Who controls a Texas jail commissary contract, the money it makes, and its books?

Texas AG Opinion DM-0067: Jail Commissary Contracts, Proceeds, and Audits

Plain-English summary

A district attorney asked three questions about a county jail commissary run under Local Government Code section 351.0415, where the sheriff had contracted with a third party to operate it. The statute lets the sheriff of a county under one million population operate, or contract for the operation of, a commissary for prisoners, gives the sheriff exclusive control of commissary funds, directs the sheriff to keep accounts of proceeds and disbursements, limits the purposes for which proceeds may be used, and gives the county auditor authority to examine the commissary accounts.

On the first question, the commissioners court had no authority over the terms and conditions of the contract. Although a sheriff generally cannot contract for the county (Anderson v. Wood), the Legislature here gave the sheriff express authority to enter a commissary contract, and the commissioners court could not control the sheriff's discretion in exercising it. The sheriff still had to act within the constitution and his statutory authority. A key constitutional limit was article III, section 51, which bars donating public funds or property, so the county had to receive an adequate quid pro quo (Dodson v. Marshall). The opinion noted that whether the particular lease (the operator provided television sets and paid 50 cents per square foot a year) satisfied that requirement was a fact question it could not resolve.

On the second question, the operator's payments to the sheriff were commissary proceeds. The opinion read section 351.0415 to mean that any money the sheriff receives that is attributable to the commissary operation must be used for the benefit of inmates.

On the third question, the county auditor could review the accounts even though the outside operator kept them. Subsection (d) directs the auditor to examine the jail commissary accounts at least quarterly, without advance notice, verify them, and report to the commissioners court. Together with the recordkeeping duty, that gave the auditor a right of access to records showing the money taken in and disbursed, and the auditor could not be denied access just because the operator maintained them. The auditor had no right, however, to inspect the operator's other records.

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. Local Government Code section 351.0415, including the population bracket and the permitted uses of commissary proceeds, has been amended since 1991. Verify current law before relying on anything here.

Common questions

Could the commissioners court dictate the terms of the sheriff's commissary contract?
Under this 1991 opinion, no. The Legislature gave the sheriff express authority to operate or contract out the commissary, and the commissioners court could not control the sheriff's discretion, though the sheriff still had to follow the constitution and statute.

Did the county still have to get something fair in return for the contract?
Yes. Because article III, section 51 bars donating public funds or property, the county had to receive an adequate quid pro quo. The opinion said whether a specific lease met that standard was a fact question outside the opinion process.

Were the operator's payments to the sheriff "commissary proceeds"?
Yes. The opinion concluded that any money the sheriff receives attributable to the commissary operation must be used for the benefit of inmates.

Could the county auditor audit accounts kept by the outside operator?
Yes. The opinion held the auditor was entitled to examine the commissary accounts even if the operator maintained them, but had no right to the operator's other records.

Background and statutory framework

Local Government Code section 351.0415 authorized the sheriff of a county under one million population to operate or contract for a jail commissary, run under Commission on Jail Standards rules. Subsection (b) gave the sheriff exclusive control of commissary funds and required commissary accounts of proceeds and disbursements; subsection (c) limited the use of proceeds; subsection (d) directed the county auditor to examine the accounts at least quarterly, without advance notice, and report to the commissioners court. The opinion drew on Anderson v. Wood (a sheriff generally cannot contract for the county) and Dodson v. Marshall (article III, section 51 requires an adequate quid pro quo), and on prior Attorney General Opinions DM-19 (1991), JM-1121 (1989), MW-439 (1982), MW-143 (1980), C-67 (1963), H-1190 (1978), and Letter Opinion LO-90-42 (1990).

