PRICE DASIEL FAGAN DICKRON
ATTORNEY
GENEHAL August 25, 1947 ,,PST
**81sTAsz
Hon. Bruce L. Parker Oplnlon No. v-359
County Attorney
Gray County Re: Several questions re-
Pampa, Texas latlve to the authority
of the Coauniseloners
Court and the sheriff
respecting the feeding
of prisoners in the
oounty jail.
Dear Sir:
Your request for an opinion from this oifloe
on the above subject matter is in part as follows:
"hrrlng the montha oi March and April
of this year the Sheriff of this County em-
ployed his wife to prepare the food for the
prisoners at the county jail and a state-
ment for her services in the amount of $60.-
00 per month has been placed in the hands of
the County Auditor for approval. The Auditor
has asked me for my opinion as to whether or
not this bill oan be allowed and paid out of
county funds. I would like to have your opln-
ion as to the validity of this claim and wheth-
er or not it can be paid out of county funds
as other bills are paid.
'Your attention is directed to Art. 1041,
Code of Criminal Procedure, as amended, Ch.
\rO4, Acts of the 50th Legislature, 1947, at
Page 166, authorizing the employment of matrons
and guards by the sheriff. Will you also ad-
vise me the maximum that can be allowed the
sheriff for the jail cook or matron.
'Your attention is further directed to Art,
I040 to 1043.
"I would like further to have your opin-
ion on the following question pertaining to the
care of prisoners: Can the Commissioners' Court
~contraot with the sheriff to pay the sheriff an
i
Hon. B~r?crL. Parker - Page 2 (v-359)
..Ic)
.A&
allowance of not less than .40# per day and
not more than .75$ per day for the support
and maintenance of each prisoner. In other
words are the provisions Of Section 2 of
Art. 1040 applicable to this County at the
present time.
"Your attention is further directed to
the provisions of Art. 3899, R.C.S. of Texas,
1925, which authorizes the payment by the
Commlssloners' Court of the County of the
expenses of the various county officials who
are paid on a salary basis.
"I would like to knou further whether
or not the Commissioners1 Court or the Sher-
iff of this County can purahase the meals
for the prisoners at a cafe with the charges
therefor to be paid by the,,Commlssloners'
court out of county funds.
Article 432, V. p. C., provides:
"No offl;e;i;E this State or any offi-
cer of any dl t county, olty, precinct,
school district, or'other munloipal sub-
division of this State, or any officer or
member of any State, district, county, city,
school district or other municipal board, or
judge of any court, created by or under au-
thority of any general or special law of this
State, or any member of the Legislature, shall
or confirm the appow
%$%~<~~~~c~~~osltlon, clerkship, em-
Pym y of any person related within
the second degre; by affinity or within the
third degree by consanguinity to the person so
appointing or so voting, or to atiyother mem-
ber of any such board, the Legislature, or
court of which such person so appointing or
voting may be a member, when the salary, fees,
or compensation of such appointee Is to be
paid for, directly or indirectly, out of or
from public funds or fees of office of any
kind or character *hatsoever."
. . . ~-..--~ .._.-.___
.
hon. PrUCe L. Parker - Page 3 :v-3593
Article 435, V.P.C., provides:
'No officer or other person included
within the third preceding article shall
approve any account or draw or authorize
the drawing of any warrant or order to pay
eny salary, fee or compensation of such
ineligible officer of:person, knowing him
to be so inellglble.
The sheriff Is an officer of the county snd
his wife Is releted to him "within the second degree by
affFnity." See Attcrney Qenerel's Opinions Nos. O-31
and D-4973. It is therefore our opinion thet the sher-
iff is prohibited by the pIein provisions of Article
432, V.P.C.. from employing his wife as a cook for such
pr1suners. It is cur further cpinlon that the county
auditor Is not authorized to approve for payment eny
clelm of the sheriff's wife fcr such services.
