Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
June 21, 1978
JOHN L. HILL
Attorney General
Honorable George N. Rodriguez, Jr. Opinion No. H- 1190
El Paso County Attorney
Room 201, City County Bldg. Re: Whether the commissioners
El Paso, Texas 79901 court can control the operation
of the county jail.
.Dear Mr. Rodriguez:
You have requested an opinion concerning operation of the county jail.’
You have asked “whether the Commissioners’ Court ~has the authority to
supervise, direct or control the actual daily operation of the county jaiL” It
is our opinion that the legislature has provided that the sheriff is the
authority responsible for the operation of the jaiL
.I
Article 5ll6, V.T.C.S., provides in part:
(a) Each sheriff is the keeper of the jail of his
countv. He shall safelv keep therein all prisoners
comm:tted thereto by lawful authority; subject
to the order of the proper court, and shall be
responsible for the safe keecung of such
prisoners.
(b) The sheriff may appoint a jailor to take charge
of the iaiL and sunnlv the wants of those therein
confined; ‘but in‘*ail cases the sheriff shsll
exercise a supervision and control over the jaii
(Emphasis added). This language is clear that the sheriff “shall exercise a
supervision and control” and the nature of thii authority is such that it
precludes the commissioners court from such authority over the jaiL The
sheriff is the “keeper” of the jaiL Keeper is defied as a “custodian,
manager, or superintendent; one who has the care, custody or management of
any thing or place; one who’has or holds possession of anything.” Black’s Law
Dictionary 1007 (4th ed. 1951). The sheriff has the authority to hire and fire
the jailor and other personnel, V.T.C.S. article 5R6, section b, article 2351~;
Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941); Letter Advisory No. R6 (1975);
p. 4790
Honorable George N. Rodriguez, Jr. - Page2 (H-1190)
Attorney General Opinion G-2444 (1940), and is responsible for the safekeeping of
the jail, V.T.C.S. article 5116(a); Code’of Criminal Procedure, article 16.21. The
sheriff mav be liable in a civil action for breach of thii dutv of safekeeoine of
prisoners. -Browning v. Graves, 152 S.W.2d 515 (Tex. Civ. App. - Fort Worih~k41,
writ ref’d). The sheriff in Whirl v. Kern, 407 P.2d 781 (5th Cir. 1968), cert. denied,
396 U.S. 901 (1969), was held liable for failing to release a prisoner after the
charges had been dropped. The court said “the statutory obligations of a Texas
sheriff are not amorphous ones.” E at 794. “Article 5ll6, places the responsibility
for the county jail directly upon the county sheriff. . . .” Ia. at 795; see art. 5llSc,
V.T.C.S.; but see Attorney General Opinion H-544 (1975) and cases cited therein.
The authority of the commissioners court, on the other hand, is of a broader
and more general scope which does not require actual operation of the jails
although monitoring and observation would certainly be proper. Generally, the
“Commissioners Court is responsible for funding the agencies which comprise the
criminal justice system.” Alberti v. Sheriff of Harris County, 406 P. Supp..649, 659
(SD. Tex. 1975) (unsafe and crowded jail conditions). Article 5115, V.T.C.S.,
provides that
The Commissioners Court shell provide safe and suitable
jails for their respective counties, and shall cause the same
to be maintained in good sanitary condition at all times,
properly ventilated, heated and lighted; structurally sound,
fire resistant and kept in good repair. Furthermore, they
shall cause the jails in their respective counties to be kept in
a clean and healthy condition, provided with water of safe
quality and ample quantity and sewer disposal facilities in
accordance with good sanitary standards, and provided with
clean, comfortable mattresses and blankets, sufficient for
the comfort of the prisoners, and that food is prepared and
served in a palatable and sanitary manner and according to
good dietary practices and of a quality to maintain good
health. Such jails shall comply with the provisions of this
Act and with the rules and procedures of the Commission on
Jail Standards.
Article 2351, V.T.C.S., provides that “Each commissioners court shall:. . . [plrovide
and keep in repair court houses, jails and all necessary public buildings.” Article
1603, V.T.C.S., has a similar provision. The county, for which the commissioners
court is the governing body, is liable for the expense of the jail and safekeeping of
the prisoners. Code Crim. Proc. art. 1037. The court approves and compensates
the employees selected by the sheriff for employment in the jail, article 6871,
V.T.C.S.; Attorney General Opinion O-2444 (1940); however, the court cannot
p. 4791
Honorable George N. Rodriguez, Jr. - Page 3 (H-1190)
interfere with the employment ~relationships within the office of an elected
official. V.T.C.S. art. 3092. The authority of the commissioners court over the jail
is limited to providing the jail, adequate funding, and broad operational guidelines
which leave the actual operation of the jail with the sheriff.
SLFMMARY
Authority to supervise, direct or control the actual daily
operation of a county jail is vested in the office of the
sheriff although the commissioners court does have general
responsibilities in connection with the operation of the jail.
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
P. 4792