Who controls the money a Texas county jail commissary brings in, and does the interest it earns go to the county general fund?

TX AG Opinion GA-0791: Who controls a county jail commissary fund, and where does its interest go?

Plain-English summary

The Aransas County Attorney asked two related questions about money the county jail commissary brings in. A jail commissary is the in-jail store where inmates buy snacks, hygiene items, and similar goods. Local Government Code section 351.0415 lets the sheriff (or a designee) run it for the use of inmates. The county had been depositing the commissary proceeds with the county treasurer, treating them like other county money under section 113.021, and since about February 2008 had been routing the interest on that account into the county general fund. The county attorney saw a possible conflict between section 113.021, which governs money "belonging to a county," and section 351.0415, which gives the sheriff "exclusive control" of commissary funds. He asked whether the commissary proceeds are actually county funds, and whether the interest belongs to the county or to the commissary fund.

The Attorney General concluded the commissary proceeds are not funds belonging to the county under section 113.021(a). Three features of section 351.0415 drove that conclusion. First, the statute requires the proceeds to be spent only to benefit jail inmates (educational and recreational programs, counseling, clothing and hygiene supplies, libraries, facility improvements for inmate well-being, and the cost of running the commissary), so the money is held for a specific group rather than the county at large, and a commissioners court may not even use it for the jail's budget. Second, the sheriff must keep separate commissary accounts, distinct from the accounts the county auditor maintains for money that belongs to the county. Third, the statute gives the sheriff "exclusive control" of the funds, a term the opinion read in its plain sense of authority vested in one person alone. Taken together, these provisions mean the sheriff keeps custody of the commissary fund rather than depositing it with the county treasurer under section 113.021(a).

On the interest question, the opinion applied the common-law rule that interest follows principal unless it is lawfully separated. Section 113.021(c) does separate interest, but only from money that belongs to the county, sending that interest to the county for its benefit. Because commissary proceeds do not belong to the county, the statute never severs their interest, so the interest stays with the commissary fund. The practical effect was that the county should not have been sweeping the commissary account's interest into the general fund.

Currency note

This opinion was issued in 2010. 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.

Local Government Code sections 351.0415, 113.021, and the related county-auditor provisions, along with the Jail Standards Commission rule, may have been amended since 2010. Confirm the current statutes and rules before relying on anything below.

Who this opinion affected (as of 2010)

County sheriffs: The opinion confirmed that they hold exclusive control of jail commissary proceeds, keep the funds in separate commissary accounts, and are not required to deposit them with the county treasurer as county money.

County treasurers and commissioners courts: The opinion told them commissary proceeds are not county funds, so the interest those proceeds earn was not theirs to route into the general fund, and the commissioners court could not use commissary money for the jail's operating budget.

County auditors: The opinion left intact the auditor's duty to examine the sheriff's commissary accounts at least annually, while clarifying that the underlying money does not belong to the county.

Jail inmates: The opinion reinforced that commissary proceeds, including the interest, stay in a fund the law dedicates to inmate benefit rather than being diverted to general county use.

Common questions

Does jail commissary money belong to the county?
No. The opinion concluded commissary proceeds are not funds "belonging to the county" under section 113.021(a), because section 351.0415 dedicates them to inmate benefit, requires separate accounts, and gives the sheriff exclusive control.

Who decides how commissary money is spent?
The sheriff, within limits. Section 351.0415 vests exclusive control in the sheriff but restricts spending to the inmate-benefit purposes the statute lists, and a commissioners court may not use the proceeds for the jail's budget.

Where does the interest on the commissary account go?
It stays with the commissary fund. Interest follows principal unless lawfully separated, and section 113.021(c) separates interest only from money that belongs to the county. Since commissary proceeds are not county money, their interest is not severed.

Does the county auditor still review the commissary?
Yes. The opinion noted the auditor must examine the commissary accounts at least annually when the sheriff supervises the jail, even though the money is not county money.

Background and statutory framework

Local Government Code section 351.0415 authorizes a sheriff or designee to operate a jail commissary, gives the sheriff "exclusive control of the commissary funds," requires commissary accounts showing proceeds and the amount and purpose of disbursements, and limits use of proceeds to the inmate-benefit purposes in subsection (c); subsection (g) bars a commissioners court from using proceeds for the jail's budgetary operating expenses (Tex. Loc. Gov't Code Ann. § 351.0415(a)-(d), (g) (Vernon 2005); 37 Tex. Admin. Code § 291.3 (2010)). Section 113.021 directs that fees, commissions, funds, and other money "belonging to a county" be deposited with the county treasurer, and provides that interest on money in that special fund is for the benefit of the county (Tex. Loc. Gov't Code Ann. § 113.021(a)-(c) (Vernon 2008)).

The opinion reasoned that not all funds a county officer holds in an official capacity belong to the county. The proceeds are held for the benefit of inmates; the sheriff keeps separate accounts distinct from those the auditor keeps for county money under section 112.005(a); and "exclusive control" means authority vested in one person alone (Kinnard v. Circle K Stores, Inc., 966 S.W.2d 613, 617 (Tex. App.—San Antonio 1998, no pet.); see Tex. Gov't Code Ann. § 311.011 (Vernon 2005); Mills v. State, 941 S.W.2d 204, 206, 208 (Tex. App.—Corpus Christi 1996, pet. ref'd)). A prior opinion, JC-0122, had already treated the commissary fund as outside "county funds" for some purposes, concluding the sheriff's purchases were not subject to the County Purchasing Act. From this, the opinion concluded commissary proceeds are not funds belonging to the county under section 113.021(a).

