One or two of our Commissioners like to "check out" prisoners (volunteers) for a day for work details like clearing brush. Would the Commissioner or the County be liable in case a prisoner was injured?

If your commissioners are "checking out" the inmates pursuant to a community service or work program established under chapter 42 of the Code of Criminal Procedure (e.g., in assisting the county road & bridge department), neither the county nor the commissioner would be liable so long as the act or omission at issue was performed in an official capacity and was not performed with conscious indifference to the safety of others. Tex. Code Crim. Proc. Ann. art. 42.20(a), (c)(3) (Vernon Supp. 2002); see also City of Lubbock v. Land, 33 S.W.3d 357, 359-60 (Tex. App.--Amarillo 2000, no pet.). Of course, jailhouse lawyers are well-known to have a penchant for fermenting a claim under 42 U.S.C. � 1983 out of facts that we myopic lawyers would see as constituting negligence at worst. In that case (assuming the inmate can show a constitutional injury), liability will flow to the individual commissioner unless there is a county policy adopted with objective deliberate indifference which was the "moving force" behind the injury. If the inmate proceeds under traditional negligence theory (that is, the program can't be squeezed into chapter 42 of the Code of Criminal Procedure), is able to properly plead his case against the county and/or overcome any official immunity defense asserted by the commissioner, liability probably would run to the county (either directly under the Tort Claims Act or, permissively, under the indemnification provisions of chapter 102 of the Civil Practice and Remedies Code; but see Op. Tex. Att'y Gen. No. JM-1276 (1990) (county not authorized to pay for defense of commissioner sued as ex-officio director of road district)).

You ask a simple question and look what happens a guy tells you how to build a watch. However, he correctly describes how to do so.

I'm no watchmater, only a prosecutor. It strikes me that the public might not look favorably on commissioners relying on their own discretion to take prisoners from the county jail and use them for community service projects, however noble the intent. Such individualized decisions inevitably lead to at least the appearance of abuse and make federal judges very nervous.

As mentioned in the previous posting, the legislature intended for the sheriff to adopt such policies and carry them out. Commissioners are not jailers and should be careful about exercising decision-making in that area.

Guys, thanks for the responses!