AUSTIN 1% TEXAS 

Hon. Fred C. Brigman, Jr. 

County Attorney 

Uvalde County 

Uvalde. Texas Opinion No. V-1436 

Re.: Legality of compensating the sheriff's wife 

i for feeding prisoners 

i, 

in the county jail under 

Dear Sir: the submitted facts. 

k 

Your request for an opinion is substantially as follows: 

"The sheriff of Uvalde County is 

compensated on a salary basis and had 

been since the passing of the Oonstitutional Amendment. In addition to his 

salary, the County has been paying him 

$.75 per day per prisoner for feeding 

of the prisoners and $.15 per day for 

safe-guarding the prisoners. At all 

times prior to April, 1951, the sheriff 

did not live In the County Jail and 

turned this check, endorsed in blank, 

over to his deputy to spay the deputy's 

wife for feeding the prisoners. The 

profit being considered as her compensation for cooking. On April 1, 1951, 

the sheriff resigned and the deputy was 

duly appointed for the unexpired term 

by the Commissioners' Court. The new 

sheriff continued to reside in the jail 

and his wife continued to feed the prisoners . The new sheriff's contention is 

that he should be allowed to continue 

to compensate his wife by giving her the 

check paid him by the County and letting 

her keep the profit, if any, as she had 

been receiving the money under the prior 

sheriff for a period of almost four years. 

The employment of a cook for the jail has 

never been authorized by the Commissioners' 
Hon. Fred C. Brigman, Jr., page 2 (v-1436) 

Court. The new sheriff has also, at 

various times after April 1, 1951, kept 

prisoners for the Federal Government receiving the sum of $1.50 per prisoner 

per day for feeding and safe-guarding 

of prisoners. Apparently, no Federal 

prisoners were received under the former sheriff." 

You have presented for determination the following questions: 

"Question No. 1. Under the above fact 

situation, is the new sheriff's wife entitled to retain the profit from feeding 

prisoners? 

"Question No. 2. Under the above fact 

situation, was the former sheriff entitled 

to pay the profit from feeding prisoners to 

his deputy's wife? 

vQues 

aooortionm 

tion No. 3. Should there be-any 

~~. &~ ~~ .----~~ient of the sum paid by the Federal 

Governmentbetween safe-guarding and feeding 

of prisoners.? 

"Question No. 4. In the event that 

auestion No. 1 is answered in the affirmative, is the new sheriff's wife entitled 

to the entire amount received from the Federal Government or only to $.75 per prisoner 

per day?" 

The sheriff of Uvalde County is-compensated 

on a salary basis by virtue of Section 61, Article 

XVI of the Constitution of Texas. 

In Attorney General's Opinion V-1232 (~1?51), 

it was held that 

"The Commissioner's court is not authorized to allow the sheriff any specific 

sum for the boarding of prisoners, but only 

the actual expenses incurred by him in feeding the prisoners in his custody, whether 

by a contract with an individual at a flat 

daily rate per prisoner, or otherwise." 
- - 

Hon. Fred C. Brigman, Jr.:, page 3 (V-1436) 

A sheriff .would ordinarily be,prohibited 

from employing his wlfe~.as'a cook for pr'isoners in the 

county,jail, by vlrtue:~of~Articles432.atid 435, V.P.C. 

However, there Is an exception to this prohibition with 

regard to any person who has been continuously employed 

In any office or employment for two'years prior to the 

election or appointment of the officer appointing such 

person to office or employment. -In Attorney General's 

Opinion V-1142 (1951) it was stated: 

!'A person who was employed by the county 

at the time his ~brother first ~took office as 

County Commissioner on January 1, 1951, land 

had been continuously so employed for a period 

of two years immediately prior ther~eto, may 

be retained~asa c,ounty employee without vi- 

'elating the nepotism statute (Article 432, 

V.P.C., 

ch. 

as amendeSj, Acts 51st Leg., R.S. 1949, 

126,. p. 227). 

Inasmuch asyou state that the wife of the 

sheriff has been employed two years .prior to his ap- 

. . ;: pointment, and in view of the further fact that the 

sheriff is allowed the actual and necessary expenses 

',,.~, for the maintenance of'the jail, It, Is our opinion that 

1, ;: the sheriff's wife ~may act in the capacity of a cook 

forthe jail. It is to be noted that the feeding of 

'.I prisoners comprises' a part of the necessary functions 

.>J~ 

;I,' involved in the operation of the jail, and need not 

apr~ : necessarily be subject to authotiization by the com- 

.;.: missioners' court since this employment is discretion- 

-ary with the sheriff. The actual and necessary expenditures~ incurred~ by reason of the operation of the jail 

~,are subject to scrutiny by the commissioners'~court. 

