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 21417428944
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1Wl Texas, Suite 700 Houston, TX. 77002.3111 713/222-5999
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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
Dacember20,,

1985 Overrules C-739 Honorable

Morris Samford.Jr. Panola CountyAttarney Room 225. Courthouse Carthage;

Texas **75633** OpinionNo. JM-398 Re: Reimbursement inmates for money lost to escaping prisoner Dear Mr. Samford: You inquire of county jail

who is legally responsible for reimbursementto

_ _ 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 providedthat the sheriff is responsible for the operation of the jail and for the safekeeping of prisoners confinedin 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 shallbe responsible for the safe keeping of such prisoners. (b) fhe sheriffmay appoint a jailer to take charge of the jail, and supply the wants of those therein confined;but in all cases the sheriff shell exercisea supervision and control over the jail. Article 16.21 of tx Code of CriminalProcedurestates,in part, that

Every sheriff shall keep safely a person cosnuitte~i

to his custody. See also AttorneyGeneralOpinionH-1190 (1978). The legislature

also has provided that the "Commissioners Court shell provide safe ,and suitablejails for their respectivecounties," and that the jails, shall complywith the rules and proceduresof the Commissionon Jail Standards. See V.T.C.S. art. 5115, as amended in -

p. 1821HonorableMorris 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 safekeepingof 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 codifiedas 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 safelyprisonersin his custody). Pursuant to the enactmentof article 5115.1,V.T.C.S., in 1975, the Commission on Jail Szandards promulgated rules and procedures relatingto minimum standardsfor admission to and release from county jailswhich provide the following:

0265.6. InmateFile. An individuel file on each inmate shall be establishedon 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 propertyas is taken from him and issue the imaate a receipt, signed by the receivingofficer, and the inmate, to be kept in the inmate'sfile ,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 detentionEacility; (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. 1822Honorable Morris Samford, ;Ir. - Page 3 (JM-398)

release, discpplinaryactions, unusual occurrences , and any other information relating to the inmate'sconfinement; (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, prisonersare not permittedto keep any money while confinedin jail. All money remains in the custody of the sheriff where it nay be deposited in an account that serves as a depositoryfor all inmates personal funds. Normally, a prisonermust 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 elsawherefor the inmate. We believe that offic!.als with the duty to operatea county jail inpliedly contract with the inmates that the jail will repay the unused balance of their accountson their release,thereby creatinga relationanalogousto that of debtor and creditorin the contextof a bank and the bank's depositors. Cf. Grebe v. First State Bank of City NationalBank of Bryan v. Bishop, 150 S.W.2d 64, 67 ('fax. 1941); Gustavus,106 S.W.2d 262, 264 (Tex. 1937). It is well settledthat a county commissioners courthas only the powers conferredeither expresslyor by reasonableimplication by the constitution

and statutesof the state. See Tex. Const. art. V, 518; Canalesv. Laughlin,214 S.W.2d 451, 453 !Tex. 1948);AttorneyGeneral Opinion C-739 (1966). It :Ls our opinion that, in order to provide safekeepingfor prisoners confined in jail and to comply with the rules of the Comwissionon Jail Standards, the sheriffhas 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 retentionand repaymentof l-mates' money is a necessaryfunctionand expense incurred by the c.ounty"in the safekeeping of prisoners confinedin jail." As such,we concludethat a county is responsible for the repaymentof funds owed to inmatesby the jail, even if the funds are taken from the jail by an escapingprisoner. 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 prisonersof

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

a county jail for cash belmnging to prisoners which was taken from a county jail by escapingpris,oners. AttorneyGeneralOpinion 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 performhis dutier! or wrongfullyor negligently performshis duties. Hence, a sheriff could be liable for a loss that resulted from his negligencein 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 officialduties,but suretieson a sheriff's bond are liable onlv for a violationof the conditions of their bond. See Lasaterv. 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; Browningv. 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 personnelof a county jail are a necessary functionand expense incurred by the county in the safekeeping

of prisonersconfined in the jail. A county is responsiblefor the repayment of funds owed to inmatesby the jail which are taken from the jail by an esc:aping prisoner. Very truly your

. 

# J-h

JIM MATTOX AttorneyGeneralof Texas JACK HIGRTOWRR First Assistant

AttorneyGeneral MARY KELLER Executive

Assistant

AttornerGeneral

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

ROBERT GRAY Special

Assistant

AttorneyGeneral RICK GILPIN Chairman,

OpinionComittec! Prepared

by Nancy Sutton Assistant

AttorneyGeneral

p. 1825