JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin, TX. 76711.2546 

5121475-2501 

Telex 910/674.1367 

Telecopier 51214754266 

714 Jackson, Suite 700 

Dallas, TX. 75202.4506 

214l742-6944 

4624 Alberta Ave., Suite 160 

El Paso. TX. 79905.2793 

9151533.3464 

,001 rexas, suite 700 

Houston, TX. 77002.3111 

713/223-5666 

SW Broadway, Suite 312 

Lubbock, TX. 79401.3479 

0081747.5230 

4309 N. Tenth, Suite B 

McAllen, TX. 76501-1665 

512/662-4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 76205-2797 

512/2254191 

An Equal OppOrtUnityf 

Affirmative Action Employer 

The Attorney General of Texas 

:)ecember 31, 1985 

Honorable Bill Stcbblefield 

Williamson County A,ttorney 

Third Floor, Courthouse 

Georgetown, Texas 78626 

Opinion No. JM-415 

Re: Legality of a sheriff hiring. 

for a paid county position as an unguarded maintenance supervisor outside the jail, a prisoner sentenced 

to the Texas Department of Corrections but not transferred there 

Dear Mr. Stubblefi,eld: 

Your letter+rlef requesting an opinion from this office advises 

(in somewhat diffmeut sequence): 

On Au8ust 12, 1982, a prisoner who had been 

placed cn probation for driving while intoxicated, 

subsequent offense, had that probation revoked. 

He was sentenced to five years in the Texas 

Department of Corrections. The Sheriff retained 

the primner in the Williamson County Jail, where 

he became a trusty. . . . 

In the present case, the delay in transporting 

amounted to twenty months. However, this may have 

been mf:ivated by an understanding on the 

sheriff's part that the prisoner's actual time 

behind bars would be very brief. . . . 

The Imisoner in this case is conceded by all 

parties t:o be an unusually skilled mechanic. In 

September of 1983, the sheriff asked the comnissioners court to create a new position of maintenance superrrisor, citing the financial benefits 

to the county by avoiding commercial shop charges 

to repair and maintain county vehicles. The court 

concurred largely on the basis of their appreciation of the talents of the sheriff's proposed 

employee -- the prisoner in question, who was 

expected to be released $rlor to the effective 

date of the position in January of 1984. When 

January csme. the prisoner had not yet been 

p. 1895 
Donorable Bill Stubblefield - Page 2 (JM-415) 

released, but i,: was essential to fill the new 

position. The s,heriff had three choices: he 

could leave the job open (and pay shop charges), 

he could hire a less-qualified applicant, or he 

could hire the prisoner (who he expected to be 

paroled very shortly). . . . He had been advised 

by the district attorney who had convicted the 

prisoner that c: would not be unlawful to hire 

him. . . . In September of 1983, a new position 

of Maintenance Supervisor was created in the 

sheriff's depart,nlant. In January of 1984, the 

sheriff hired rho prisoner for that position. 

It should be <emphasized that the prisoner in 

the present case was not engaged in manual labor 

as an incident of his confinement; he was performing skilled labor because he had been told he 

would be paid fo:: it. . . . 

There is no dispute that the prisoner in 

question was not held behind locked doors, or 

under armed guarll!, at all times. He was permitted 

a considerable am#ount of freedom of movement. In 

part, this was due to the nature of his duties as 

a maintenance supervisor. The prisoner was given 

additional privileges, including nights at home, 

on occasion; however, he was on call twenty-four 

hours per day, mren days per week. . . . 

You characterize the question to be answered as: "Whether a TDC 

prisoner temporarily housed in the county jail can be hired by the 

sheriff as a compensated employee." As your brief recognizes, the 

question reflects assumptions about the legal consequences of the 

stated facts -- assumptionr that require attention. 

In Gardner v. State, 542 S.W.2d 127 (Tex. Grim. App. 1976). a 

prisoner whose five-year I,robation was revoked and who was sentenced 

to the Texas Department of Corrections, claimed that he should not be 

sent to the Texas Departm,nlt of Corrections -- but, rather, that he 

was entitled to be dischac8ed -- because he had been In jail and in 

the continuous custody oE the sheriff of Smith County since the 

revocation. He argued that when his time credits for the sentence 

were computed, including consideratton for "good time" credit as a 

"state approved trusty," he had sufficient time credits for his 

iseaediate discharge. 

