JIM MAlTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12549 

Austin, TX. 78711.2549 

512’475-2501 

Telex 9101874.1387 

Telecooier 512/47502SS 

714 Jackson, SUM 7W 

Dallas, TX. 752024508 

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El Paso, TX. 799052793 

915/53334a4 

1Wl Texas, Suite 700 

Houston, TX. 77002.3111 

713/222-5999 

W6 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

9061747-5239 

UOB N. Tenth, Suite B 

McAllen, TX. 7SWl~lSB5 

5121882.4547 

200 Main Plaza. Suite 400 

San Antonio, TX. 782052797 

51212254191 

An Equal Opportunity/ 

Afflrmatlve Action Employer 

The Attorney General of Texas 

Dacember 20,, 1985 

Overrules C-739 

Honorable Morris Samford. Jr. 

Panola County Attarney 

Room 225. Courthouse 

Carthage; Texas 75633 

Opinion No. JM-398 

Re: Reimbursement 

inmates for money lost to escaping 

prisoner 

Dear Mr. Samford: 

You inquire 

of county jail 

who is legally responsible for reimbursement to 

_ _ 

county jail inmates for money taken from the jail by an escaping 

prisoner. We conclude that the county is legally responsible for 

money retained by a county jail for safekeeping. 

The legislature has provided that the sheriff is responsible for 

the operation of the jail and for the safekeeping of prisoners 

confined in the jail. Article 5116, V.T.C.S., provides, in part, that 

(a) Rsch sheriff is the keeper of the jail of 

Fis cou~lty. Be shall safely keep therein all 

prisoners committed thereto by lavful authority, 

subject to the order of the proper court, and 

shall be responsible for the safe keeping of such 

prisoners. 

(b) fhe sheriff may appoint a jailer to take 

charge of the jail, and supply the wants of those 

therein confined; but in all cases the sheriff 

shell exercise a supervision and control over the 

jail. 

Article 16.21 of tx Code of Criminal Procedure states, in part, that 

Every sheriff shall keep safely a person 

cosnuitte~i to his custody. 

See also Attorney General Opinion H-1190 (1978). 

The legislature also has provided that the "Commissioners Court 

shell provide safe ,and suitable jails for their respective counties," 

and that the jails, shall comply with the rules and procedures of the 

Commission on Jail Standards. See V.T.C.S. art. 5115, as amended in - 

p. 1821 
Honorable Morris Samford, Jr. - Page 2 (JM-398) 

1975. While the sheriff is responsible for operating the jail to 

provide the safekeeping of prisoners, the "county is liable for all 

expenses incurred in the safekeeping of prisoners confined in the 

county jail," except that a county transferring a prisoner to another 

county is liable for such expenses for the transferred prisoner. See 

Acts 1985, 69th Leg., ch. 269, at 2340 (to be codified as Code Grim. 

Proc. art. 104.002). See a,lso Albert1 v. Sheriff of Harris County, 

m, 406 F.Supp. 649,rFD. Tex. 1975) (commissioners court has 

duty to maintain safe and suitable jail; sheriff has duty to keep 

safely prisoners in his custody). 

Pursuant to the enactment of article 5115.1, V.T.C.S., in 1975, 

the Commission on Jail Szandards promulgated rules and procedures 

relating to minimum standards for admission to and release from county 

jails which provide the following: 

0265.6. Inmate File. 

An individuel file on each inmate shall be 

established on iacake. A copy of all documents 

that purport to legally authorize the inmate's 

commitment shell become a part of the inmate's 

record, along with information obtained under 

5256.4' of this title (relating to Information 

about Inmates) ar.d 9256.5 of this title (relating 

to Health Tags). 

9265.11. Inmate P,roperty Checking. 

If an inmate :.a not going to be released, the 

receiving officer shall carefully record and store 

such of the inmate's property as is taken from him 

and issue the imaate a receipt, signed by the 

receiving officer, and the inmate, to be kept in 

the inmate's file ,pending release. 

0269.1. Record Sgistem. 

The sheriff shall establish a records system 

for the detention~Eacility which includes: 

(1) a daily relcord of the number of inmates in 

the detention Eacility; 

(2) a record on each inmate, including informetion ob&ined during admission, all 

classifications given him, personal property 

receipts, cotmftment instructions, transfer 

orders, release orders, date of booking and 

p. 1822 
Honorable Morris Samford, ;Ir. - Page 3 (JM-398) 

release, discpplinary actions, unusual occurrences , and any other information relating to 

the inmate's confinement; 

(3) a record of receipts and expenditures of 

money for ead~inmate's account. . . . 

(Emphasis addsz.). 

