Texas Attorney General Opinion: V-1436 Page: 3 of 5
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Hon. Fred C. Brigman, Jr., page 3 (V-1436)
A sheriff would ordinarily be prohibited
from employing his wife as a cook for prisoners in the
county jail, by virtue of Articles. 432 and 435, 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:
"A person who was employed by the county
at the time his brother first took office as
County Commissioner on January 1, 1951, and
had been continuously so employed for a period
of two years immediately prior thereto, may
be retained as a county employee without vi-
olating the nepotism statute (Article 432,
V.P.C., as amended, Acts 51st Leg., R.S. 1949,
ch. 126, p. 227)."
Inasmuch as you 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
the sheriff's wife may act in the capacity of a cook
for the jail. It is to be noted that the feeding of
prisoners comprises a part of the necessary functions
involved in the operation of the jail, and need not
necessarily be subject to authorization by the com-
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
are subject to scrutiny by the commissioners' court.
We are not concerned here with an office but only a
contract of employment which 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
daily 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 aProfit and hence a proper basis for such payment.
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Texas. Attorney-General's Office. Texas Attorney General Opinion: V-1436, text, April 29, 1952; (https://texashistory.unt.edu/ark:/67531/metapth266254/m1/3/: accessed April 23, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.