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 CountyA,ttorney Third Floor, Courthouse Georgetown,Texas 78626 OpinionNo. JM-415
Re: Legality of a sheriffhiring. for a paid countyposition as an unguarded maintenance supervisor outside the jail, a prisoner sentenced to the Texas Department of Correctionsbut not transferredthere
Dear Mr. Stubblefi,eld:
Your letter+rlef requestingan opinion from this office advises (in somewhatdiffmeut sequence):

On Au8ust 12, 1982, a prisoner who had been placed cn probation for drivingwhile 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 amountedto twentymonths. However, thismay have been mf:ivated by an understanding on the sheriff's part that the prisoner's actual time behindbarswould be verybrief.
. . . The Imisoner in this case is conceded by all parties t:obe an unusually skilledmechanic. In September of 1983, the sheriff asked the comnissioners court to create a new position of maintenance superrrisor, citing the financialbenefits to the countyby avoiding commercial shop charges to repair andmaintain countyvehicles. 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. 1895Donorable Bill Stubblefield- Page 2 (JM-415)

released, but i,:was essential to fill the new position. The s,heriffhad three choices: he could leave the job open (andpay 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 sheriffhired rhoprisoner for thatposition.
It should be <emphasizedthat the prisoner in the present case was not engaged in manual labor as an incident of his confinement; he was performing skilled laborbecause 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 considerableam#ountof freedom of movement. In part, thiswas 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 daysper week.
. . . You characterizethe 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 -- assumptionrthat 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 thathe shouldnot be sent to the Texas Departm,nltof 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 conweittedto serve sentences in his county jail, and

p. 1896EonorableBill Stubblefield- Page 3 (JM-415)

that only the director of the Texas Department of Corrections could make a finaldetermination ofwhat "good time" creditsa prisonerheld in a county jail prior to his transfer to the Texas Department of Correctionsmight 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'sargument in this case andpermit theSmith 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. Thiswe shallnot do.
See 542 S.W.2d 127,at 131; seealsoV.T.C.S. art. 6181-1, 53(c). - After reciting prov:Lsionsof the judgment that ordered the prisoner to be deliveredby the sheriff "immediately to the director of correctionsof the Tex2.s Department of Corrections,"id. (emphasis omitted), -

the court further stated:
In view of this felony judgment and sentence, appellantmust te committed to the Texas Department of Corrections to serve the remainder of his sentence, not 1:~' the Smith County Jail.
. . . Upon issuanceof themandate of affirmanceof 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 sentencedto 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 prisonerwas not awaiting the outcome of an appeal, andhe had been sentencednot to jail, and not to a work-release-program,but to prison. It was therefore tne duty of the sheriff to immediatelytake the stepsnecessary to comeit the prisoner to the Texas Department of Corrections. See C.C.P.art. 42.09;V.T.C.S. 6166r (transportationof prisoners). The sheriffhad no authoritywhatever to permit theprisoner such "freedom ofmovement" 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.tugdefendants released on bail and those sentenced to a term of more than ten 

### y=arsI, a defendz.nt shallbe delivered to jail or to theDepartment of Correctionswhen his sentence to imprisonment jz pronounced, or his sentence to death is announced,by the court.
. . . (Emphasis added). The Code pertinent

A sheriff is authorizedby 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 consistentwith proper disc,Lpline, but the privileges awarded cannot contravene legislative commands. See Ex parte Walker, supra. See also Gardnerv. State,=a -,; AttomFGeneral OpinionMN-497 (1982r Article 2.18 of the Code of Criminal Procedure states that it is a violation on thepart of a sheriff to permit a defendant, committed to jailby warrant froma court, to remainout 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:ourtto sentence a defendant to serve his sentence at home." Nor does it authorize disobedience to judicial mandates. See State ex relevancev. Hatten,supra, at 508 S.W.2d 628; Bx parte Wyatt, 16 S.W. 331 (Tax. Ct. App. 1891); Attorney General OpinionH-603 (1975).
In Ex parteWyatt, =~a, the court said: The sheriff has no right, no matter what his motives,whether of humanity or not, to commute or alter
. . . [aprisoner's]punishment,and any act of his doing so i,sa violation of his duty, and absolutelyvoid. 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 GeneralOpinionM-918 (1971). Cf. ExparteMorgan, 262 S.W.2d 728 (Tex.GrimApp. 1953). -
With respect to the employment of prisoners -- aside from considerations of theirplace of employment or the supervisionaccorded them -- it shouldbe noted t:hatthere is no federallyprotected 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. 1898HonorableBill Stubblefieli- Page 5 m-4151

no constitutionalright ir.prisoners to be paid for their labor; any compensationpermitted is by grace of the state. Sigler v. Lowrie, 404 F.2d 659 (8thMr. 196!%:I, cert.denied, 395U.S. 940 (1969).
The only provisions':inour 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 serviceswhile imprisoned in the state penetentiaryor 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. HendrickV. Marshall, 282 S.W. 289 Tex. Civ. App. - Dallas 1926,

But they are n3.tfree to enter a master/servant contract for the sale of their labx, time or services -- the disposition of which is lodgedby 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., specifiesthat allprisoners 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,esthat "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,fthe sheriff's personal funds. In our opinion, it is also 1egaX.y impermissible for a sheriff to place on the countypayroll as ama:.ntenance supervisora prisoner sentencedto the Texas Department of Corrections. Cf. V.T.C.S. art. 3902. If the prisonerhere supervisedotherprisonersas may havebeen the casewe understand), article 6184k-1, V.T.C.S., was also violated. That statutereads:

Section 1. An inmate in the custody of the Texas Department of Corrections or in any jail in this statemay not act in a supervisoryor administrativecapacity. over other inmates.
Sec. 2. An inmate in the custody of the Texas Department of Corrections or in any jail in this statemay not adainister disciplinaryaction over another Inmate.

. p. 1899BonorableBill Stubblefieli- Page 6 (JM-415)

S 'J M M A R P -- A prisoner se!ltenced to theTexasDepartment 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 trulyyo 

# J

AL JIM MATTOX Attorney General of Texas
JACKHIGHTOWER FirstAssistantAttorney Gmrneral
MARY KELLER ExecutiveAssistantAttorney General
ROBERT GRAY SpecialAssistantAttorney General
RICK GILPIN Chairmen,Opinion Committe~z Preparedby BruceYoungbloc,d AssistantAttorney General

p. 1900