37 Tax. Admin. Code, Part IX, 55265, 267, 269. 

For the safety of irlnlates and to comply with jail standards, 

prisoners are not permitted to keep any money while confined in jail. 

All money remains in the custody of the sheriff where it nay be 

deposited in an account that serves as a depository for all inmates 

personal funds. Normally, a prisoner must purchase certain personal 

items, such as soap, pr~cstamped envelopes, tobacco, etc., which 

frequently are purchased frma a jail commissary. See 37 Tex. Admin. 

Code, Part IX, 04259.32, 259.132. See also AttomFGeneral Opinion 

MW-143 (1980). Each innate has a record that shows the receipts to 

and expenditures of money :irom his account, including debits for each 

purchase made at the commissary or wade elsawhere for the inmate. 

We believe that offic!.als with the duty to operate a county jail 

inpliedly contract with the inmates that the jail will repay the 

unused balance of their accounts on their release, thereby creating a 

relation analogous to that of debtor and creditor in the context of a 

bank and the bank's depositors. Cf. Grebe v. First State Bank of 

Bishop, 150 S.W.2d 64, 67 ('fax. 1941); City National Bank of Bryan v. 

Gustavus, 106 S.W.2d 262, 264 (Tex. 1937). 

It is well settled that a county commissioners court has only the 

powers conferred either expressly or by reasonable implication by the 

constitution and statutes of the state. See Tex. Const. art. V, 518; 

Canales v. Laughlin, 214 S.W.2d 451, 453 !Tex. 1948); Attorney General 

Opinion C-739 (1966). It :Ls our opinion that, in order to provide 

safekeeping for prisoners confined in jail and to comply with the 

rules of the Comwission on Jail Standards, the sheriff has a duty to 

keep and administer the inmates' money until their release and to 

repay to each the unused balance when the inmate is released. The 

retention and repayment of l-mates' money is a necessary function and 

expense incurred by the c.ounty "in the safekeeping of prisoners 

confined in jail." As such, we conclude that a county is responsible 

for the repayment of funds owed to inmates by the jail, even if the 

funds are taken from the jail by an escaping prisoner. Cf. Attorney 

General Opinion H-1253 (1978). But cf. Attorney Gene= Opinion 

JM-170 (1984). 

In 1966, this office :stated in Attorney General Opinion C-739 

that it found no authorizat:ton for a county to reimburse prisoners of 

p. 1823 
Ronorable Morris Samford, Jr. - Page 4 (JM-398) 

. 

a county jail for cash belmnging to prisoners which was taken from a 

county jail by escaping pris,oners. Attorney General Opinion C-739 is 

no longer valid because it was decided prior to the enactment of 

article 5115.1 and the rules of the Coamrission on Jail Standards. 

It has been suggesteei that the sheriff and his sureties are 

legally responsible for the, reimbursement to prisoners whose money is 

taken by a jail escapee. A sheriff may be liable to a person or 

entity that suffers damage resulting from his official conduct if he 

fails to perform his dutier! or wrongfully or negligently performs his 

duties. Hence, a sheriff could be liable for a loss that resulted 

from his negligence in keeping property in his custody. See V.T.C.S. 

arts. 5998 through 6003a; art. 6866. An action to recoverT&ages may 

be brought against a sheriff and his bondsmen for a breach of his 

official duties, but sureties on a sheriff's bond are liable onlv for 

a violation of the conditions of their bond. See Lasater v. Waits, 68 

S.W. 500, 501 (Tex. 1902); Jeff Davis County TDavis, 192 S.W. 291, 

294 (Tex. Civ. App. - El Pa;10 1917, writ ref'd). Cf. Hemphill County 

v. Adams, 406 S.W.2d 267, 272 (Tex. Civ. App. - tixlo 1966). rev'd 

on other grounds, 408 S.W.:!d 926; Browning v. Graves, 152 s.w.~= 

(Tex. Civ. App. - Fort Worth 1941, writ ref'd). 

The liability of a sh.e.riff and his sureties for the sheriff's 

failure to faithfully pex'form his official duties involves fact 

questions which this officr: is not equipped to answer in the opinion 

process. 

SUMMARY 

The retention and repayment of inmates' money 

by the personnel of a county jail are a necessary 

function and expense incurred by the county in the 

safekeeping of prisoners confined in the jail. A 

county is responsible for the repayment of funds 

owed to inmates by the jail which are taken from 

the jail by an esc:aping prisoner. 

Very truly your 

. J-h 

JIM MATTOX 

Attorney General of Texas 

JACK HIGRTOWRR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorner General 

p. 1824 
Honorable Morris Sanford, Jr. - Page 5 (JM-398) 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Comittec! 

Prepared by Nancy Sutton 

Assistant Attorney General 

p. 1825