If a jail inmate's money is stolen by an escaping prisoner, who has to pay it back?

Texas AG Opinion JM-398: County Owes Lost Inmate Money

Plain-English summary

A county attorney asked a practical question after a jail break: when an escaping prisoner takes money that the jail was holding for its inmates, who has to make the inmates whole? The Attorney General concluded that the county is legally responsible for money a county jail keeps in safekeeping, and that responsibility does not disappear just because an escapee is the one who took it. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

The setup matters. For safety and to meet state jail standards, prisoners are not allowed to keep cash on them. Their money goes into the sheriff's custody, often pooled in a depository account, and each inmate has a ledger of deposits and of debits for commissary purchases like soap, stamped envelopes, or tobacco. When the inmate is released, the jail is supposed to hand back the unused balance. The AG described that arrangement as an implied contract to repay, much like the relationship between a bank and its depositors. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

From there the answer followed the money duty. The sheriff runs the jail and must keep prisoners safely, and the county is liable for the expenses of that safekeeping. Holding inmates' money and returning it is one of those necessary functions, so the cost of making good on it, even after a theft by an escapee, falls on the county. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

The opinion also cleared away an older answer. Back in 1966, opinion C-739 had found no authority for a county to reimburse prisoners whose cash was taken by escapees. The AG declared C-739 no longer valid, because it predated the 1975 enactment of article 5115.1 and the Commission on Jail Standards rules that now require jails to account for inmate money. As a separate matter, the AG noted a sheriff and the sureties on his bond could be liable if the loss resulted from the sheriff's negligence, but said that question turns on facts the opinion process cannot resolve. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Who pays back inmates whose jail money an escapee stole?

The county. The AG concluded that a county is responsible for repaying funds the jail owed to inmates, even when the money is taken from the jail by an escaping prisoner. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

Why is the county on the hook rather than the individual inmates absorbing the loss?

Because holding and returning inmate money is part of the county's duty to keep prisoners safely, and the county is liable for the expenses of that safekeeping. The AG treated the jail's obligation to repay the balance as an implied contract, similar to a bank owing its depositors. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

Didn't an earlier opinion say counties could not reimburse this money?

Yes, opinion C-739 from 1966 said that, but the AG declared it no longer valid. It was decided before the 1975 statute (article 5115.1) and the Commission on Jail Standards rules that require jails to record and account for each inmate's money. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

Could the sheriff personally be liable instead?

Possibly, but not decided here. The AG noted a sheriff can be liable for a loss caused by his negligence in keeping property in his custody, and that his bond sureties can be liable for a breach of the bond's conditions. Whether that happened is a fact question the AG could not answer in an opinion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

Background and statutory framework

Two duties frame the answer. The sheriff is keeper of the county jail and must safely keep the prisoners committed to it (Article 5116, V.T.C.S.; Article 16.21 of the Code of Criminal Procedure), while the commissioners court must provide safe and suitable jails that comply with the Commission on Jail Standards (V.T.C.S. art. 5115, as amended in 1975). The county bears the expenses of safekeeping prisoners, a rule the 1985 Legislature restated in Acts 1985, 69th Leg., ch. 259, at 2340, to be codified as Code Crim. Proc. art. 104.002, and one the federal court recognized in Alberti v. Sheriff of Harris County, Texas, 406 F.Supp. 649 (S.D. Tex. 1975). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

After article 5115.1, V.T.C.S., was enacted in 1975, the Commission on Jail Standards adopted rules requiring an individual file on each inmate, careful recording and storage of property taken from an inmate, and a record of receipts and expenditures for each inmate's money account (37 Tex. Admin. Code, Part IX, §§265, 267, 269). Because inmates cannot keep cash, the sheriff holds it and is expected to return the unused balance at release. The AG likened that to a debtor-creditor relationship, citing Grebe v. First State Bank of Bishop, 150 S.W.2d 64 (Tex. 1941), and City National Bank of Bryan v. Gustavus, 106 S.W.2d 262 (Tex. 1937). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

