                               The Attorney       General of Texas
                                              Dacember 20,,1985
JIM MAlTOX
Attorney General
                                                                  Overrules   C-739

Supreme Court Building        HonorableMorris Samford.Jr.         OpinionNo. JM-398
P. 0. BOX 12549
Austin, TX. 78711.2549
                              Panola County Attarney
512’475-2501                  Room 225. Courthouse                Re: Reimbursementof county jail
Telex 9101874.1387            Carthage;Texas 75633                inmates for money lost to escaping
Telecooier 512/47502SS                                            prisoner

714 Jackson, SUM 7W           Dear Mr. Samford:
Dallas, TX. 752024508
21417428944                       You inquire who is legally_responsible    for reimbursement to
                                                                    _
                              county jail inmates for money taken from the jail by an escaping
                              prisoner. We conclude that the county is legally responsible for
4924 Alberta A”%. Suite 160
El Paso, TX. 799052793
                              money retainedby a county jail for safekeeping.
915/53334a4
                                  The legislaturehas provided that the sheriff is responsiblefor
                              the operation of the jail and for the safekeeping of prisoners
1Wl Texas, Suite 700          confinedin the jail. Article 5116, V.T.C.S.,provides,in part, that
Houston, TX. 77002.3111
713/222-5999
                                          (a) Rsch sheriff is the keeper of the jail of
                                       Fis cou~lty. Be shall safely keep therein all
W6 Broadway, Suite 312                 prisoners committed thereto by lavful authority,
Lubbock, TX. 79401.3479                subject to the order of the proper court, and
9061747-5239                           shall be responsiblefor the safe keeping of such
                                       prisoners.
UOB N. Tenth, Suite B
McAllen, TX. 7SWl~lSB5                    (b) fhe sheriff may appoint a jailer to take
5121882.4547                           charge of the jail, and supply the wants of those
                                       therein confined; but in all cases the sheriff
200 Main Plaza. Suite 400              shell exercise a supervisionand control over the
San Antonio, TX. 782052797             jail.
51212254191
                              Article 16.21 of tx Code of CriminalProcedurestates,in part, that
An Equal Opportunity/
Afflrmatlve Action Employer               Every sheriff shall keep safely a           person
                                       cosnuitte~i
                                                to his custody.

                              See also AttorneyGeneral OpinionH-1190 (1978).

                                   The legislaturealso has provided that the "CommissionersCourt
                              shell provide safe ,andsuitablejails for their respectivecounties,"
                              and that the jails,shall comply with the rules and proceduresof the
                              Commissionon Jail Standards. -See V.T.C.S. art. 5115, as amended in



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HonorableMorris   Samford,Jr. - Page 2 (JM-398)




1975. While the sheriff is responsible for operating the jail to
provide the safekeepingof prisoners, the "county is liable for all
expenses incurred in the safekeeping of prisoners confined in the
county jail," except that a county transferringa prisoner to another
county is liable for such expenses for the transferredprisoner. See
Acts 1985, 69th Leg., ch. 269, at 2340 (to be codified as Code Grim.
Proc. art. 104.002). See a,lsoAlbert1 v. Sheriff of Harris County,
m,     406 F.Supp. 649,rFD.      Tex. 1975) (commissionerscourt has
duty to maintain safe and suitable jail; sheriff has duty to keep
safely prisonersin his custody).

    Pursuant to the enactment of article 5115.1, V.T.C.S., in 1975,
the Commission on Jail Szandards promulgated rules and procedures
relatingto minimum standardsfor admissionto and release from county
jails which provide the following:

          0265.6. Inmate File.

             An individuel file on each inmate shall be
          establishedon iacake. A copy of all documents
          that purport to legally authorize the inmate's
          commitment shell become a part of the inmate's
          record, along with information obtained under
          5256.4'of this title (relating to Information
          about Inmates) ar.d9256.5 of this title (relating
          to Health Tags).

          9265.11. Inmate P,roperty
                                  Checking.

             If an inmate :.anot going to be released, the
          receivingofficer shall carefullyrecord and store
          such of the inmate'sproperty as is taken from him
          and issue the imaate a receipt, signed by the
          receiving officer,and the inmate, to be kept in
          the inmate'sfile ,pendingrelease.

           0269.1. Record Sgistem.

             The sheriff shall establish a records system
           for the detention~Eacility
                                    which includes:

              (1)  a daily relcord
                                 of the number of inmates in
              the detention Eacility;

             (2)  a record on each inmate, including in-
             formetion ob&ined    during admission, all
             classificationsgiven him, personal property
             receipts, cotmftment instructions, transfer
             orders, release orders, date of booking and



                               p. 1822
HonorableMorris Samford,;Ir.- Page 3 (JM-398)




            release, discpplinaryactions, unusual occur-
            rences, and any other informationrelating to
            the inmate'sconfinement;

            (3) a record of receipts and expendituresof
            money for ead~inmate's account. . . .
            (Emphasisaddsz.).

