THE A~ORSEY GESERAL OFTEXAS OROVER SELLER8 Ausns 11.mm
A~ORNEY GESEHAL
HonorableI. 8. Hand CriminalDintriotAttorney Weatherford,Tena
Dear Sir:
opinionNo. 0-7600
Rer Under the given faatr, ce,r, the Sheriffof Parker Caun+q legally live in the living quartera in the aounty jail, providedfor the jailer of the aounty,reoei~ing thereby free rent, utilitierand groceries?
Your letter of recent date requestingan opinion from this departmenton the above aubjeotmatter is a8 follows;
"I have your opinionlo, O-5297 and related opinionattaohedthereto regardingthe salary of the sheriffof Tarker County,Texas.
Va hare a questionhere in .ParkerCounty,Texas, oonoerningthe sheriffs3 compensation,which I wish to sutanit to you. The sheriff-electhas informedth,commissioners~ court that he desires permissionto move him~,e~'and family into the living quartersat the county jail and ti,live there and performthe dutios a8 jailor,or if this is objectionable,he statesthat he will merely live there and have a regular jailor. The: oomissioners~ court paya for all expenses of the jail and the jailor living there, includinggroceries, utili- ties, etc. I beg to be advisedas to whether in your opinionthe iberiff can legallylive in the living quartersprovidedfor the gailor of the,oounty,reoeivingthereby free rent, utilities,and g00erie.9.
*It would appear to me under your ~OpiniOn as ret out above that this oould not be legallydone unless the oommisaionera'oourt should mter an order increasingthe oompensationof the sheriffa8 provided in Artiole 3891, Bettingthe amount of the increaseat an equivalent of the value of the rent and other items suppliedthe sheriffthrough his residenceat the jail. &XI. I. B. Rand - Page 2- O-7500
%a this is questionwhich preaentaa somewhatdilicateproblemin our offioialfamily, I would appreciateyour opinionaa to whether the sheriffcan legallytake up his residencewith his family at the jail, and of so, under what conditions.'
Article 5116, V. A. C. S., providea:
"Eaoh sheriffis tha keeper of the jail of his oomty. & shall safelykeep thereinall prisonerscommittedthereto by lawful authority,subjectto the order of the proper court,and shall be rsaponaiblefor the safe keeping of such prisoners. The sheriff may appointa ,isilerto take charge of the jail, and supplythe wants of those thereinconfined;but in all cases the sheriff-- shall exercisea supervisionand controlover the ;lail." - (Underscoring ours)
The word "may" is usuallyonly permissiveor disorationary, while the word "shall"is of mandatoryeffect. See: Xorda and Pheraes,Vol. 26, pp. 760-770.
It will be noted that Article 5116 places a mandatoryduty on the sheriff to exeroiaesupervisionand controlover the jail in his county and leaves to his discretionwhethera jaileris to be appointed. It is therefore the opinionof this departmentthat the sheriffof Parker Countysnd his family,ay legallylive in tho living quartersin the county jail if the aheraf 3 believesthat in so doing he can best carry out the duties prescribedin Artiole 5116.
It will be noted, however,that Artiole 5116 does not authorizea county to pay the utilities,groceriesor other living expensesof the sheriff and his family. Nor have wa been able to find any statuteauthorizin~g the same. Therefore,it is our furtheropinionthat the Ce~iaaionara* Court is not authorizedto allow the sheriffor hia family their living expensessuoh a you have outlinedin your request. Yours very truly
APPROVED DEC. 21, 1946 ,ATTORNEYGENERALOF