A county commissioners court has only the powers the constitution and statutes confer expressly or by reasonable implication (Tex. Const. art. V, §18; Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)). Reading those safekeeping duties together, the AG found the retention and repayment of inmate money to be a necessary county function and expense, which is why the county remains responsible even after an escape. On the separate question of the sheriff's personal exposure, the opinion pointed to the statutes governing sheriffs' liability and bonds (V.T.C.S. arts. 5998 through 6003a; art. 6866) and to cases including Lasater v. Waits, 68 S.W. 500 (Tex. 1902), Jeff Davis County v. Davis, 192 S.W. 291 (Tex. Civ. App. - El Paso 1917, writ ref'd), Hemphill County v. Adams, 406 S.W.2d 267 (Tex. Civ. App. - Amarillo 1966), and Browning v. Graves, 152 S.W.2d 515 (Tex. Civ. App. - Fort Worth 1941, writ ref'd), while leaving the fact-bound liability question unresolved. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

Citations and references

• Article 5116, V.T.C.S.
• Article 16.21 of the Code of Criminal Procedure
• V.T.C.S. art. 5115 (as amended in 1975)
• article 5115.1, V.T.C.S.
• Acts 1985, 69th Leg., ch. 259, at 2340 (to be codified as Code Crim. Proc. art. 104.002)
• 37 Tex. Admin. Code, Part IX, §§265, 267, 269
• Tex. Const. art. V, §18
• V.T.C.S. arts. 5998 through 6003a; art. 6866
• Alberti v. Sheriff of Harris County, Texas, 406 F.Supp. 649 (S.D. Tex. 1975)
• Grebe v. First State Bank of Bishop, 150 S.W.2d 64 (Tex. 1941)
• City National Bank of Bryan v. Gustavus, 106 S.W.2d 262 (Tex. 1937)
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Lasater v. Waits, 68 S.W. 500 (Tex. 1902)
• Jeff Davis County v. Davis, 192 S.W. 291 (Tex. Civ. App. - El Paso 1917, writ ref'd)
• Hemphill County v. Adams, 406 S.W.2d 267 (Tex. Civ. App. - Amarillo 1966)
• Browning v. Graves, 152 S.W.2d 515 (Tex. Civ. App. - Fort Worth 1941, writ ref'd)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0398
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0398.pdf

Original opinion text

Best-effort transcription from a scanned PDF via OCR. Minor errors may remain; the linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

December 20, 1985

Overrules C-739

Honorable Morris Samford, Jr.
Panola County Attorney
Room 225, Courthouse
Carthage, Texas 75633

Opinion No. JM-398

Re: Reimbursement of county jail inmates for money lost to escaping prisoner

Dear Mr. Samford:

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 money retained by a county jail for safekeeping.

The legislature has provided that the sheriff is responsible for the operation of the jail and for the safekeeping of prisoners confined in the jail. Article 5116, V.T.C.S., provides, in part, that

(a) Each sheriff is the keeper of the jail of his county. He shall safely keep therein all prisoners committed thereto by lawful authority, subject to the order of the proper court, and shall be responsible for the safe keeping of such prisoners.

(b) The sheriff may appoint a jailer to take charge of the jail, and supply the wants of those therein confined; but in all cases the sheriff shall exercise a supervision and control over the jail.

Article 16.21 of the Code of Criminal Procedure states, in part, that

Every sheriff shall keep safely a person committed to his custody.

See also Attorney General Opinion H-1190 (1978).

The legislature also has provided that the "Commissioners Court shall provide safe and suitable jails for their respective counties," and that the jails shall comply with the rules and procedures of the Commission on Jail Standards. See V.T.C.S. art. 5115, as amended in 1975. While the sheriff is responsible for operating the jail to provide the safekeeping of prisoners, the "county is liable for all expenses incurred in the safekeeping of prisoners confined in the county jail," except that a county transferring a prisoner to another county is liable for such expenses for the transferred prisoner. See Acts 1985, 69th Leg., ch. 259, at 2340 (to be codified as Code Crim. Proc. art. 104.002). See also Alberti v. Sheriff of Harris County, Texas, 406 F.Supp. 649, 668 (S.D. Tex. 1975) (commissioners court has duty to maintain safe and suitable jail; sheriff has duty to keep safely prisoners in his custody).

