                      AUSTIN   1% TEXAS




     Hon. Fred C. Brigman, Jr.
     County Attorney
     Uvalde County
     Uvalde. Texas        Opinion No.     V-1436
                         Re.: Legality of compensat-
                              ing the sheriff's wife
i                             for feeding prisoners
                              in the county jail under
i,   Dear Sir:                the submitted facts.
k
               Your request for an opinion is substan-
     tially as follows:
              "The sheriff of Uvalde County is
         compensated on a salary basis and had
         been since the passing of the Oonstitu-
         tional Amendment. In addition to his
         salary, the County has been paying him
         $.75 per day per prisoner for feeding
         of the prisoners and $.15 per day for
         safe-guarding the prisoners. At all
         times prior to April, 1951, the sheriff
         did not live In the County Jail and
         turned this check, endorsed in blank,
         over to his deputy to spay the deputy's
         wife for feeding the prisoners. The
         profit being considered as her compen-
         sation for cooking. On April 1, 1951,
         the sheriff resigned and the deputy was
         duly appointed for the unexpired term
         by the Commissioners' Court. The new
         sheriff continued to reside in the jail
         and his wife continued to feed the prison-
         ers . The new sheriff's contention is
         that he should be allowed to continue
         to compensate his wife by giving her the
         check paid him by the County and letting
         her keep the profit, if any, as she had
         been receiving the money under the prior
         sheriff for a period of almost four years.
         The employment of a cook for the jail has
         never been authorized by the Commissioners'
Hon. Fred C. Brigman, Jr., page 2   (v-1436)


    Court. The new sheriff has also, at
    various times after April 1, 1951, kept
    prisoners for the Federal Government re-
    ceiving the sum of $1.50 per prisoner
    per day for feeding and safe-guarding
    of prisoners. Apparently, no Federal
    prisoners were received under the form-
    er sheriff."
          You have presented for determination the fol-
lowing questions:
          "Question No. 1. Under the above fact
     situation, is the new sheriff's wife en-
     titled to retain the profit from feeding
     prisoners?
          "Question No. 2. Under the above fact
     situation, was the former sheriff entitled
     to pay the profit from feeding prisoners to
     his deputy's wife?
           vQuestion No. 3. Should there be-any
     aooortionm
       &~~~.----~~ient
     ~~.            of the sum paid by the Federal
     Governmentbetween safe-guarding and feeding
     of prisoners.?
          "Question No. 4. In the event that
     auestion No. 1 is answered in the affirma-
     tive, is the new sheriff's wife entitled
     to the entire amount received from the Fed-
     eral Government or only to $.75 per prisoner
     per day?"
          The sheriff of Uvalde County is-compensated
on a salary basis by virtue of Section 61, Article
XVI of the Constitution of Texas.
          In Attorney General's Opinion V-1232 (~1?51),
it was held that
          "The Commissioner's court is not au-
     thorized to allow the sheriff any specific
     sum for the boarding of prisoners, but only
     the actual expenses incurred by him in feed-
     ing the prisoners in his custody, whether
     by a contract with an individual at a flat
     daily rate per prisoner, or otherwise."
-   -



         Hon. Fred C. Brigman, Jr.:,page 3   (V-1436)


                   A sheriff .would ordinarily be,prohibited
         from employing his wlfe~.as'acook for pr'isonersin the
         county,jail, by vlrtue:~of~Articles432.atid435, V.P.C.
         However, there Is an exception to this prohibition with
         regard to any person who has been continuously employed
         In any office or employment for two'years prior to the
         election or appointment of the officer appointing such
         person to office or employment. -In Attorney General's
         Opinion V-1142 (1951) it was stated:
                   !'Aperson who was employed by the county
              at the time his ~brotherfirst ~took office as
              County Commissioner on January 1, 1951, land
              had been continuously so employed for a period
              of two years immediately prior ther~eto,may
              be retained~asa c,ountyemployee without vi-
             'elating the nepotism statute (Article 432,
              V.P.C., as amendeSj,Acts 51st Leg., R.S. 1949,
              ch. 126,.p. 227).
                    Inasmuch asyou state that the wife of the
    ..    sheriff has been employed two years .prior to his ap-
    ;:    pointment, and in view of the further fact that the
          sheriff is allowed the actual and necessary expenses
    ',,.~,for the maintenance of'the jail, It,Is our opinion that
    1,
     ;:   the sheriff's wife ~may act in the capacity of a cook
          forthe jail. It is to be noted that the feeding of
    '.I prisoners comprises'a part of the necessary functions
    .>J~ involved in the operation of the jail, and need not
    ;I,' necessarily be subject to authotiizationby the com-
    apr~
       :
    .;.: missioners' court since this employment is discretion-
         -ary with the sheriff. The actual and necessary expendi-
          tures~incurred~by reason of the operation of the jail
         ~,aresubject to scrutiny by the commissioners'~court.
         'We are not concerned here widthan office but only a
          ~oontractof employmentwhich is an incidental part of.
          the necessary expenditures for.the operation of the
          jail.
                    In answer to your second question, we point
         out that the expense of feeding may be, as is the case
         under the facts which you set out, incurred at a flat
         dally.rate. As stated in,our discussion under your
         first question, the sheriff, in the maintenance and
         operation of the -jail,Is entitled to his actual and
         necessary expenses. Since it would appear that the
         contract between the former sheriff and his deputy's
         wife was for the.feeding of prisoners at a flat daily
         rate ~per meal there Is no question of the payment of a
         Profit and hence a proper basls ~for such payment.
    2’138   Hon. Fred C. Brigman, Jr-,;.page 4~~t~(V+1436)