Article 6871, V.C.3., eutnorlzes the employ-
ment of a jail matron. Article 1041, V.C.C.P., as a-
mended by H. B. 540, Acts of the 50th Leg., p. 166,
Vernon's Texas Session Law Service, provides for a max-
imum compensation for each matron necessarily e loyed
for the safekeeping of prisoner8 in CoUntle8 of7 0,900
or less inivlblt8nt8of Two Dollars and Fifty Cents
($2.50) eech day. Cocpor v. Johnson County, 212 3.W.
528; State v. Carries,I.05S.W. (2d) 337.
It was held In Attorney General's Opinion No.
O-4377 that the sherlfl had the authority to employ a
cook-maid to cook food f’m and serve food to the prison-
ers end to d.2hou;ycholdwork necessary f2r the malnten-
ancc of the prisoners. It was further held in nnld
opinion that the salary paid to such cock-maid should
be deducted as an expense against the sheriff!3 allow-
a.nce. We know of no statute fixing a maximum that may
be paid a cook for the prisoners. Therefore, it is our
opinion that the sheriff may employ a cook and pay the
cook a salary A's long as the salary is a reasonsble one.
Such salary is considered as 8 part of the cost Of feed-
ing the prisoners. Sta~tev. Carnes, supra.
We quote the following from Attorney General's
Opinion No. O-1242:
'In answer to your accond question, you
are advised thnt ever since January 1, 1936,
:(;a$ Hon. Bruce L. Psrker - ?sge 4 (V-359)
the effective date of Chapter 465, Acts of
the 3econd Cplled Session of the Forty-fourth
Legislature, generally known as the 'Officers
Salary Act', thLs office has consistently held
that where a sheriff is compensated on a sal-
c.ry b~.sis,the Commissioners Court Is unauthor-
ized to pay any fee whatsoever for services
performed and cannot 8.110~him any specified
sum for the boarding of prisoners, but only
for actual expenses Incurred ;y him in feeding
the prisoners in his custody.
The above holding was followed in Attorney Qen-
eral's Opinion No. G-2379. In view of the Poregolng, your
third question is answered in the negative, and you are
advised that where the sheriff ia compensated on a sa~lary
basis, the Commissioners' Court cannot allov him e.ny spe-
cefic sum for the boarding of prisoners, but only for ac-
tual expenses incurred by him in feeding the prisoners In
his custody.
This office has repeatedly held that the sher-
iff has the authority and is authorized by statute to feed
and purchase all supplies necessary for the maintenance of
prisoners snd that such authority is not conferred upon
the Commissioners' Court, either directly or indirectly.
Attorney General's Opinions Nos. O-329, o-1228 and O-4377.
Since it la the duty of the sheriff to feed the
prisoners, it 1s our opinion that he is authorized to pur-
chase their meals from a cafe if he deems that it is the
best method to be used in feeding the prisoners. The Com-
missioners* Court is authorized to pay the sheriff for
actual expenses incurred by him in fsedlng the prisoners,.
1. .Thc sheriff is prohiblted~from em-
ploying his wife as a cook for prisoners In
the county jail. Arts. 432 and 435, V.P.C.
2. The maximum compensation for each
mstron necessarily employed for the safe-
keeping of prisoners in counties of 40,000
or less inhabitents is $2.50 each day. Art.
1041, V.C.C.P., as amended by H. B. 540,
Act3 of the 50th Leg., p. 166, Vernon's
Texas Session Law Service.
-. .
.
Hon. Bruce L. Parker - Pp.&e 5 (V-359)
3. The Commissioners' Court is not
authorized to allow the sheriff any ~apeaFii0
sum for the boarding of prisoners but only
the ectual expenses incurred by him in feed-
iiq the prisoners in hi8 custody, whether
at a cafe or otherwise.
Very truly yours
ATTORNEY ffENElRAL
OF TEXAS
John Reeves
JR:djm
APPROVED: