**AUSTIN 1%** TEXAS

Hon. Fred C. Brigman, Jr. County Attorney Uvalde County Uvalde. Texas OpinionNo. V-1436

Re.: Legality of compensating the sheriff'swife 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 payinghim $.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 spaythe 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 deputywas 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 jailhas
never been authorized by the Commissioners'Hon. Fred C. Brigman, Jr., page 2 (v-1436)

Court. The new sheriffhas also, at various times after April 1, 1951, kept prisoners for the Federal Governmentreceiving the sum of $1.50 per prisoner per day for feeding and safe-guarding of prisoners. Apparently,no Federal prisonerswere received under the former sheriff."

You have presented for determinationthe following questions:

"QuestionNo. 1. Under the above fact situation, is the new sheriff'swife entitled to retain the profit from feeding prisoners?
"QuestionNo. 2. Under the above fact situation,was the former sheriff entitled to pay the profit from feeding prisoners to his deputy'swife?
vQues aooortionm

tion No. 3. Should there be-any

~~. &~ ~~.----~~ient

of the sum paid by the Federal Governmentbetween safe-guardingand feeding of prisoners.? "QuestionNo. 4. In the event that auestionNo. 1 is answered in the affirmative, is the new sheriff'swife 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 OpinionV-1232 (~1?51), it was held that

"TheCommissioner's court is not authorized to allow the sheriff any specific
sum for the boarding of prisoners,but only the actual expenses incurredby him in feeding the prisoners in his custody,whether by a contractwith an individualat a flat daily rate per prisoner, or otherwise."- -

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

A sheriff .wouldordinarily be,prohibited from employinghis 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 prohibitionwith regard to any person who has been continuouslyemployed In any office or employment for two'years prior to the election or appointment of the officer appointing such person to office or employment. -InAttorney General's OpinionV-1142 (1951) it was stated:

!'A personwho was employed by the county at the time his ~brotherfirst~tookoffice as County Commissioner on January 1, 1951,land had been continuously so employed for a period of two years immediatelyprior ther~eto, may be retained~asa c,ounty employeewithout vi- 'elating the nepotism statute (Article 432, V.P.C., ch. as amendeSj, Acts 51st Leg., R.S. 1949, 126,. p. 227).

Inasmuchasyou state that the wife of the sheriffhas been employed two years .priorto 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'swife ~mayact in the capacity of a cook forthe jail. It is to be noted that the feeding of '.I prisonerscomprises' a part of the necessary functions .>J~ ;I,' involvedin the operation of the jail, and need not apr~ : necessarilybe subject to authotiization by the com- .;.: missioners'court since this employment is discretion- -arywith 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 concernedhere widthan office but only a ~oontract

of employmentwhich is an incidentalpart 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 firstquestion, the sheriff, in the maintenanceand operationof the -jail,Is entitled to his actual and necessaryexpenses. Since it would appear that the contractbetween the former sheriff and his deputy's wifewas for the.feeding of prisoners at a flat daily rate~permeal there Is no question of the payment of a Profitand hence a proper basls ~forsuch payment.. 

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

There is no statutorybasis for the payment of $.15 perday fee for prisonersand ~the$.75 per ~. day fee for feeding,as provided in Article 1040, V.C.C.P., in salary counties In the populationbracket 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 expensesnecessary 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 feedingand safeguarding federal prisoners.. In Hood v. State, 73 S.W.2d 611, 613 (Tex. Civ. App. 1934, error ref.) the court stated;

"Whilearticle 1040 in general terms provides a remunerationoPthe sheriff,within prescribed limits, for each prisoner 'confined in jail or under guard,'.yet it further deals with,'expendituresand the.amountallowed by the commissionerscourt,'.and in the, succeeding articlesprovision ismade only for such allowance to be paid by the commissioners' court for the subsistenceand,~care of county prisoners. :. "Thedoubt arises as to the construe- ~.:: tion-of ,article1040~ofthe Criminal Procedure: Code, as to whether the~remunerationforthe, :: subsistenceand safe-keeping of federal, prls-.~ oners, allowed and.paidunder contract-with the United States government; should be read .intothe provision of the statute~soas to

.. make such payment accountable feesof office, and we also express.thedoubt 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.Binfordv. Harris County, supra, our SupremeCourt has denied,: writs of:error,and the-cases.beinganalogous. to the one,herepresented, the decisions are -bindingon this court, ,thusexpressing the ruling that must control. Therefore;~.- moneys paid by the United States~.PovernmentHon. Fred C. Brigman, Jr., page 5 (v-1436) 

## 2x3

for the safe-keeping and subsistence of federal prisonersunder contractwith the sheriff are accountable fees of office." -(Emphasisadded.) Passing to questionNo. 4, the rules stated in answer'to-your other questions are applicable and the contractorwho 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 ordinarilybe prohibited from employinghis wife as a cook for prisoners in the county jali. However, a sheriff'swife 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 compensatedat 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. CountyAffairs Division :_, E- Jacobson ReviewingAssistant
CharlesD. Mathews BY-~ Burnell Waldrep Assistant

+.. .J FirstAssistant