The Texas Court of Criminal Appeals held that a sheriff has 

authority ~to award comut:a.tlon time credits to only those persons 

convicted and conweitted to serve sentences in his county jail, and 

p. 1896 
Eonorable Bill Stubblefield - Page 3 (JM-415) 

that only the director of the Texas Department of Corrections could 

make a final determination of what "good time" credits a prisoner held 

in a county jail prior to his transfer to the Texas Department of 

Corrections might be awarded, and, then, only after the prisoner is 

committed to the Texas Department of Correctiznstitution. The 

court said: 

Were we to accede to appellant's argument in this 

case and permit the Smith County Sheriff to determine appellant's status as a 'state approved 

trusty' and allow appellant to discharge his 

felony sentence while in county jail, we would 

have effectively negated the Texas Department of 

Corrections jurisdiction to incarcerate convicted 

felons in this state. This we shall not do. 

See 542 S.W.2d 127, at 131; see also V.T.C.S. art. 6181-1, 53(c). - 

After reciting prov:Lsions of the judgment that ordered the 

prisoner to be delivered by the sheriff "immediately to the director 

of corrections of the Tex2.s Department of Corrections," id. (emphasis 

omitted), 

- 

the court further stated: 

In view of this felony judgment and sentence, 

appellant must te committed to the Texas Department of Corrections to serve the remainder of his 

sentence, not 1:~' the Smith County Jail. . . . 

Upon issuance of the mandate of affirmance of this 

conviction by this Court, the provisions of the 

trial court's sentence shall be carried out 

immediately. See State ex rel Vance v. Hatten, --, 

508 S.W.2d 625 ('Pex. Cr. App. 1974). (Emphasis 

added). 

The court in Gardner v. State, supra, noted that a 

sentenced to fewer than t&i years in prison and not released 

prisoner 

on bail, 

who is awaiting the outcome of an appeal, can choose to await the 

disposition of the appeal& either the county jail or in the Texas 

Department of Corrections. See C.C.P. art. 42.09, §5; Ex parte 

Rodriguez, 597 S.W.2d 771 (Texxrim. App. 1980). But the IHlliamson 

County prisoner was not awaiting the outcome of an appeal, and he had 

been sentenced not to jail, and not to a work-release-program, but to 

prison. It was therefore tne duty of the sheriff to immediately take 

the steps necessary to comeit the prisoner to the Texas Department of 

Corrections. See C.C.P. art. 42.09; V.T.C.S. 6166r (transportation of 

prisoners). 

The sheriff had no authority whatever to permit the prisoner such 

"freedom of movement" or "rtghts at home" - even though the prisoner 

p. 1897 
, 

Honorable Bill Stubblefield - Page 4 (JM-415) 

may have remained at such times in "constructive" custody. 

of Criminal Procedure, art:.cle 42.09, section 1 provides in 

part: 

Except as provided. in Sections 2 and 3 [detailing 

procedure regard.tug defendants released on bail 

and those sentenced to a term of more than ten 

y=ars I, a defendz.nt shall be delivered to jail or 

to the Department of Corrections when his sentence 

to imprisonment jz pronounced, or his sentence to 

death is announced, by the court. . . . (Emphasis 

added). 

The Code 

pertinent 

A sheriff is authorized by article 5118a, V.T.C.S., in return for 

good behavior, to reward certain prisoners with the relaxation of 

strict county jail rules and to extend to them social privileges 

consistent with proper disc,Lpline, but the privileges awarded cannot 

contravene legislative commands. See Ex parte Walker, supra. See 

also Gardner v. State, =a -,; AttomFGeneral Opinion MN-497 (1982r 

Article 2.18 of the Code of Criminal Procedure states that it is 

a violation on the part of a sheriff to permit a defendant, committed 

to jail by warrant from a court, to remain out of jail. As held In Ex 

parte Walker, 599 S.W.2d 332, at 334 (Tex. Grim. App. 1980), "[o]G 

law does not authorize a c:ourt to sentence a defendant to serve his 

sentence at home." Nor does it authorize disobedience to judicial 

mandates. See State ex relevance v. Hatten, supra, at 508 S.W.2d 628; 

Bx parte Wyatt, 16 S.W. 331 (Tax. Ct. App. 1891); Attorney General 

Opinion H-603 (1975). 

In Ex parte Wyatt, =~a, the court said: 

The sheriff has no right, no matter what his 

motives, whether of humanity or not, to commute or 

alter . . . [a prisoner's] punishment, and any act 

of his doing so i,s a violation of his duty, and 

absolutely void. 

