* District Judge of the Southern District of Texas, sitting

by designation.

** Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-21012

JOSEPH FREDERICK MERIWETHER,

Plaintiff-Appellant,

versus

GUY WILLIAMS, Sheriff;

MONTGOMERY COUNTY TEXAS,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

CA-H-95-2609)

October 10, 1996

Before KING and HIGGINBOTHAM, Circuit Judges, and KAZEN *

, District

Judge.

PER CURIAM ** :

Joseph Frederick Meriwether has sued Montgomery County, Texas,

and its sheriff in his official capacity, claiming that he was not

releas ed when his time had been served. The County moved to

dismiss the complaint under Rule 12(b)(6), Federal Rules of CivilProcedure. The County also filed affidavits bearing on the facts

of the case and the procedures for transferring prisoners from the

county jail to the Texas Department of Corrections. The County

urged that the complaint be dismissed because Meriwether, although

housed in the Montgomery County Jail, was under Texas l aw a TDC

prisoner. The district court accepted this assertion and dismissed

the complaint, observing that constitutional claims could not be

supported by mere negligence. While that proposition is true, it

became clear at oral argument that neither side is claiming

negligence in this case. S ee Hare v. City of Corinth

, 74 F.3d 633

(5th Cir. 1996) (en banc).

Meriwether points to language in the state court judgment that

he was remanded to jail “until the Sheriff can obey the direction

of this sentence.” He maintains that this language placed a legal

duty on the sheriff to determine whether Mer iwether had already

completed serving his sentence. He argues that the sheriff could

have obtained the necessary information from TDC by a simple phone

c all. Indeed, he maintains that TDC would refuse to accept a

prisoner such as Meriwether who had already served his full

sentence.

Montgomery County respo nds by pointing to language in the

judgment ordering the sheriff to deliver Meriwether “immediately to

the Director of the Texas Department of Criminal Justice,

Institutional Division...” The County insists that it had no

option under the law but to hold Meriwether for delivery to TDCuntil told otherwise, either by TDC or by a court order. The

County also insists that it could not have obtained the information

about Meriwether’s service time from a telephone call but could

only wait for the “pen pack” to arrive from TDC. While conceding

that this procedure could cause a person like Meriwether to be

confined beyond his proper release date, the County contends that

this result is the responsibility of the State of Texas and not the

County.

On remand the parties should develop on the record for

purposes of summary judgment or trial, as appropriate: (1) the

practices and rules for transferrin g prisoners; (2) the specific

facts surrounding the detention of Meriwe ther and his potential

release; and (3) the parties should then brief fully for the

district co urt the applicable law, including the respective

obligations of the county jail and state prison.

In sho rt, the district court should decide by appropriate

procedures what the policy of Montgomery County was at the relevant

time and what caused the delay in releasing Meriwether. Finally,

the court must determine the legality of any County policy found to

have caused the delayed release.

In sum, this ca se needs further development at the trial

court.

REVERSED and REMANDED.