       OFFICE   OF THE   ATTORNEY    GENERAL   OF TEXAS

                            AUSTIN




Bororable D. Rlohud VoRee
Cdurtr Attormer
Wil8or Caumty                                    A
Floreerllle,Texrr                               .' \

~)erraim                 opmoB Ho.
                         Rer Is the 15/          iii'under
                             Seotlor 1 6f-Artlole 1040 a
                             fee of office and‘*as ikhave
                             to be +eqoumted for? "\.~ "1
          Your recent request 6    6* opinion of thikvbepart-
meat on the above atited quey&ou,haalb&en received.
                           /    I,' ,I
          We quote from yow~~lefter~kr~fdllova~
          "The Sherlff!t-&y-m&m& &       requested an
     oplalon 88 to vbether~or 8ot,~Sehtiom 1, of Arti-
     ale 1040, Cod~ofSrimkqal    Prosedtim,providimg
     '1. For the fifqKeep‘~~,of
                              baab pri\pler for eaoh
     da7 the sum,bf flfteemoe&e, rot to exoeed the
     N   of two %mdiwd dollirr +r month,' oorrtitutes
     toor of offlo~~ha~,,haYe/~o pe aoaounted for.
                    ~thmhi&     sc'iti~exrrnirred
                                                261 a.w.
                                   but ~isos I do not
                                    I hare bees '+cable

                                          Earrio Cou8tr,
                                          the above provi-


           priaoigle of exolusio~ applies,
           that the Legislature,la thue aepar-
           ate17 classifying theeetieme,and pro-
           vldimg apeoifloallyonly that the aet
           profit from t*the support amd PaiBt6E-
           ancetl of prisoners should be report-
           ed aa a fee of office, vhloh bad not
Honorable D. Riohard Voges, Page 2


           hitherto been so under the Hammond deoi-
           alox, mea& thereby to exclude from the re-
           qulrement the other Item not so mentlored,
           the 15 cents per day charge for safe-keep,
           and ao i&ended that   - up to the $200
           1-t   - it should be retaimed by the sher-
           iff as au extra allowaaoe for which he vaa
           sot required to acoount under the fee bill.'
         "In the oaae of Holax County vs.Yarbrough, 34 9.
    W. (2nd) 302, it is held:
                “‘We have concluded that the item of
           15 oexts per day for safe-keepingvar not
           intended to be l.mluded in that account.'
           (The account required by Article 1046, C.
           C.P.)
          "Under these authorities I have advised the sher-
     iff that the 15 cents provided for under Seotlon 1 of
     Artltle 1040, van not a fee of office and did not have
     to be aoooumted for.
           'Please advise me whether or not this is correot.'
          After oarefully conaiderimgthe authorltlosabove mem-
tloned aud other pertinert statutes as herelxaftermentloxed ve
are uxable to agree with the conolualor stated fn your letter.
           Artlole 1040, Code of Crlmixal Procedure, reads a#
followsl
          "For the safe keeplug, support and mainter-
     anoe of prloomers confined in jail or wider guard,
     the sheriff shall be allowed the follovlmg charges:
          "1. Fcr the safekeep of eaoh prlsomer for
     each day the sun of flfteem cents, not to exceed
     the sum of tvo hundred dollars per month.
          "2. Far support and maintenamce, for each prl-
     saner for each day such am amount as may be fixed
     by the commissioners court, provided the ssme shall
     be reasomably sufficientfor such purpoae, and in
     mo event ahall it be less tham forty cents per day
     -or mom than seventy-fivecents per day for eaoh
Honorable D. Richard Vogea, Page 3


    prlaomer. The net profits shall aonatitute     fees
    of office and shall be aooounted for by the aher-
    ln his amma report as other feea nov provided
    by lav.  The sheriff ahall in auoh report fumlah
    an ltemlaed verified account of all expemllturea
    made by him for feeding and malntemroe of prlaon-
    era, accom’palylng‘auohreport with receipts sld
    vouchers lr support of such ltema of expeadlture,
    snd the differencebetween auoh expendttureaand
    the amount alloved by the ooaaalaalonera   court ahall
    be deemed to constitute the net profits for whloh
    said offloer shall aocoumt as feoa of office.
          “3. For necessary medical bill (Yd reasonable
     extra compenaatlonfor attention to a prisoner
     during sickness, such an amount as the comnlsalon-
     ers court of the county where the prisoner Is con-
     fined may determine to be just and proper.
          "4. For reasonable funeral expenses ln case
     of death."
          Wilson County has a population of seventeen thousand,
sixty-six (17,066) inhabitanta,socording to the 1940 Federal
Census and ve are informed that the oouaty offlolala of said
county are compensatedom a fee b&ala.
         Article8 3896 and 3897,       Vernonta   hot&ted   (llvllSta-
tutes read as follwar
         Art,   3896.   (3894)   “To keep aooouata   -
    Each district, county and preclnot officer shall
    keep a oorreot atatemnt of all fees earaed by
    hlm and all sums oom%?q into his hands as depoalta
    for coats, together uith all trust funds placed
     in the registry of the court, fees of offloe a.md
    conanlsalonain a book or ln books to be provided
    him for that purpose, ln which the officer, at the
    time vhea such deposit.8are made or such fees and
    commissions are earned and vhen any or all of such
    funds shall come into his harda, shall enter the
    same; snd It shall be the duty of the county audl-
    tor in counties having a county auditor to annuslly
    examine the books and account8 of such officers
Honorable D. Richard Vogea, Page 4


