                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                             No. 95-21012




JOSEPH FREDERICK MERIWETHER,
                                            Plaintiff-Appellant,


versus

GUY WILLIAMS, Sheriff;
MONTGOMERY COUNTY TEXAS,
                                            Defendants-Appellees.



           Appeal from the United States District Court
                For the Southern District of Texas
                           CA-H-95-2609)


                           October 10, 1996

Before KING and HIGGINBOTHAM, Circuit Judges, and KAZEN*, District
Judge.

PER CURIAM**:

     Joseph Frederick Meriwether has sued Montgomery County, Texas,

and its sheriff in his official capacity, claiming that he was not

released when his time had been served.         The County moved to

dismiss the complaint under Rule 12(b)(6), Federal Rules of Civil


     *
        District Judge of the Southern District of Texas, sitting
by designation.
     **
        Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Procedure.   The County also filed affidavits bearing on the facts

of the case and the procedures for transferring prisoners from the

county jail to the Texas Department of Corrections.                     The County

urged that the complaint be dismissed because Meriwether, although

housed in the Montgomery County Jail, was under Texas law a TDC

prisoner. The district court accepted this assertion and dismissed

the complaint, observing that constitutional claims could not be

supported by mere negligence.          While that proposition is true, it

became clear     at    oral   argument   that      neither    side   is   claiming

negligence in this case.        See Hare v. City of Corinth, 74 F.3d 633

(5th Cir. 1996) (en banc).

      Meriwether points to language in the state court judgment that

he was remanded to jail “until the Sheriff can obey the direction

of this sentence.”      He maintains that this language placed a legal

duty on the sheriff to determine whether Meriwether had already

completed serving his sentence.          He argues that the sheriff could

have obtained the necessary information from TDC by a simple phone

call.   Indeed, he maintains that TDC would refuse to accept a

prisoner such     as    Meriwether     who   had    already    served     his   full

sentence.

      Montgomery County responds by pointing to language in the

judgment ordering the sheriff to deliver Meriwether “immediately to

the   Director   of     the   Texas    Department      of     Criminal    Justice,

Institutional Division...”            The County insists that it had no

option under the law but to hold Meriwether for delivery to TDC
until told otherwise, either by TDC or by a court order.                   The

County also insists that it could not have obtained the information

about Meriwether’s service time from a telephone call but could

only wait for the “pen pack” to arrive from TDC.            While conceding

that this procedure could cause a person like Meriwether to be

confined beyond his proper release date, the County contends that

this result is the responsibility of the State of Texas and not the

County.

     On    remand   the   parties   should   develop   on   the   record   for

purposes of summary judgment or trial, as appropriate: (1) the

practices and rules for transferring prisoners; (2) the specific

facts surrounding the detention of Meriwether and his potential

release; and (3) the parties should then brief fully for the

district    court   the   applicable   law,   including     the   respective

obligations of the county jail and state prison.

     In short, the district court should decide by appropriate

procedures what the policy of Montgomery County was at the relevant

time and what caused the delay in releasing Meriwether.             Finally,

the court must determine the legality of any County policy found to

have caused the delayed release.

     In sum, this case needs further development at the trial

court.

     REVERSED and REMANDED.
