            OFFICE OFTHE   AITORNEYGENERALOFTEXAS
                              AUSTIN




Honorable Merritt ?. HLnea
county Attorney
Nlalena county
WidhZld, %X88

m8l' Sir:        -




          Your request for ou               thehem%nabove
aaptioned quention ha8                      quote from Tour let-
ter ea followrt




                                       &I for   each




                          aept in oouaties hs*lng
                          IIof forty tktm*tand(4O,-
                    8 eooaw     to the lent pnead-
                       Federal Uensue. tn suoh
     oountles of forty thous8nd (40 0043)or more
     lnbabitantm, the Coolelssicmma~ Qeurt ma7 al-
     low *8&l jail   guard, getron,      r and tuml-
     key Four DoZlers and Oiity Gent8 $4.50) per
     days prbviabd that, in oumutles hevbg P papa-
     l8tiOIl in &xob#S of three hWd~9.d and fifty-
     five 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 huh-
     dred 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 antotlnt823
     may be fixed by the coxmlasiouers court, polo-
     vlded 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%tihrt8fee8 of of-
     fice Bnd shell be saoouuted for by the aherlff
     in his anut~&report 8s other f88a now pro-
     vided by 18~. The sheriff shall In such co-
     port 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 dif-
     fsrtncJe betSfee?suah expenditure8 8ud the
     amount allowed by the ooml8sloneps oourt
     aha‘L1be d88md to eOnat%tUte the net profit
     for whloh s8I.dbftlaer shall account 84 f4e6
     Of QffiC8.
          "Th8 Midland County jail 3.8On the fOUFth
     4:~;  of the court house. The eheriff 8ud his
             his WFf8 and two childrW# live I.JL 8n
     8pp%rT'
           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. BloatOP the tlue the uheriff eznploys
     a cook whose aelary le charged t0 expehse of
     OPfiC8, But thu sheriff's wife is always.p*e-
     ent to supepvlse the work, and SOlU@tiEWS does'
Bonoreble llerrlttF. 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 proper-
        ly 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.80be rcoounted
        for es profits end fees of offloe, es the oesh
        profit from the jail 1810'
             Artlale lob6 of the Code of CrlaiPal Procedow   pro-
vides    ar follors~
             ‘At eeah nipalar term of the oomi81~lon-
        or8 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 II-
        pens8 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."
                                                  Prooedum
             Artlole 1047 of the Code of CrS.ml.xi81         pro-
vides 88 folloifsl

             *The aomls8loner8 oourt shallex~e
        swh eeoount end ellov the same, or so muoh
        thereof 8s 1s reeasoaebleand In 8ooord8noe with
        lev, and ahall order,8 draft issued to the sher-
        lit 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)0of 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 4hor-
iff to file hia verified account for the exp8nne Inourred by him
for the rafcrkeeplng and rlntenance of prI4oner4 vlth the mm-
            aonrt at each regular term of,:msldcourt.
~l~~iOIltlTl4'
          ArtFole 1047, 4upra. requIre4 the oaaat8410ner4t aourt
to examl.nerush amount and allow th8 8nme, or 40 mah thereof
a4 14 rearonable md In aaaordanoe vith lav.
            You atatela your litter that “I318 sheriff and hi8
iam    (aon8imtlng  of four people) eat their ma14 th8t are pm-
pared 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 profit4 and fee4 of offioe, aa the oa4h
profit fr.arthe jell 18f'
          Am ve unde~atand the feat8 from your letter, the #her-
Iff 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 rrapproperly mcouut
for the profits derived from the fmsding of the prirroxmw vhere
the grocerlea ax-e80 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.41Froaedtwe.
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 llorrlttF. 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 ac-
count 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, axidthere-
fore 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 approv-
     ing the sherlffts aaoount, and in boaopting
     for the murky the (2,500 rrrd 2,000, zwspective-
     ly, vas vholly void, henae 8ubscot to,the ooll4t-
     en1 attaok. Cameron County v. Fox (Tex. Corn..
     App.)  2 S. W. (2d) 433."
          In vlev of the foregoing authorltler, you are respect-
fully 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 lotually 18ed in feeding the prisoners
rr0lathe 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~erencew
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.ndCounty are compensated on a fee ba814.
          In vlev of the statemmt mede iu your letter that mMo8t
or the tiae the sheriff e14~loysa 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.ncemudo by the Corn-
mls4ioner4t c0twi for the feeding and eiainteaance0s the PrisO-r4
1.nthe 044~ 4uumer aa the coat of the groceries are aharged Bgainrt
Honorable Rerrltt F. Hines, Page 6


said allovanoe in detemlnlng whether the sberlff lutema46 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
                                             QERERhLOF l’lU.ha




RP:RS
