The Attorney General of Texas 

December 20, 1978 

JOHN L. HILL 

Attorney General 

Honorable Henry Wade 

Criminal District Attorney 

Dallas County 

Sixth Floor, Records Building 

Dallas, Texas 75202 

Opinion No. H- 12 9 7 

He: Constitutionality of article 

1041b, Code of Criminal Procedure, relating to vacations for 

jailers. 

Dear Mr. Wade: 

You have requested our opinion concerning the construction of article 

104lb of the Code of Criminal Procedure which provides: 

Vacations for jailers, jail guards and matrons 

Every member of the sheriff’s department assigned 

to duty as jailer, jail guard, or jail matron at any 

county jail in any city of more than twenty-five 

thousand (25,000) inhabitants shall be allowed fifteen 

(15) days vacation in each year with pay, not more than 

two (2) members to be on vacation at the same time; 

provided that the provisions of this Section of this Act 

shall not be applied to any such jailer, jail guard, or 

jail matron in any city of more than twenty-five 

thousand (25,000) inhabitants, unless such member 

shall have been regularly employed as such jailer, jail 

guard, or jail matron for a period of at least one year. 

Each preceding Federal Census shall determine the 

population. 

The sheriff having supervision of the county jail 

shall designate the days upon which each jailer, jail 

guard, or jail matron shall be allowed to be on 

vacation. 

The sheriff having supervision of the county jail in 

any such city who violates any provision of this Article 

shall be fined not less than Ten Dollars ($10) nor more 

than One Hundred Dollars ($100). 

p. 51iZ 
Honorable Henry Wade - Page 2 (H-1297 ) 

The basic purpose of this statute is to give a statutory vacation period to jail 

guards, jailers and jail matrons who work in the county jail of a larger metropolitan 

area. Your question involves the conflict which arises in larger counties where it is 

impossible to provide each jailer, jail guard or jail matron with 15 days vacation and 

to schedule the vacations so that no more than two are on vacation at any one 

time. This situation occurs when there are at least 35 employees who are entitled 

to vacation during the year. We believe the clear intent of the legislature was to 

require that a sufficient number of jail personnel is always present to insure 

adequate security. It is doubtful that the legislature contemplated that there 

might be counties employing a jail staff which is so large that it is impossible to 

provide 15 days vacation for each employee unless more than two are on vacation at 

the same time. We believe that the statute must be interpreted to reflect the 

legislative intent and that each jail guard, jailer or jail matron who has been 

employed for at least one year is entitled to an annual vacation of 15 days even 

though it may result in more than two employees being on vacation at the same 

time. The sheriff should insure that the legislative intent is fulfilled by arranging 

the vacations so that adequate security is always provided. See generally V.T.C.S. 

art. 5115.1, S 9(a)(3). 

You ask how the 15 day period is to be calculated. A Court of Civil Appeals 

has construed a statute very similar to 1041b which provided that members of fire 

departments in cities of more than 30,000 inhabitants were to be given 15 days 

vacation. In the dispute over whether or not vacation time had been given, the 

court reasoned that a day of vacation is a dav off from work which would otherwise 

be a normal working day but for the vacation. Coffman v. City of Wichita Falls, 

374 S.W.2d 798 (Tex. Civ. App. - Fort Worth 1964, writ ref’d). This definition 

excludes legal holidays and other non working days from being included in the 15 

day vacation period to be given jail guards. See also Attorney General Opinion V1072 (1950). 

SUMMARY 

Jail guards who have regularly been employed as such for 

one year receive 15 days vacation from work. The 

prohibition against more than two guards on vacation at the 

same time is ineffective if impossible to comply with. 

P. 5113 
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Honorable Henry Wade - Page 3 (B-l2g7) 

APPROVED: 

C. ROBERT HEATH, Chawman 

Opinion Committee 

P. 5114