinement.


                            -5983-
Honorable Robert F. Burns, Jr., page 3       (M-1220)



       The predecessor of Article 1040, (Article 1142 of the
Code of Criminal Procedure. as amended in 1911). said
nothing about "fees of office" and it was determined in the
case of Harris County vs. Hammond, 203 S.W. 451 (Tex.Civ.App.
1918, error ref,) that the per direm allowance for feedina and
maintenance of prisoners was a reimbursement of actual ex-
penses and not a "fee of office" for which accurate reporting
was required. That case determined that detailed accounting
of the expenses incurred in the maintenance and feeding of
prisoners was not necessary. When Article 1040, supra, was
enacted in 1923, there was a conceptual change made which
necessitated full and accurate reporting by the Sheriff to
the Commissioner's Court of his monthly food bill. Once it
was determined that a Sheriff had to consider any excess of
allowance over actual expenses as "fees of office", full
accounting and reporting became essential.   Subsequently,
however, there was enacted the Officers Salary Act of 1935,
codified as Article 3912e, Vernon's Civil Statutes, which
requires that no county of 20,000 or more population according
to the last preceding Federal Census shall pay to any county
officer any fee or commission for any service by him performed
as such officer. Article 16, Section 61 of the Texas Consti-
tution now requires that Sheriffs be compensated on a salary
basis. Obviously, any fees or allowances provided a Sheriff
as described in Article 1040, supra, are not now permissible.
See Attorney General's Opinion No. V-655, 1948, holding that
Article 3912e, V.C.S., had superseded Section, 1 of Article
1040.

       We are left now with the necessity of determining the
effect of Article 1046, supra, on reports by the Sheriff to
the Commissioner's Court. The reasoning behind the Hammond
case, supra, depended upon the Sheriff being compensated by
an allowance based on a per prisoner charge set by the Court
within the Statutory limits.   At the time of Hammond no con-
sideration was given, and no accounting was necessary, to the
determination of excesses or deficiencies in this allowance,
The Sheriff bore the loss or enjoyed the gain. As stated
above, Article  1040 was amended to make excesses accountable
as "fees of office",   Subsequent enactment of Article 3912e
eliminated "fees of office" as a concept, but made the cost
of feeding prisoners strictly a county expense. Since the
Sheriff is not on an "allowance" any more, but, instead,
accounts to the Commissioner's Court for his expenditures
incurred in the feeding of prisoners, a more strict accounting
procedure is understandably required. Article 1046, supra,


                            -5984-
Honorable Robert F. Burns, Jr., page 4      (M-1220)



contemplates an accounting for "each item of expense in-
curred on account of such prisoner",  Obviously~, under such
a requirement, the Sheriff must carefully account for his
expenditures in the feeding of prisoners in his custody,
since such accounting will be necessary to determine reim-
bursement from the County. We, therefore, conclude, in
answer to your first question, that a monthly bill  for
feeding prisoners such as the one submitted by the Sheriff
of Walker County for the month of May, 1972, is not suf-
ficient and does not comply with the requirements of Article
1046.

        Your second question asks if the monthly bill is
required by statute to be submitted in a particular form.
Our answer to this is that need for a particular form is
no't implicit in the statutes but the monthly bill must pro-
vide in good accounting form the information required in
Article 1046.

       Your third question concerns the cost of preparing
meals and the relation of such item to the monthly bill for
feeding prisoners.   Article 1046 requires the disclosure
of "each item of expense incurred on account of such prisoner",
Cost o,f preparing meals is such an item and should be ac-
counted for and itemized separately in the monthly bill.

       We understand the value to~the Sheriffs of this State
in specifying a particular form to be used in preparing
the monthly bill for feeding prisoners in his charge, but
no one form would, fit all circumstances to be found state-
wide and we will not attempt to prescribe one, The Commis-
sioner's Courts of this State are entitled to know precisely
what the Sheriff in their county actually expends in feeding
prisoners and how that expenditure is determined.   Any form
which accomplishes this in accord with Article 1046 will be
satisfactory.

                     SUMMARY

              The Sheriff's monthly food bill for
       feeding prisoners in his care required by
       Article 1046, Vernon's Code of Criminal Pro-
       cedure, to be submitted to the Commissioner's
       Court must specifically show the name of each
       prisoner,.each item of expense incurred on
       account of such prisoner, and the date of each


                           -5985-
.   .




        Honorable Robert F. Burns, Jr., page 5           (M-1220)




               item, The monthly county food bill for
               May of 1972 submitted by the Sheriff of
               Walker County to the Commissioner's Court
               does not satisfy these requirements.

                      Article 1046 does not, however,
               prescribe a specific form to be used by
               the Sheriff in making his verified account
               of expense incurred by him in the feeding
               of prisoners.  It is proper and necessary
               to include in this monthly food bill the
               cost of labor involved in preparing the
               meals for prisoners.

                                              ctfully submitted,

                                                      zra?  .c-Gtzz
                                                     MARTIN
                                                    neral of Texas

        Prepared by James H. Quick
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE



        Kerns Taylor, Chairman
        W. E. Allen, Co-Chairman



        Ben Harrison
        Scott Garrison
        Bill Campbell
        Lewis Jones

        SAMUEL D. MCDANIEL
        Staff Legal Assistant

        ALFREDWALKER
        Executive Assistant

        NOLA WHITE
        First Assistant

                                     -5986-