                      There is no statutory basis for the payment
            of $.15 perday fee for prisoners and ~the $.75 per ~.
            day fee for feeding, as provided in Article 1040,
            V.C.C.P., in salary counties In the population brack-
            et of Uvalde County since these payments are prohibit-
            ed by Section 3 of Article 3912e, V.C.S. Att'y Gen.
            Op. v-655 (1948) and O-1242 (1939).~ Although these.
            fees are not authorized, as stated, the sheriff is
            entitled to the expenses necessary for operation of
.           the jail.
                      In answer to your question No. 3, It is our
            opinion that a county is entitled to receive the en-
            tire amount from feeding and safeguarding federal pris-
            oners.. In Hood v. State, 73 S.W.2d 611, 613 (Tex.
            Civ. App. 1934, error ref.) the court stated;
                      "While article 1040 in general terms
                provides a remuneration oPthe sheriff, with-
                in prescribed limits, for each prisoner 'con-
                fined in jail or under guard,'.yet it further
                deals with, 'expenditures and the.amount al-
                 lowed by the commissioners court,'.and in the,
                succeeding articles provision ismade only
                for such allowance to be paid by the commis-
                 sioners' court for the subsistence and,~care
                 of county prisoners.
                                                                :.
                      "The doubt arises as to the construe- ~.::
                 tion-of ,article 1040 ~of the Criminal Procedure:
                Code, as to whether the ~remuneration forthe, ::
                 subsistence and safe-keeping of federal,prls-.~
                 oners, allowed and.paid under contract-with
                 the United States government; should be read
                .into the provision of the statute~so as to ..
                 make such payment accountable feesof office,
                 and we also express.the doubt as has been
                 heretofore done by other Courts of Civil Ap:
                 peals, supra.
                       'In the re orted cases of&ale    v. State
                  (Tex. Civ. App.7 67 S.W.(2d) 1060; Orndorf v.
                 El-Paso County, supra; and.Binford v. Harris
                 County, supra, our Supreme Court has denied,:
                 writs of:error, and the-cases.being analogous.
                 to the one,here presented, the decisions are
                 -binding on this court, ,thus expressing the
                 ruling that must control. Therefore;~.-
                 moneys paid by the United States ~.Povernment
      Hon. Fred C. Brigman, Jr., page 5    (v-1436)
                                                                    2x3

           for the safe-keeping and subsistence of
           federal prisoners under contract with the
           sheriff are accountable fees of office."
           -(Emphasisadded.)
                 Passing to question No. 4, the rules stated
      in answer'to-your other questions are applicable and
      the contractor who provides the food for prisoners is
      entitled to the flat dally rate agreed upon. The sur-
      plus remaining after payment of this contract price    0,
      is to be paid to the county under the holding in Hood
      v. State, supra, quoted above. Att'y Gen. Op. V-m        d/
                                                             c-
      lTmr
               /
                             suMMARY
                By virtue,of the nepotism laws (Arti-
           cles 432 and 435, V.P.C.), a sheriff would
           ordinarily be prohibited from employing his
           wife as a cook for prisoners in the county
           jali. However, a sheriff's wife employed
           as a cook in the county jail two years prior
           to the appointment of the sheriff may con-
           tinue in such employment by virtue of House
           ;i1;25780,Acts 51st Leg., R.S. 1949, ch. 126,
            .    . She may be compensated at a flat
           dally rate or otherwise, and this compensa-
           tion Is an operational expense of jail main-
           tenance. The sheriff, since he is on a sal-
           ary basis, is entitled only to actual and
           necessary expenses in the maintenance and
           ~~~~~i~~d~~-~,~~~~~~~~~~'y Gen. Ops. .V-1232

                A county is entitled to receive the en-
           tire amount paid for the feeding and safe-
           guarding of federal prisoners. -Hood v. State,
           73 S.W.2d 611 (Tex. Civ. App. 1934, error ref.).
                                          Yours   very   truly,

      KT~~ED:                               PRICE DANIEL
                                          Attorney General
      J. C. Davis, Jr.
      County Affairs Division
:_,
      E- Jacobson                         BY-~
      Reviewing Assistant                    Burnell Waldrep
                                                   Assistant
    Charles D. Mathews
+.. First Assistant
.J
