                               The Attorney        General of Texas
                                                :)ecember31, 1985
JIM MATTOX
Attorney General



Supreme Court Building         Honorable Bill Stcbblefield      Opinion No.   JM-415
P. 0. Box 12546                Williamson County A,ttorney
Austin, TX. 76711.2546         Third Floor, Courthouse          Re:    Legality of a sheriff hiring.
5121475-2501
                               Georgetown, Texas   78626        for a paid county position as an un-
Telex 910/674.1367
Telecopier   51214754266
                                                                guarded maintenance supervisor out-
                                                                side the jail, a prisoner sentenced
                                                                to the Texas Department of Correc-
714 Jackson, Suite 700                                          tions but not transferred there
Dallas, TX. 75202.4506
214l742-6944
                               Dear Mr. Stubblefi,eld:

4624 Alberta Ave., Suite 160        Your letter+rlef requesting an opinion from this office advises
El Paso. TX. 79905.2793        (in somewhat diffmeut sequence):
9151533.3464

                                           On Au8ust 12, 1982, a prisoner who had been
,001 rexas, suite 700                   placed cn probation for driving while intoxicated,
Houston, TX. 77002.3111                 subsequent offense, had that probation revoked.
713/223-5666                            He was sentenced to five years in the Texas
                                        Department of Corrections. The Sheriff retained
                                        the primner in the Williamson County Jail, where
SW Broadway, Suite 312
Lubbock, TX. 79401.3479                 he became a trusty. . . .
0081747.5230
                                           In the present case, the delay in transporting
                                        amounted to twenty months. However, this may have
4309 N. Tenth, Suite B
McAllen, TX. 76501-1665
                                        been mf:ivated by an understanding on the
512/662-4547                            sheriff's part that the prisoner's actual time
                                        behind bars would be very brief. . . .
200 Main Plaza, Suite 400
                                           The Imisoner in this case is conceded by all
San Antonio, TX. 76205-2797
512/2254191
                                        parties t:o be an unusually skilled mechanic. In
                                        September of 1983, the sheriff asked the comnis-
                                        sioners court to create a new position of main-
An Equal OppOrtUnityf                   tenance superrrisor,citing the financial benefits
Affirmative Action Employer             to the county by avoiding commercial shop charges
                                        to repair and maintain county vehicles. The court
                                        concurred largely on the basis of their apprecia-
                                        tion 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. 1895
Donorable Bill Stubblefield - Page 2   (JM-415)




          released, but i,: was essential to fill the new
          position. The s,heriff had three choices: he
          could leave the job open (and pay 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
          sheriff hired rho prisoner for that position.

             It should be <emphasized that the prisoner in
          the present case was not engaged in manual labor
          as an incident of his confinement; he was per-
          forming skilled labor because 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 considerable am#ountof freedom of movement. In
          part, this was 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 days per week. . . .

     You characterize the 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 -- assumptionr that require attention.

     In Gardner v. State, 542 S.W.2d 127 (Tex. Grim. App. 1976). a
prisoner whose five-year I,robationwas revoked and who was sentenced
to the Texas Department of Corrections, claimed that he should not 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
iseaediatedischarge.

     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. 1896
Eonorable Bill Stubblefield - Page 3   (JM-415)




that only the director of the Texas Department of Corrections could
make a final determination of what "good time" credits a prisoner held
in a county jail prior to his transfer to the Texas Department of
Corrections might 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's argument in this
          case and permit the Smith County Sheriff to deter-
          mine 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. This we shall not do.

-See 542 S.W.2d 127, at 131; see also V.T.C.S. art. 6181-1, 53(c).
     After reciting prov:Lsions of the judgment that ordered the
prisoner to be delivered by the sheriff "immediately to the director
of corrections of the Tex2.sDepartment of Corrections," -id. (emphasis
omitted), the court further stated:

          In view of this felony judgment and sentence,
          appellant must te committed to the Texas Depart-
          ment of Corrections to serve the remainder of his
          sentence, not 1:~'the Smith County Jail. . . .
          Upon issuance of the mandate of affirmance of this
          conviction by this Court, the provisions of the
          trial court's sentence shall be carried out
                        See State ex rel Vance v. Hatten,
          immediately. --,
          508 S.W.2d 625 ('Pex. Cr. App. 1974). (Emphasis
          added).

