                                              GENERAL

                         AUSTIN.   TEXAS       78711

                            Deoember 13,     1965


Honorable     Adolph F. Spltta        Opinion No. C-567
County Attorney
Kendall County                        Re:     Whether the sheriff    of Ken-
Boerhe,     Texas                             da11 County has t,he exclu-
                                              sive right of furnishing
                                              me+    to his prisoners   and
Dear Xr. Spitta:                              related questions.
            You have reoently requested         awopinion    from this   of-
tlO0,     your inquiry being as follows:
                “The $heriff   of Ken&all County prepares,
            with the arslstance     of his wife, me&I8 for
            the prisoners    in his jail.   The County repBIt&
            burses the Sheriff     the sum of 75+! per meal’,
            so furnished upon the Sheriff $lvlng a sworn
            aooount at the end of each month. The res-
            taurants and o&em, in thin qrea, have pro-
            tested suoh aotlon, malntalpS.xg that the
            Sheriff  rhould take bids, or at any rate give
            eaoh buelnerr a pro Fata share of Surnlshing
            the meal6 to said prisoners.
               "Your opinion    Is respeotfully        reqF*sted
            oonoernlng   the following   points:
               “a.  Does the Sheriff         of Kendall Coianty
            have the exclusive right         of furnishing meals
            to his prlaoners?
                “b.    Ii the Sber2ff of Kendall County etn-
            ploya his wife to prepare raid meals aoea that
            ootutitute    a violation of the Texas Wepotien
            La*?
                “0. Doee the Sheriff of Kendall COuntf
            have to make an aoourate report  ha to the oost
            of the meals prepared by his wife, or is It
            merely necessary for him to report the number
            of meals to be reimbursed in the amount of 754
            pcrerp,   +r, agreed by the COnaPi88lOne~‘E



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Honorable   Adolph   F.   Spltta,   page 2 (C-567)


             “a. Is It necessary for the wlfe of the
         Sheriff of Kendall County to have a health    "
         card by virtue of being the supplier and pre-
         parer of said meals of prisoners?"
          In answer to your first     question,   you am, advised that.
the Sheriff of Kendall County has the exoluslve          right of oper-
ating the jail kitchen and furnishing meals to prisoners.
Wlohlta County,vt Vanoe, 217 S.W.2d 702 (Te~.ci~.App.,          error
   r          1949) . Att orney (tenercil’q Op*nlon Ho. v-1232     (1951).
~liem&e~herlff'mlght        legltlmately    oontr&ict with cafes te
furnish meals to prisoners      properly ‘aooounting for expendl-
tures to the Commissioners Court, (Attorney Qeneral's Opinion.
Wo. V-1232, supra), he Is under no duty or obligation          to con-
tract with any cafe to furnlsh'meals        or to take bids from the.~
cafes If he decides to use'thelr       servloes   In feeding those ln-
carcerated   In the Kendall    County jail.
         As lndloated,      the answer to your first   question   Is In
the afflnnatlve.
          With regard to your remaining questions,      Seotion 61 of
Article   16 of the Constltutlon    of the State of Texas has made
It mandatory since 1949 that all sheriffs        be compensated on a
salary basis.    'It has been uniformly held that where a sher-
iff la oompensated on a salary basis that the Commlsnloners
Court may only allow the sheriff       the actual expenses lnourred
by him in feeding prisoners      In his oustody and oannot allow       '~.
the sheriff   any speolflc  sum for the boarding of prisoners.      At-
torney General's Opinion No. V-1232, aupra.         Accordingly, the.,
arrangement between the sheriff      and the Kendall County Commis-
sioners Court, whereby the sheriff       1s reimbursed the sum of
~$#1~~ meal for each prisoner fed, would be in contravention
        .
         With regard to your second question,   although the aher-
lff 1s authorized to recover from the Commlssloners Court the
aotual expenses lnourred In the feeding of prlsoners,     any fee
or any oompenaatlon paid to his wife for,the preparation of
euch meals would not be allowable because her employment would
be a violation   of the Nepotism laws of the State of Texas
whloh forbid an offloer   of a county to employ any person re-.
lated to him within the second degree of affinity.      This of-
floe,  In Opinion No. V-359 (1947) held as follows:
            "The sheriff       1s an offloer of the ooun-
         ty and his wife       Is related to him 'within


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    Honorable   Adolph F. Spltta,     Page    3 (C-567)



            the seoand degree by afflnlty.1        ,See At-
            torney QeneralVe Oplnlons NOB. O-31 and
            o-4973.    It 1s therefore    our opinion that
            the sheriff    ie prohibited   by the plain
            provisions   of Article    432, V.P.C., from
                        his rife an a cook for such
            $!#%a          ft is our further opinion
            that the oounty z&rUt’or. le ‘not author-
            ized to approve for payment any claim of
            the sherlff~e    wife for such services.”
             In anewer to your third queetlon,    you ati referret   ~to
    0~ a3 .souselons above.  The aherlff   la only entitled   to re-
    cover the actual expenses’ for feeding prleonera In hla ouatody
    end oare and he muet accurately   report all euoh expendlturer
    in order to receive such reimbursement.     Any compensatloq paid
    to his wife would not be properly allowable ae an expense of
    the feeding of the Inmates of the jail.
            ,,The dlsousslone  oonoernlng your flrst,three     questions
    make an anewer to the fourth que8tlon,      “Should the wife of the
    sheriff  have a health oard,” unnecessary.      However, we do not-,-
    mean to say that a wife oannot assist the eheriff       %ti the prep-
    aration and serving of ,meala, but there a’an be no oompeneatlon
    to her for any labor bhe::performa.     If she .-does render yo$un-
    tary and gratis eervloee in the feeding of prisoners,        we are
    of the opinion that it would not be neoessary that nho have a
    health aard.     There is no universal- requirement under the laws
    of.the  State of Texaa that food handlers have a sanitary h,ealth
    card; rather,    Section 6 of Article  7058, Vernontw Penal Code
    of Texas, confer8 on oltles    the power to adopt ordfnances whioh
    require the obtaining of a health aard a8 a prerequllslte        to
    the handling of foods.     However, even if the munlolpallty      in
    which your jail la’located    has such an ordlnanoe,    it Is our
    view that the county jail does not come within the definition
    of a pub110 eating plaoe 81) defined by Section 1 of Artlole
    7054.
                                    SUMMARY

                .The Sheriff  of Kendall County haa the
            exoluslve   right to furnish meals to hla
            prisonera.     mployment of the sherlffls
            wife to prepare the food for prlaonerz
            would be In violation    of the Nepotism Laws.
            di sheriff  Is only entitl&a to recover the
            aotual expenbes for feeding prisoners     in
            his custody and care and he muet accurately


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     Honorable     Adolph F. Spltta,   Page 4 (C-567)


                 report all suoh expenditures   in order to
                 receive reimbursement.    It Is unnecessary
                 for the person who prepares meals for the
                 prisoners  to have a health Oard.
                                        Very truly      yours,




     QJP/at/br
     APPFtOVEDr
     OPINION COM4I!L"FEE
     W. V. Qeppert, Chairman
     Edifard R. mffett
     Sam L. Kelley
     Tom Routt
     W. 0. Shultz
     APPROVEDFOR THE ATTORWEX
                            QE%l?ZRAt
     By: T. B. Wright




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