'We are not concerned here width an office but only a 

~oontract of employmentwhich is an incidental part of. 

the necessary expenditures for. the operation of the 

jail. 

In answer to your second question, we point 

out that the expense of feeding may be, as is the case 

under the facts which you set out, incurred at a flat 

dally.rate. As stated in,our discussion under your 

first question, the sheriff, in the maintenance and 

operation of the -jail, Is entitled to his actual and 

necessary expenses. Since it would appear that the 

contract between the former sheriff and his deputy's 

wife was for the.feeding of prisoners at a flat daily 

rate ~per meal there Is no question of the payment of a 

Profit and hence a proper basls ~for such payment. 
. 

2’138 Hon. Fred C. Brigman, Jr-,;. page 4~ ~t~(V+1436) 

There is no statutory basis for the payment 

of $.15 perday fee for prisoners and ~the $.75 per ~. 

day fee for feeding, as provided in Article 1040, 

V.C.C.P., in salary counties In the population bracket of Uvalde County since these payments are prohibited by Section 3 of Article 3912e, V.C.S. Att'y Gen. 

Op. v-655 (1948) and O-1242 (1939).~ Although these. 

fees are not authorized, as stated, the sheriff is 

entitled to the expenses necessary for operation of 

the jail. 

In answer to your question No. 3, It is our 

opinion that a county is entitled to receive the entire amount from feeding and safeguarding federal prisoners.. In Hood v. State, 73 S.W.2d 611, 613 (Tex. 

Civ. App. 1934, error ref.) the court stated; 

"While article 1040 in general terms 

provides a remuneration oPthe sheriff, within prescribed limits, for each prisoner 'confined in jail or under guard,'.yet it further 

deals with, 'expenditures and the.amount allowed by the commissioners court,'.and in the, 

succeeding articles provision ismade only 

for such allowance to be paid by the commissioners' court for the subsistence and,~care 

of county prisoners. 

:. 

"The doubt arises as to the construe- ~.:: 

tion-of ,article 1040 ~of the Criminal Procedure: 

Code, as to whether the ~remuneration forthe, :: 

subsistence and safe-keeping of federal, prls-.~ 

oners, allowed and.paid under contract-with 

the United States government; should be read 

.into the provision of the statute~so as to . . 

make such payment accountable feesof office, 

and we also express.the doubt as has been 

heretofore done by other Courts of Civil Ap: 

peals, supra. 

'In the re orted cases of&ale v. State 

(Tex. Civ. App.7 67 S.W.(2d) 1060; Orndorf v. 

El-Paso County, supra; and.Binford v. Harris 

County, supra, our Supreme Court has denied,: 

writs of:error, and the-cases.being analogous. 

to the one,here presented, the decisions are 

-binding on this court, ,thus expressing the 

ruling that must control. Therefore;~.- 

moneys paid by the United States ~.Povernment 
Hon. Fred C. Brigman, Jr., page 5 (v-1436) 2x3 

for the safe-keeping and subsistence of 

federal prisoners under contract with the 

sheriff are accountable fees of office." 

-(Emphasis added.) 

Passing to question No. 4, the rules stated 

in answer'to-your other questions are applicable and 

the contractor who provides the food for prisoners is 

entitled to the flat dally rate agreed upon. The surplus remaining after payment of this contract price 

is to be paid to the county under the holding in Hood 

0, 

v. State, supra, quoted above. Att'y Gen. Op. V-m d/ 

lTmr 

c- 

/ 

suMMARY 

By virtue,of the nepotism laws (Articles 432 and 435, V.P.C.), a sheriff would 

ordinarily be prohibited from employing his 

wife as a cook for prisoners in the county 

jali. However, a sheriff's wife employed 

as a cook in the county jail two years prior 

to the appointment of the sheriff may continue in such employment by virtue of House 

;i1;25780, Acts 51st Leg., R.S. 1949, ch. 126, 

. . She may be compensated at a flat 

dally rate or otherwise, and this compensation Is an operational expense of jail maintenance. The sheriff, since he is on a salary basis, is entitled only to actual and 

necessary expenses in the maintenance and 

~~~~~i~~d~~-~,~~~~~~~~~~'y Gen. Ops. .V-1232 

A county is entitled to receive the entire amount paid for the feeding and safeguarding of federal prisoners. -Hood v. State, 

73 S.W.2d 611 (Tex. Civ. App. 1934, error ref.). 

Yours very truly, 

KT~~ED: PRICE DANIEL 

Attorney General 

J. C. Davis, Jr. 

County Affairs Division 

:_, 

E- Jacobson 

Reviewing Assistant 

Charles D. Mathews 

BY-~ 

Burnell Waldrep 

Assistant 

+.. .J First Assistant