Citations

Constitutional and statutory provisions:

• Local Government Code § 351.0415 (operation of a county jail commissary; funds, proceeds, and audit)
• Tex. Const. art. III, § 51 (prohibition on donating public funds or property)

Cases:

• Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941)
• Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. App.-Waco 1938, writ dism'd)

Prior Attorney General opinions referenced: DM-19 (1991), JM-1121 (1989), MW-439 (1982), MW-143 (1980), C-67 (1963), H-1190 (1978), and Letter Opinion LO-90-42 (1990).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0067
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0067.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

December 11, 1991

Honorable Travis S. Ware
Criminal District Attorney
Lubbock County
P.O. Box 10536
Lubbock, Texas 79408-3536

Opinion No. DM-67

Re: Operation of a jail commissary under section 351.0415 of the Local Government Code (RQ-148)

Dear Mr. Ware:

You ask several questions about the operation of a jail commissary under section 351.0415 of the Local Government Code. Section 351.0415(a) provides as follows:

The sheriff of a county with a population of under 1,000,000 according to the last federal census may operate, or contract with another person to operate, a commissary for the use of the prisoners committed to the county jail. The commissary must be operated in accordance with rules adopted by the Commission on Jail Standards.

The sheriff has exclusive control of the commissary funds and is to maintain commissary accounts showing the amount of proceeds from the commissary operation and the amount and purpose of disbursements made from the proceeds. Id. subsec. (b). Subsection (c) sets out the purpose for which the sheriff may use "commissary proceeds." The county auditor has authority to examine "jail commissary accounts." Id. subsec. (d). See generally Attorney General Opinions DM-19 (1991); JM-1121 (1989); MW-439 (1982); MW-143 (1980); C-67 (1963); Letter Opinion LO-90-42 (1990).

You describe a situation in which the sheriff has contracted with a third party for the operation of a jail commissary, and you ask several questions about the application of section 351.0415 in that context. Your first question is whether the commissioners court has any authority in regard to the terms and conditions of such a contract.

Generally, the sheriff does not have authority to contract for the county. Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941); Attorney General Opinion DM-19. In this case, however, the legislature has given the sheriff express authority to enter into a contract for the operation of a jail commissary. The commissioners court has no authority to control the sheriff's exercise of discretion in this regard. See generally Attorney General Opinions JM-1121 (1989); MW-439 (1982); H-1190 (1978). The sheriff must, of course, exercise his discretion in accordance with the constitution and with his statutory authority.

A significant limitation on the sheriff's authority to contract is the prohibition in article III, section 51, of the Texas Constitution on the donation of public funds or property. That provision does not prohibit the sheriff from contracting with a private party to operate a jail commissary, but it does require that the county obtain an adequate quid pro quo. Dodson v. Marshall, 118 S.W.2d 621, 624 (Tex. Civ. App.--Waco 1938, writ dism'd). You state that the lease in question requires the operator to provide television sets and to pay 50 cents per square foot annually for the space used to house the commissary. Whether this particular contractual arrangement satisfies article III, section 51, is a fact question, which we cannot resolve in the opinion process.

You also ask whether the operator's payments to the sheriff are "commissary proceeds" that must be used for the benefit of inmates. Section 351.0415 makes clear that any money the sheriff receives that is attributable to the operation of the commissary is to be used for the benefit of inmates. See generally Attorney General Opinion MW-439 at 4.

Your third question is whether the county auditor may review the accounts maintained by the commissary operator. Subsection (b) of section 351.0415 provides that the sheriff has exclusive control of the commissary funds and that the sheriff is to maintain commissary accounts showing the amount of proceeds from the commissary operation and the amount and purpose of disbursements made from the proceeds. Subsection (d) provides as follows:

At least once each quarter of a county's fiscal year, or more often if the county auditor desires, the auditor shall, without advance notice, fully examine the jail commissary accounts. The auditor shall verify the correctness of the accounts and report the findings of the examination to the commissioners court of the county at its next term beginning after the date the audit is completed.

Taken together, those provisions establish the county auditor's right of access to records showing the amount of money taken in by the commissary and the disbursements from that money. The county auditor cannot be denied access to such records, even if they are actually maintained by the commissary operator. The county auditor would have no right to inspect other records of the operator.

SUMMARY

The county commissioners court may not interfere with the sheriff's exercise of discretion in contracting for the operation of a jail commissary under section 351.0415 of the Local Government Code. Any funds the sheriff receives that are attributable to the operation of the commissary are to be used for the benefit of inmates in accordance with section 351.0415. The county auditor is authorized to review commissary accounts, even if the accounts are maintained by the operator of the commissary.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General