     axd to report his findings to the next succeed-!
     lag gramd jury or diatriot oourt. Ia coumtlea
     havilg no county auditor, it shall be the duty of
     the Comlaaloaera~  Court to amke the examlmtlom
     of said books and aocoumta or have the same made
     and to make report to the graxd jury as hereix-
     abovo provided."
           Art. 3897. (3895) "Sworn statement -
    Each district, county and precinct officer, at
    the close of each fiscal year (December31at)
    ahall make to the dlatrlot court of the county
    la vhlch he reafdea a avorx statement lx trlpll-
    cate (on fonua dealgaed and approved by the State
    Auditor) a aopy of srhlchstatement shall be for-
    varded to the State Auditor by the clerk of the
    district court of said county within thirty (30)
    days after the same baa beer filed in his office,
    and one copy to be filed with the county auditor,
    If any; otherwise, aald copy shall be filed with
    the Coaaslaalonerat   Court. Safd report shall ahov
    the amount of all feea, comiaaloaa and compem-
    aatlona vhatever earred by said officer during
    the flaoal year; and aeoordly, shall show the
    amount of fees, coamlaaloxaand aompenaatlora
    collected    by him durlag the fiaoal year8 thirdly,
    said report shall oontala an itemlaed atatemant
    of all fees, comlaalona and compe~aatloraoarmad
    during the fiscal year vhlch vere mot colleoted,
    together vlth the naa~~of the'party ovm       said
    fees, comalaaiona    axd oomperaatlora. Said report
    shall be filed not later thar February 1st follov-
    iq the oloae of the flacal year and for each day
    after    said date that raid report remains aot filed,
    said offloer shall be liable to a penalty of Twenty
    Five ($25.00)Dollars, vhloh may be recovered by
    the county in a ault brought for such purposes,
    and ln addition said officer shall be aubjeot to
    reaoval from offloe."
          The last two paragraph8 of Article 3891, Vermor*a Re-
vised Civil Statutes, read as follOW8r
          "The compenaatiorqllmltationsand maximums
     herein fixed ln thla Act for officers shall include
     and apply to all officers mentioned herein 1s each
     and every county of this State, and it is hereby
     declared to be the intention of the Idgi8l8tUIW
     that,the provisions of this Act shall apply to each
     of said officers, and any special or general law
Boaorable D. Richard Voges, Page 5


     laoon8lrte~twith the provlaloms hereof ir hereby
     expremly repealed in 80 far a8 the same may be
     lmmnslstent with this Aot.
          "The aomperaatlolr,   lirltatloasamd apxlanms
     hereti fixed rball also apply to all Sees aad aom-
     persatloa what8oever aolleotedby eald officers
     In their offlalal aapaclty,    whether aaoountable
     as fee8 of offloe under    the present law, and amy
     law, general or special, to the aontrary l.ahere-
     by expressly repealed. The only kind and aharaa-
     ter of cmqeneatloa exempt from the prorlaloas of
     thla Aat shall be rewards received by Sheriffs
     for appreheralonof criminals or fugitives from
     justice aiadfor the reaoverydf stolen property,
     aad moneys reaeived by Couaty J'udgeraad Justlaea
     OS the Peaae for performing marriage ceremonies,
     wh-oh sum shall aot be accountable for and not
     required to be reported a.8Sees of office."
          It appears that the terns of the last above quoted
artlole are lmlunfve, to the extent that ia order for Seen
to be exempted thereumder,they must be speclfioallyexcluded.
            In the case of Nlahola v. Oalvestvn County (Sup. Ct.
of Texas, 1921), 228 S.W. 547, Galveston County sued the appel-
lamt to recover certain   See6 and conmiaslonsreoelvedby him ar
Tnx Aaseasor and Colleotor of 5alveaton County, who also per-
formed the duties of Assessor am&Collector from drainage     dls-
tr%ot Sor which latter aervfoe he received a aompematior for
which reoovem was sought. The Court, in oonolderingthe care,
compared the artlales under which compenclatlon  18 allowed to
Tax Assessors   and Colleotorsfor their eervloer in assessing
and collecting taxea of draiaage districts to the artlole under
whloh the Tax Aeeemsor and Collestor of the county may be de-
%-ted    Assessor and Collector for aa independentschool dis-
trlot,  and receive 1~ return for aotlng as such certain   uommle-
sloas.   The Court aomldered altuatlorearlelag under each artl-
ale with respect to accountabilityof aommlaeioaareceived
thereuader to be completelyanalogous. The court cited the oa8e
of Ellie County v. Thompson, 56 3.W. 49, quotiag from such caoe
in the followlag languager
          "The phrase 'Sees of all kinds' embraaes every
     kind of compensationallowed by law to a olerk of
     the county court, unlesr excepted by some proviso
Honorable D. Richard Voges, Page 6


     of the statutes.... The exoeptlons are ao defin-
     ite that by iapllaatlorall See8 rot mertiored ir
     the exception8 are excluded therefrom, and there-
     by Included wlthln the requirement of the act.”
          In view of the Soregollg authorities you are reapeot-
Sully advised that it is the opinion of thlr department that
the above mentioned compensationreceived by the sheriff  for
the safe keeping of prisoners is a fee of office and must be
accounted for as ouch.
          Trusting that the foregoing SulZy axewere your ln-
qulry, we are

                                        Very truly   your8
                                     ATTORREY%XE3UL   OFT?ZXAS



                                               Ardell Xllliam
                                                    Assist-t
