Where does money from inmate pay phones in a Texas county jail go?

Texas AG Opinion DM-0019: Inmate Pay-Phone Money Is Not Commissary Revenue, So It Goes to the County Treasurer

Plain-English summary

A county attorney asked where the money from pay telephones in the county jail should go. The sheriff was collecting it, and the question was whether it counted as jail-commissary money, which a sheriff controls under a special statute, or ordinary county money, which has to be turned over to the county treasurer.

The Attorney General concluded it was ordinary county money. The general rule is that county officers pay over county money, from whatever source, to the county treasurer, and the commissioners court decides how county funds are allocated. There is an exception in Local Government Code section 351.0415 for a jail commissary: in certain counties the sheriff may run a commissary, has exclusive control of its funds, and may spend them only for listed purposes. So everything turned on whether "commissary" in that statute includes pay telephones. The Attorney General said it does not. The term first appeared in the rules of the Commission on Jail Standards, and section 351.0415 was enacted to clarify those rules, so the rules were the right place to look. Those rules list inmate privileges by category, and they have treated telephone privileges and commissary privileges as separate categories since 1976. That separation showed the commission, and the legislature, did not understand "commissary" to cover pay telephones. The result: pay-phone proceeds are not section 351.0415 funds, and the sheriff must pay them to the county treasurer.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Local Government Code commissary provisions and the Commission on Jail Standards rules cited here have been amended since 1991. Verify current law before relying on any specific rule or citation mentioned here.

Common questions

Who controls money from inmate pay phones in a Texas county jail?
Under this opinion, the county does, through the county treasurer. The Attorney General concluded pay-phone proceeds are not commissary funds the sheriff controls, so they follow the general rule that county money goes to the treasurer.

Why isn't pay-phone money part of the jail commissary?
Because the Commission on Jail Standards rules, which the commissary statute was meant to clarify, list telephone privileges and commissary privileges as separate categories, and had done so since 1976. That showed "commissary" was not understood to include pay telephones.

Background and statutory framework

Two general rules framed the question: county officers must pay county money from any source to the county treasurer (Local Government Code sections 113.003 and 113.021), and the commissioners court controls allocation of county funds. Local Government Code section 351.0415, enacted in 1989, carved out the jail commissary, letting sheriffs in certain counties operate a commissary under Commission on Jail Standards rules, with exclusive control of commissary funds limited to specified uses. The opinion traced the history of jail-commissary authority through prior opinions (C-67 in 1963, MW-143 in 1980, MW-439 in 1982, JM-1121 in 1989) and noted that section 351.0415 codified the rule that commissary proceeds benefit inmates while authorizing the sheriff to contract for the commissary. Because "commissary" originated in the commission's rules, the opinion looked there for its scope. The rules contained no definition (37 T.A.C. section 253.1) but separated telephone privileges from commissary privileges in the inmate-privileges rules (37 T.A.C. chapter 291), a separation in place since 1976. From that, the opinion concluded pay-phone proceeds fall outside section 351.0415 and must go to the county treasurer.

Citations

Statutory and regulatory provisions:

• TEX. LOCAL GOV'T CODE ANN. §§ 113.003, 113.021 (county money paid to treasurer)
• TEX. LOCAL GOV'T CODE ANN. § 351.0415 (jail commissary)
• TEX. CODE CRIM. PROC. ANN. art. 102.007 (hot check fund)
• V.T.C.S. art. 5116 (sheriff responsible for jail operation)
• 37 T.A.C. §§ 253.1, 291.1 and ch. 291 (Commission on Jail Standards inmate-privilege rules)

Cases:

• Weber v. City of Sachse, 591 S.W.2d 563 (Tex. Civ. App.—Dallas 1979, no writ)
• Anderson v. Wood, 152 S.W.2d 1054 (Tex. 1941)

Prior opinions referenced: Attorney General Opinions C-67 (1963), MW-143 (1980), MW-439 (1982), JM-1121 (1989).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0019
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0019.pdf

Original opinion text

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

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

April 24, 1991

Honorable D. C. Jim Dozier
County Attorney
Montgomery County Courthouse
Conroe, Texas 77301

Opinion No. DM-19

Re: Disposition of proceeds generated by inmates' use of pay telephones in a county jail (RQ-2)

Dear Mr. Dozier:

You ask about the proper disposition of proceeds from pay telephones in the county jail. As a general rule, county officers are to pay over county money, from whatever source derived, to the county treasurer. Local Gov't Code §§ 113.003, 113.021. Another general rule is that allocation of county funds is within the discretion of the commissioners court. Weber v. City of Sachse, 591 S.W.2d 563 (Tex. Civ. App.—Dallas 1979, no writ); Anderson v. Wood, 152 S.W.2d 1054, 1086 (Tex. 1941) (holding that article 5116, V.T.C.S., which makes sheriff responsible for operation of jail, gives sheriff no authority to contract for county independent of commissioners court); see Code Crim. Proc. art. 102.007 (hot check fund expendable at discretion of attorney responsible for the fund).

You bring to our attention, however, a specific statute that governs proceeds from a jail commissary. Local Gov't Code § 351.0415. That provision authorizes sheriffs in certain counties to operate a jail commissary. Id. subsec. (a). The commissary must be operated in accordance with rules adopted by the Commission on Jail Standards. Id. The sheriff has exclusive control of commissary funds, but may expend them only for specified purposes. Id. subsecs. (b), (c). You ask whether proceeds from pay telephones at the county jail are governed by section 351.0415. Such proceeds would be governed by that section only if the legislature intended pay telephones to be part of the commissary. To understand what the legislature intended to encompass by the use of the term "commissary" in section 351.0415, it is helpful to review past attorney general opinions in regard to the authority of a sheriff to operate a jail commissary.

Attorney General Opinion C-67 (1963) considered the legality of the operation of a jail commissary. The opinion noted that although there was no statutory authority for a jail "commissary," a sheriff's authority to supply the "wants" of inmates authorized him to provide toilet articles and other personal items to inmates at cost. In Attorney General Opinion MW-143 (1980) this office again considered whether a county jail could operate a commissary. The opinion pointed out that in 1975 the legislature had created the Commission on Jail Standards to establish minimum standards for construction and operation of county jails and for the care of prisoners, and that the commission had promulgated a rule requiring a county jail to provide a commissary or to conduct a program allowing inmates to obtain supplies. Acts 1975, 64th Leg., ch. 480, at 1278. This office held that the creation of the commission and the commission's promulgation of a rule regarding commissaries gave a sheriff authority to operate a commissary. The opinion added that proceeds from the commissary were to be used for the benefit of the inmates. A subsequent opinion stated that a sheriff had no independent right to contract for a jail commissary. Attorney General Opinion MW-439 (1982).

In enacting section 351.0415 in 1989, the legislature codified and gave detail to the conclusion in Attorney General Opinion MW-143 that proceeds from a jail commissary were to be devoted to the benefit of jail inmates. Acts 1989, 71st Leg., ch. 980, at 4056. It also changed the result of Attorney General Opinion MW-439 by authorizing a sheriff to contract for the jail commissary. See generally Attorney General Opinion JM-1121 (1989) (sheriff may make purchases for jail commissary without consulting county purchasing agent). Of most significance to your question is the fact that section 351.0415 specified that a jail commissary is to be operated in accordance with rules adopted by the Commission on Jail Standards. Local Gov't Code § 351.0415(a). Because the term "commissary" initially appeared in the rules of the Commission on Jail Standards and because section 351.0415 was apparently enacted to clarify the application of those rules, the rules of the commission are an appropriate source to rely on in determining the scope of the term "commissary" in section 351.0415.

The rules of the commission do not contain a definition of "commissary." See 37 T.A.C. § 253.1 (definitions). The commission's rules regarding inmate privileges in county jails, however, clarify the commission's use of the term. 37 T.A.C. ch. 291. A jail's written plan for inmate privileges is to cover inmate privileges in a number of different areas. Id. Telephone privileges and commissary privileges are treated as separate categories. 37 T.A.C. § 291.1(1), (3).[1] That categorization indicates that the commission did not understand the term "commissary" to include pay telephones. Therefore, proceeds from pay telephones in county jails are not governed by section 351.0415 of the Local Government Code. Any proceeds the sheriff receives should be paid to the county treasurer.

SUMMARY

Proceeds from pay telephones in county jails are not governed by section 351.0415 of the Local Government Code and should be paid to the county treasurer.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

[1] Telephone privileges and commissary privileges have been listed as separate categories since a rule regarding inmate privileges was first adopted in 1976. 1 Tex. Reg. 3599 (1976).