Pursuant to the enactment of article 5115.1, V.T.C.S., in 1975, the Commission on Jail Standards promulgated rules and procedures relating to minimum standards for admission to and release from county jails which provide the following:

§265.6. Inmate File.

An individual file on each inmate shall be established on intake. A copy of all documents that purport to legally authorize the inmate's commitment shall become a part of the inmate's record, along with information obtained under §256.4 of this title (relating to Information about Inmates) and §256.5 of this title (relating to Health Tags).

§265.11. Inmate Property Checking.

If an inmate is not going to be released, the receiving officer shall carefully record and store such of the inmate's property as is taken from him and issue the inmate a receipt, signed by the receiving officer and the inmate, to be kept in the inmate's file pending release.

§269.1. Record System.

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

(1) a daily record of the number of inmates in the detention facility;

(2) a record on each inmate, including information obtained during admission, all classifications given him, personal property receipts, commitment instructions, transfer orders, release orders, date of booking and release, disciplinary actions, unusual occurrences, and any other information relating to the inmate's confinement;

(3) a record of receipts and expenditures of money for each inmate's account. . . . (Emphasis added).

37 Tex. Admin. Code, Part IX, §§265, 267, 269.

For the safety of inmates and to comply with jail standards, prisoners are not permitted to keep any money while confined in jail. All money remains in the custody of the sheriff where it may be deposited in an account that serves as a depository for all inmates' personal funds. Normally, a prisoner must purchase certain personal items, such as soap, prestamped envelopes, tobacco, etc., which frequently are purchased from a jail commissary. See 37 Tex. Admin. Code, Part IX, §§259.32, 259.132. See also Attorney General Opinion MW-143 (1980). Each inmate has a record that shows the receipts to and expenditures of money from his account, including debits for each purchase made at the commissary or made elsewhere for the inmate.

We believe that officials with the duty to operate a county jail impliedly contract with the inmates that the jail will repay the unused balance of their accounts on their release, thereby creating a relation analogous to 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 (Tex. 1941); City National Bank of Bryan v. Gustavus, 106 S.W.2d 262, 264 (Tex. 1937).

It is well settled that a county commissioners court has only the powers conferred either expressly or by reasonable implication by the constitution and statutes of the state. See Tex. Const. art. V, §18; Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Attorney General Opinion C-739 (1966). It is our opinion that, in order to provide safekeeping for prisoners confined in jail and to comply with the rules of the Commission on 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 retention and repayment of inmates' money is a necessary function and expense incurred by the county "in the safekeeping of prisoners confined in jail." As such, we conclude that 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 General Opinion JM-170 (1984).

In 1966, this office stated in Attorney General Opinion C-739 that it found no authorization for a county to reimburse prisoners of a county jail for cash belonging to prisoners which was taken from a county jail by escaping prisoners. 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 Commission on Jail Standards.

It has been suggested that the sheriff and his sureties are legally responsible for the reimbursement to prisoners whose 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 duties or wrongfully or negligently performs his duties. Hence, a sheriff could be liable for a loss that resulted from his negligence in keeping property in his custody. See V.T.C.S. arts. 5998 through 6003a; art. 6866. An action to recover damages may be brought against a sheriff and his bondsmen for a breach of his official duties, but sureties on a sheriff's bond are liable only for a violation of the conditions of their bond. See Lasater v. Waits, 68 S.W. 500, 501 (Tex. 1902); Jeff Davis County v. Davis, 192 S.W. 291, 294 (Tex. Civ. App. - El Paso 1917, writ ref'd). Cf. Hemphill County v. Adams, 406 S.W.2d 267, 272 (Tex. Civ. App. - Amarillo 1966), rev'd on other grounds, 408 S.W.2d 926; Browning v. Graves, 152 S.W.2d 515 (Tex. Civ. App. - Fort Worth 1941, writ ref'd).

The liability of a sheriff and his sureties for the sheriff's failure to faithfully perform his official duties involves fact questions which this office is not equipped to answer in the opinion process.

SUMMARY

The retention and repayment of inmates' money by the personnel of a county jail are a necessary function and expense incurred by the county in the safekeeping of prisoners confined in the jail. A county is responsible for the repayment of funds owed to inmates by the jail which are taken from the jail by an escaping prisoner.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General