Texas Attorney General Opinion: GA-0229 Page: 5 of 14
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The Honorable Matt Bingham - Page 5
noted that the predecessor provisions to section 351.043 required a sheriff to receive federal
prisoners. See Tex. Att'y Gen. LO-90-95, at 4. The legislature amended the statute in 1981 to
provide that the sheriff "may receive" federal prisoners. See id.; see also Act of May 19, 1981, 67th
Leg., R.S., ch. 241, 1, 1981 Tex. Gen. Laws 603. Citing the 1981 legislative history, the letter
opinion concluded that "[t]he substitution of the phrase 'shall receive' for the phrase 'may receive'
was not intended by the legislature to [a]ffect anything other than to no longer impose on the county
sheriff the mandatory duty to admit federal prisoners into the county jail." Tex. Att'y Gen.
LO-90-95, at 4-5.
We conclude that Letter Opinion 90-95 correctly construed section 351.043. A sheriff must
have authority to keep a prisoner. See TEX. LOC. GOV'T CODE ANN. 351.041(a) (Vernon 1999)
("The sheriff shall safely keep all prisoners committed to thejail by a lawful authority, subject to an
order of the proper court.") (emphasis added). On its face, section 351.043 merely provides legal
authority for a sheriff or jailer to receive and keep a federal prisoner in the countyjail. At most, it
authorizes a sheriff or jailer to house and keep individual federal prisoners as requested by a federal
officer on a case-by-case basis. It does not authorize a sheriff to enter into a contract committing the
county to house federal prisoners, reserving beds in the county jail for federal use over a term of
years. See id. 351.043. Indeed, the statute authorizes the sheriff or the jailer to keep and house
a federal prisoner. See id. Under section 351.041 (b), the jailer is an employee subject to the sheriff's
supervision and control. See id. 351.041(b) ("The sheriff may appoint a jailer to operate the jail
and meet the needs of the prisoners, but the sheriffshall continue to exercise supervision and control
over thejail.") (emphasis added); see also De la Garza v. State, 579 S.W.2d 220, 223 (Tex. Crim.
App. 1979) (concluding that statutory predecessor to section 351.041 "authorizes the Sheriff to
legally impose such restriction on his jailers"); Tex. Att'y Gen. Op. No. JM-1047 (1989) at 2 ("A
jailer is employed by the sheriff and subject to his supervision and control in matters involving his
duties as jailer."). If we were to construe section 351.043 to authorize the sheriff to enter into a
contract, we would also have to conclude that the statute vests the jailer with the same authority. We
doubt the legislature intended to authorize ajailer, an unelected county employee under the sheriff s
control, to enter into contracts obligating the county to house federal prisoners in the countyjail. See
TEX. GOV'T CODE ANN. 311.023 (Vernon 1998) ("In construing a statute, .. a court may consider
among other matters the: (1) object sought to be attained [and] (5) consequences of a particular
construction ... ."). Finally, while the legislature revisited section 351.043 in 1991 and 1997, on
neither occasion did it reject the 1990 letter opinion's interpretation of the statute by amending
section 351.043 to authorize sheriffs to enter into contracts.3
You disagree with Letter Opinion 90-95 for several reasons. First, you assert that while the
legislature may not have intended section 351.043 to authorize a sheriff to enter into a contract, "the
reality of the [1981 ] change had the effect of creating a need for contractual obligations to ensure
bed-space for federal needs." Request Letter, supra note I, at 2. You further assert that the
legislature could not have intended to authorize the commissioners court to enter into such a contract
because the commissioners court does not have authority over housing federal prisoners. See id.
at 3.
3SeeAct of Aug. 25, 1991, 72d Leg., 2d C.S., ch. 10, 11.16, 1991 Tex. Gen. Laws 180, 207; Act of May 10,
1997, 75th Leg., R.S., ch. 259, 10, 1997 Tex. Gen. Laws 1196, 1201.(GA-0229)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0229, text, August 9, 2004; (https://texashistory.unt.edu/ark:/67531/metapth275125/m1/5/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.