Untitled Texas Attorney General Opinion ( 1946 )

THE A~ORSEY GESERAL
OFTEXAS
OROVER SELLER8 Ausns 11.mm
A~ORNEY GESEHAL
HonorableI. 8. Hand
CriminalDintriotAttorney
Weatherford,Tena
Dear Sir:
opinionNo. 0-7600
Rer Under the given faatr, ce,r, the
Sheriffof Parker Caun+q legally
live in the living quartera in
the aounty jail, providedfor the
jailer of the aounty,reoei~ing
thereby free rent, utilitierand
groceries?
Your letter of recent date requestingan opinion from this departmenton
the above aubjeotmatter is a8 follows;
“I have your opinionlo, O-5297 and related opinionattaohedthereto
regardingthe salary of the sheriffof Tarker County,Texas.
Va hare a questionhere in .ParkerCounty,Texas, oonoerningthe sheriffs3
compensation,which I wish to sutanit to you. The sheriff-electhas
informedth,commissioners~ court that he desires permissionto
move him~,e~’and family into the living quartersat the county
jail and ti,live there and performthe dutios a8 jailor,or if this
is objectionable,he statesthat he will merely live there and have
a regular jailor. The: oomissioners~ court paya for all expenses
of the jail and the jailor living there, includinggroceries, utili-
ties, etc. I beg to be advisedas to whether in your opinionthe
iberiff can legallylive in the living quartersprovidedfor the
gailor of the,oounty,reoeivingthereby free rent, utilities,and
g00erie.9.
*It would appear to me under your ~OpiniOn as ret out above that this
oould not be legallydone unless the oommisaionera’oourt should
mter an order increasingthe oompensationof the sheriffa8 provided
in Artiole 3891, Bettingthe amount of the increaseat an equivalent
of the value of the rent and other items suppliedthe sheriffthrough
his residenceat the jail.
&XI. I. B. Rand - Page 2- O-7500
%a this is questionwhich preaentaa somewhatdilicateproblemin
our offioialfamily, I would appreciateyour opinionaa to whether
the sheriffcan legallytake up his residencewith his family at
the jail, and of so, under what conditions.'
Article 5116, V. A. C. S., providea:
"Eaoh sheriffis tha keeper of the jail of his oomty. & shall
safelykeep thereinall prisonerscommittedthereto by lawful
authority,subjectto the order of the proper court,and shall be
rsaponaiblefor the safe keeping of such prisoners. The sheriff
may appointa ,isilerto take charge of the jail, and supplythe
wants of those thereinconfined;but in all cases the sheriff--
shall
exercisea supervisionand controlover the ;lail."
- (Underscoring
ours)
The word "may" is usuallyonly permissiveor disorationary,
while the
word "shall"is of mandatoryeffect. See: Xorda and Pheraes,Vol. 26,
pp. 760-770.
It will be noted that Article 5116 places a mandatoryduty on the sheriff
to exeroiaesupervisionand controlover the jail in his county and leaves
to his discretionwhethera jaileris to be appointed. It is therefore
the opinionof this departmentthat the sheriffof Parker Countysnd
his family,ay legallylive in tho living quartersin the county jail
if the aheraf
3 believesthat in so doing he can best carry out the duties
prescribedin Artiole 5116.
It will be noted, however,that Artiole 5116 does not authorizea county
to pay the utilities,groceriesor other living expensesof the sheriff
and his family. Nor have wa been able to find any statuteauthorizin~g
the same. Therefore,it is our furtheropinionthat the Ce~iaaionara*
Court is not authorizedto allow the sheriffor hia family their living
expensessuoh a you have outlinedin your request.
7
Yours very truly
APPROVED DEC. 21, 1946 ,ATTORNEYGENERALOF TEXAS
a/ Harris Toler a/ J. C. Devir; Jr;
By HarrisToler &
First Assistant J. C. Davis, Jr,
Attorney General Assistant
JR:djm:ldw a/ John Reeve8
BY John Reeves
APPROVED OPIBIOR
CGMhWl'EEBY B.$. 5. CRXMAN