                   August 6, 1948

Hon. Jean Day        Opinion Noo.V-655
County Attorney
Henderson County     Re:   Allowance to a sheriff of
Athens, Texas              15~~per day for safe-keep
                           of prisoners.
Dear Sir:
         We refer to your letter in which you submit
the following:
          "The Sheriff of Henderson County has
     filed a sworn account with the Commission-
     ers' Court of Henderson County under the ,~
     above Section of the Statute aridrequested
     that-he be paid ,thesum of 15# per day for
     the safe-keep of each of the prisonerswho
     have been in his custody for the past three
     months. The Commissioners'Court of Hender-
     son County has refused to pay the Sheriff's
     account for the reason as stated by them
     that they are paying the salary of a full-
     time jailer, who is in charge of the Hen-
     derson County Jail and the prisonerskept
     therein.
         "Under the facts stated above is the
    CommissionersfCourt of.Hendersoneounty
    justified in refusing the payment of the
    Sheriff's account for the safe-keep of pris-
    oners as provided under Section 1 of said
    Article 104C?"
          Section 61, Article XVI of the State Consti-
tution reads in part:
          "All district officers in the State
     of Texas and all county officers in coun-
     ties havine a uouulation of 20.000 or morg
     accordins to the then last urecedinp Fed- '
     era1 Census. shal& from the first day of
Ron. Jean Day - ?age   2   (V- 655)


    January and thereafter,and subsequentto
    the first Regular or Special Session of the
    Legislatureafter the adoption of this Res-
    olutionO be cansersatedon a salav bas&*"
    .(Enphasisadded)
         Henderson County has a population of 31,822,
and, therefore,compensates its officers on a salary
basis,
          Section 13 of Article 3912e of Vernon's Civil
Statutes reads in part:
         "The CommissionerstCourt in counties
    having a population lf twenty thousand (20,-
    000) inhabitantsor more, and less than one
    hundred and ninety thousand (190,.000)inhab-
    itants according to the last preceding Fed-
    eral Census, is hereby authorized and it
    shall be its duty to fix the salaries of all
    the following named officers, to-wit: sheriff,
    assessor and collector of taxes, county judge,
    county attorney, including criminal district
    attorneys and county attorneyswho perform
    the duties of district attorneys, district
    clerk, county clerk, treasurer,hide and ani-
    mal 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 compensationby-him in
    his official capacity for the fiscal year
    1935, and not more than the maximum amount al-
    lowed 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 commission for
    any service performed by him; nor shall the,
    State or any county pay to any county officer
    in any county containing a populationof twen-
    ty thousand (20,000) Inhabitantsor more ac-
    cording to the last precedingFederal Census
    any fee or commission for any service by him
    performed as such officer; provided, however,
    that the assessor and collector of taxes
    shall continue to collect and retain for the
Hon. Jean Day - page 3   (V-655)


    benefit of the officers' Salary Fund or,
    funds hereinafter provided for, all fees
    and commissionswhich 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
    provisions of 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 offi-
    cers collecting the same, as they are re-
    quired under the provisions of this Act
    to account for fees, commissions and
    costs collected from private parties."
          Section 22 readsr
         "The provisions of this Act shall be
    cumulative of all laws not in conflict
    herewith: It is hereby declared to be the
    intention of the Legislature that the com-
    pensation, limitationsand maxirums fixed
    in this Act for the named officers, their
    deputies, assistants and employees control
    over any other Provisions contained in all
    law, general and special."
           In Nueces County v. Currington, 139 Tex. 297,
162 S. W. (26) 687, the Supreme Court copied pertinent
parts of Articles  38839 3891, 3912e and other appropri-
ate 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,~limitationsand
     maximums herein fixed shall also apply to
     all fees and compensationwhatsoever col-
     lected 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 con-
     trary is hereby expressly repealed. The
     only kind and character of compensationex-
     empt from the provisions of this Act shall
     be rewards received by Sheriffs * * *.Pur-
     suant to the constitutionalmandate
Hon. Jean Day - Page 4   (V-655)


       the legislaturepassed and approved (No-
       vember 15, 1935) a comprehensiveact pre-
       scribing in the manner therein stated the
       compensationof district, count and pre-
       cinct officers. ‘secti 1 rt8 &h    leg,,,
       2nd C. S., ch. 465 p0 17 2 now sec. 1,
       art. 3912e, Vernon:s Ann. Clr. St. The
       act carries by recitation (set, 24) the
       legislative interpretationthat the amend-
       ment made fit mandatory that constitution-.
       al countv officers in counties ha ins a
       ponulation of tweatv thousand (2OTCCOl
       inhabitantsor mora, l + * be c msensated
       solelv en a sal v ba I * * * TItalics
       ours)." (Under~~oredsw%ds are in ital-
       its by the Court)
          In view of the foregoingwe are of the opinion
that the provisions of Section 1, Article 3912e, V.C.S.,
prohibit the Commissioners* Court of a salary county from
paying the sheriff the 15# per day for the safe-keep of
each prisoner as provided in Article 10&O, V.C.C.P. Ar-
ticle 1040 was passed in 1923 when all the county offi-
cers in this State were compensatedon a fee basis. In-
1935 the voters of this State adopted Article XVI, Sec-
tion 61 of the Texas Constitutionwhich made it mandatory
that all the county officers in counties having a popula-
tion of 20,000 or more according to the last preceding
Federal Census be compensatedon a salary basis beginning
January 1, 1936, and subsequentto the adoption of this
constitutionalamendment the,Legislatureenacted Section
1 of Article 3912e, which supersededthe provisions of
Subdivision1, Article 1040, V. C. C. ,P.relative to coun-
ty 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.
                                 Very truly yours~,
APPROVID:      ,             ATTORNRYGENWAL OFTEXAS


                              BY
        EY   GENERAL               Assistant
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