37 Tax. Admin. Code, Part IX, 55265, 267, 269.

     For the safety of irlnlates and to comply with jail standards,
prisonersare not permittedto keep any money while confined in jail.
All money remains in the custody of the sheriff where it nay be
deposited in an account that serves as a depositoryfor all inmates
personal funds. Normally, a prisoner must purchase certain personal
items, such as soap, pr~cstampedenvelopes, tobacco, etc., which
frequentlyare purchased frma a jail commissary. See 37 Tex. Admin.
Code, Part IX, 04259.32, 259.132. See also AttomFGeneral     Opinion
MW-143 (1980). Each innate has a record that shows the receipts to
and expendituresof money :irom his account, includingdebits for each
purchasemade at the commissaryor wade elsawherefor the inmate.

    We believe that offic!.alswith the duty to operate a county jail
inpliedly contract with the inmates that the jail will repay the
unused balance of their accounts on their release, thereby creatinga
relation analogousto that of debtor and creditor in the context of a
bank and the bank's depositors. Cf. Grebe v. First State Bank of
Bishop, 150 S.W.2d 64, 67 ('fax.1941); City NationalBank of Bryan v.
Gustavus,106 S.W.2d 262, 264 (Tex. 1937).

     It is well settledthat a county commissionerscourt has only the
powers conferredeither expresslyor by reasonableimplicationby the
constitutionand statutesof the state. See Tex. Const. art. V, 518;
Canalesv. Laughlin,214 S.W.2d 451, 453 !Tex. 1948);AttorneyGeneral
Opinion C-739 (1966). It :Lsour opinion that, in order to provide
safekeeping for prisoners confined in jail and to comply with the
rules of the Comwissionon Jail Standards,the sheriff has a duty to
keep and administer the inmates' money until their release and to
repay to each the unused balance when the inmate is released. The
retentionand repaymentof l-mates'money is a necessaryfunctionand
expense incurred by the c.ounty"in the safekeeping of prisoners
confinedin jail." As such, we concludethat a county is responsible
for the repayment of funds owed to inmates by the jail, even if the
funds are taken from the jail by an escaping prisoner. Cf. Attorney
General Opinion H-1253 (1978). But cf. Attorney Gene=        Opinion
JM-170 (1984).

     In 1966, this office :statedin Attorney General Opinion C-739
that it found no authorizat:ton
                              for a county to reimburseprisonersof




                               p. 1823
                                                                       .
RonorableMorris Samford,Jr. - Page 4 (JM-398)




a county jail for cash belmnging to prisonerswhich was taken from a
county jail by escapingpris,oners.Attorney General Opinion C-739 is
no longer valid because it was decided prior to the enactment of
article 5115.1 and the rules of the Coamrission
                                              on Jail Standards.

     It has been suggesteeithat the sheriff and his sureties are
legally responsiblefor the,reimbursementto prisonerswhose money is
taken by a jail escapee. A sheriff may be liable to a person or
entity that suffers damage resulting from his official conduct if he
fails to perform his dutier!or wrongfullyor negligentlyperforms his
duties. Hence, a sheriff could be liable for a loss that resulted
from his negligencein keeping property in his custody. See V.T.C.S.
arts. 5998 through 6003a; art. 6866. An action to recoverT&ages may
be brought against a sheriff and his bondsmen for a breach of his
official duties,but sureties on a sheriff'sbond are liable onlv for
a violationof the conditionsof their bond. See Lasater v. Waits, 68
S.W. 500, 501 (Tex. 1902); Jeff Davis CountyTDavis,    192 S.W. 291,
294 (Tex. Civ. App. - El Pa;101917, writ ref'd). Cf. Hemphill County
v. Adams, 406 S.W.2d 267, 272 (Tex. Civ. App. - tixlo   1966). rev'd
on other grounds, 408 S.W.:!d926; Browning v. Graves, 152 s.w.~=
(Tex. Civ. App. - Fort Worth 1941, writ ref'd).

    The liability of a sh.e.riffand his sureties for the sheriff's
failure to faithfully pex'formhis official duties involves fact
questionswhich this officr:is not equipped to answer in the opinion
process.

                           SUMMARY

            The retention and repayment of inmates' money
         by the personnelof a county jail are a necessary
         functionand expense incurredby the county in the
         safekeepingof prisoners confined in the jail. A
         county is responsiblefor the repayment of funds
         owed to inmates by the jail which are taken from
         the jail by an esc:aping
                                prisoner.




                                  J-h
                                      Very truly your
                                             .


                                      JIM    MATTOX
                                      AttorneyGeneral of Texas

JACK HIGRTOWRR
First AssistantAttorneyGeneral

MARY KELLER
ExecutiveAssistantAttorner General



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HonorableMorris Sanford,Jr. - Page 5   (JM-398)




ROBERT GRAY
SpecialAssistantAttorney General

RICK GILPIN
Chairman,Opinion Comittec!

Preparedby Nancy Sutton
AssistantAttorneyGeneral




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