    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


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