Id. at 301. See also WilXams v. State, 274 S.W.2d 547 (Tex. Grim. -- 

G 1955); Dufek v. Harriz,n County, 289 S.W. 741 (Tex. Civ. App. - 

Texarkana 1926, no writ); Attorney General Opinion M-918 (1971). Cf. 

Ex parte Morgan, 262 S.W.2d 728 (Tex. Grim App. 1953). 

- 

With respect to the employment of prisoners -- aside from considerations of their place of employment or the supervision accorded 

them -- it should be noted t:hat there is no federally protected right 

of a state prisoner not to work while imprisoned after conviction, 

even if the conviction is being appealed. Leaky v. Estelle, 371 F. 

Supp. 951 (N.D. Tex. 1974), .- aff'd. 503 F.2d.1401 (1975). And there Is 

p. 1898 
Honorable Bill Stubblefieli - Page 5 m-4151 

no constitutional right ir. prisoners to be paid for their labor; any 

compensation permitted is by grace of the state. Sigler v. Lowrie, 

404 F.2d 659 (8th Mr. 196!%:I, cert. denied, 395 U.S. 940 (1969). 

The only provisions':in our law that contemplate the payment of 

wages for the labor of persons imprisoned are those establishing 

"work-release" programs. See V.T.C.S. art. 5118b; art. 6166x-3, 55. 

It is expressly provide$iTy section 4(b)(7) of article 5159d, 

V.T.C.S., that the Texas 14:inimum Wage Act of 1970 does not apply to 

"any person who performs any services while imprisoned in the state 

penetentiary or confined in a local jail." 

Convicted felons - even those sentenced to life imprisonment -- 

are not "civilly dead." 

nowrit). 

Davis v. Lanipg, 19 S.W. 846 (Tex. 1892). 

Cf. Hendrick V. Marshall, 282 S.W. 289 Tex. Civ. App. - Dallas 1926, 

But they are n3.t free to enter a master/servant contract 

for the sale of their labx, time or services -- the disposition of 

which is lodged by law in the state. The relationship of master and 

servant exists only where the master has the right to control the 

servant -- a right which a convicted prisoner cannot, sui juris, 

confer upon an employer. See 33 Tex. Jur. 3d, Employer and Employee 

§2 at 19. Article 6166a, lcT.C.S., specifies that all prisoners shall 

be worked within the prison walls and upon farms owned or leased by 

the state. Cf. V.T.C.S. xtt. 6203~; Attorney General Opinion V-233 

(1947). It further provit,es that "in no event shall the labor of a 

prisoner be sold to any contractor or lessee to work on farms. or 

elsewhere. . . ." Cf. V.T.C.S. art. 6166x (prison inmates); C.C.P. 

art. 43.10 (misdemeznts:l;, Attorney General Opinions JM-73 (1983; 

MW-497 (1982). 

Attorney General Opjnion WW-36 (1957) concluded that it is 

illegal for a sheriff to work prisoners outside a county jail on his 

private ranch operations, even if the labor is voluntary and the 

prisoner6 are paid out c,f the sheriff's personal funds. In our 

opinion, it is also 1egaX.y impermissible for a sheriff to place on 

the county payroll as a ma:.ntenance supervisor a prisoner sentenced to 

the Texas Department of Corrections. Cf. V.T.C.S. art. 3902. If the 

prisoner here supervised other prisonersas may have been the case we 

understand), article 6184k-1, V.T.C.S., was also violated. That 

statute reads: 

Section 1. An inmate in the custody of the 

Texas Department of Corrections or in any jail in 

this state may not act in a supervisory or administrative capacity. over other inmates. 

Sec. 2. An inmate in the custody of the Texas 

Department of Corrections or in any jail in this 

state may not adainister disciplinary action over 

another Inmate. 

. 

p. 1899 
Bonorable Bill Stubblefieli - Page 6 (JM-415) 

S 'J M M A R P -- 

A prisoner se!ltenced to the Texas Department of 

Corrections and awaiting transfer to its facility 

may .not be placed by the sheriff on the county 

payroll as a mak11:enance supervisor. 

Very truly yo J AL 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney Gmrneral 

MARY KELLER 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairmen, Opinion Committe~z 

Prepared by Bruce Youngbloc,d 

Assistant Attorney General 

p. 1900