     The court in Gardner v. State, supra, noted that a prisoner
sentenced to fewer than t&i years in prison and not released 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 prisoner was not awaiting the outcome of an appeal, and he had
been sentenced not to jail, and not to a work-release-program, but to
prison. It was therefore tne duty of the sheriff to immediately take
the steps necessary to comeit the prisoner to the Texas Department of
Corrections. See C.C.P. art. 42.09; V.T.C.S. 6166r (transportation of
prisoners).

     The sheriff had no authority whatever to permit the prisoner such
"freedom of movement" 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. The Code
of Criminal Procedure, art:.cle42.09, section 1 provides in pertinent
part:

          Except as provided.in Sections 2 and 3 [detailing
          procedure regard.tug defendants released on bail
          and those sentenced to a term of more than ten
          y=ars I, a defendz.ntshall be delivered to jail or
          to the Department of Corrections when his sentence
          to imprisonment jz pronounced, or his sentence to
          death is announced, by the court. . . . (Emphasis
          added).

     A sheriff is authorized by 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
consistent with proper disc,Lpline,but the privileges awarded cannot
contravene legislative commands. See Ex parte Walker, supra. See
also Gardner v. State, =a -,;AttomFGeneral     Opinion MN-497 (1982r

     Article 2.18 of the Code of Criminal Procedure states that it is
a violation on the part of a sheriff to permit a defendant, committed
to jail by warrant from a court, to remain out 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 relevance v. Hatten, supra, at 508 S.W.2d 628;
Bx parte Wyatt, 16 S.W. 331 (Tax. Ct. App. 1891); Attorney General
Opinion H-603 (1975).

     In Ex parte Wyatt, =~a,   the court said:

         The sheriff has no right, no matter what his
         motives, whether of humanity or not, to commute or
         alter . . . [a prisoner's] punishment, and any act
         of his doing so i,s a violation of his duty, and
         absolutely void.

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 General   Opinion M-918 (1971). -Cf.
Ex parte Morgan, 262 S.W.2d 728 (Tex. Grim   App. 1953).

     With respect to the employment of prisoners -- aside from con-
siderations of their place of employment or the supervision accorded
them -- it should be noted t:hatthere is no federally protected 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. 1898
Honorable Bill Stubblefieli - Page 5   m-4151




no constitutional right ir.prisoners to be paid for their labor; any
compensation permitted is by grace of the state. Sigler v. Lowrie,
                             cert. denied, 395 U.S. 940 (1969).
404 F.2d 659 (8th Mr. 196!%:I,

     The only provisions':in our 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:inimumWage Act of 1970 does not apply to
"any person who performs any services while imprisoned in the state
penetentiary or confined in a local jail."

      Convicted felons - even those sentenced to life imprisonment --
are not "civilly dead." Davis v. Lanipg, 19 S.W. 846 (Tex. 1892).
Cf. Hendrick V. Marshall, 282 S.W. 289 Tex. Civ. App. - Dallas 1926,
nowrit).    But they are n3.t free to enter a master/servant contract
for the sale of their labx, time or services -- the disposition of
which is lodged by 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., specifies that all prisoners 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,f the sheriff's personal funds. In our
opinion, it is also 1egaX.y impermissible for a sheriff to place on
the county payroll as a ma:.ntenancesupervisor a prisoner sentenced to
the Texas Department of Corrections. Cf. V.T.C.S. art. 3902. If the
prisoner here supervised other prisonersas may have been the case we
understand), article 6184k-1, V.T.C.S., was also violated.        That
statute reads:

             Section 1. An inmate in the custody of the
          Texas Department of Corrections or in any jail in
          this state may not act in a supervisory or admini-
          strative capacity.over other inmates.

             Sec. 2. An inmate in the custody of the Texas
          Department of Corrections or in any jail in this
          state may not adainister disciplinary action over
          another Inmate.




                                 p. 1899

.
Bonorable Bill Stubblefieli - Page 6      (JM-415)




                       S 'JM M A R P
                       --

            A prisoner se!ltencedto the Texas Department of
         Corrections and awaiting transfer to its facility
         may .not be placed by the sheriff on the county
         payroll as a mak11:enancesupervisor.




                                       J
                                       Very truly yo


                                              AL
                                       JIM     MATTOX
                                       Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney Gmrneral

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairmen, Opinion Committe~z

Prepared by Bruce Youngbloc,d
Assistant Attorney General




                                p. 1900
