Untitled Texas Attorney General Opinion

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able as fees of ofrioe nnder the present law, and any law, general or speofal, to the oontrary is hereby expressly repealed.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 AX: mp