On interest, Texas courts follow the rule that interest follows principal and becomes part of the principal fund unless lawfully separated (Phillips v. Washington Legal Found., 524 U.S. 156, 165-66 (1998); Sellers v. Harris County, 483 S.W.2d 242, 243 (Tex. 1972); Lawson v. Baker, 220 S.W. 260, 272 (Tex. Civ. App.—Austin 1920, writ ref'd)). Section 113.021(c) separates interest only from money belonging to the county, so the interest on commissary proceeds is not severed and remains with the commissary fund.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. §§ 351.0415(a), (b)(1)-(2), (c), (d), (e), (g) (Vernon 2005)
• Tex. Loc. Gov't Code Ann. §§ 113.021(a), (b), (c), 112.005(a), 112.002, 115.901(a) (Vernon 2008)
• Tex. Gov't Code Ann. § 311.011 (Vernon 2005)
• 37 Tex. Admin. Code § 291.3 (2010)

Cases:

• Mills v. State, 941 S.W.2d 204 (Tex. App.—Corpus Christi 1996, pet. ref'd)
• Kinnard v. Circle K Stores, Inc., 966 S.W.2d 613 (Tex. App.—San Antonio 1998, no pet.)
• Phillips v. Washington Legal Found., 524 U.S. 156 (1998)
• Sellers v. Harris County, 483 S.W.2d 242 (Tex. 1972)
• Lawson v. Baker, 220 S.W. 260 (Tex. Civ. App.—Austin 1920, writ ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0791
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0791.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

August 23, 2010

The Honorable Richard P. Bianchi
Aransas County Attorney
301 North Live Oak Street
Rockport, Texas 78382

Opinion No. GA-0791

Re: Use and management of a county jail commissary fund under Local Government Code section 351.0415 (RQ-0841-GA)

Dear Mr. Bianchi:

You request an opinion about the use and management of funds generated by the operation of the Aransas County jail commissary (the "commissary"). Local Government Code section 351.0415 authorizes a sheriff or the sheriff's designee to operate a commissary for the use of inmates in the county jail. See TEX. LOC. GOV'T CODE ANN. § 351.0415(a) (Vernon 2005); 37 TEX. ADMIN. CODE § 291.3 (2010) (Tex. Comm'n on Jail Standards, Inmate Commissary Plan). The sheriff or his designee "has exclusive control of the commissary funds" and must maintain accounts "showing the amount of proceeds from the commissary operation and the amount and purpose of disbursements made from the proceeds." TEX. LOC. GOV'T CODE ANN. § 351.0415(b)(1)-(2) (Vernon 2005). Commissary proceeds may be used only for the purposes set out in subsection 351.0415(c), which include the costs of operating the commissary and various programs to benefit inmates. See id. § 351.0415(c). [Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov). The commissary funds you inquire about are the proceeds generated by the operation of the jail commissary, not the inmate's personal funds taken from him upon admission, earned while in jail, or received from others and placed in an account for the inmate's use. See Tex. Att'y Gen. Op. No. GA-0534 (2007) at 1-2 (describing inmate's account).]

You state that funds generated from the Aransas County jail commissary have been deposited with the county treasurer in reliance on Local Government Code section 113.021, and the interest on the commissary fund account has been deposited into the county general fund since approximately February of 2008. Request Letter at 1. Section 113.021 reads in part:

(a) The fees, commissions, funds, and other money belonging to a county shall be deposited with the county treasurer by the officer who collects the money. . . .

(b) The county treasurer shall deposit the money in the county depository in a special fund to the credit of the officer who collected the money. . . .

(c) The interest accruing on the money in the special fund is for the benefit of the county in accordance with other law.

TEX. LOC. GOV'T CODE ANN. § 113.021 (Vernon 2008).

You suggest that there is a conflict between the requirements of section 113.021 and the sheriff's "exclusive control of the commissary funds" under section 351.0415. Request Letter at 1-2. You wish to know whether the proceeds of the commissary operation are "funds belonging to the county" within Local Government Code section 113.021. Id.

Not all funds held by a county officer in his or her official capacity are funds "belong[ing] to the county." See Tex. Att'y Gen. Op. Nos. GA-0704 (2009) at 1-2 (stating that Local Government Code section 115.901(a) authorizes the county auditor to examine the accounts of county officers, whether or not they relate to money belonging to the county); JM-1263 (1990) at 2-3 n.2 (stating that Local Government Code section 112.001 does not authorize a county auditor to adopt regulations with respect to funds and fees that do not belong to the county). We consider whether the commissary fund is a fund "belonging to a county" within the meaning of section 113.021. TEX. LOC. GOV'T CODE ANN. § 113.021 (Vernon 2008).

First, pursuant to the express terms of section 351.0415(c), the commissary fund must be used to benefit inmates of the county jail. See id. § 351.0415(c) (Vernon 2005); see also Tex. Att'y Gen. Op. No. MW-143 (1980) at 2 (stating that all profits from operating a jail commissary must be spent for the "benefit, education, and welfare" of jail inmates). Thus, the proceeds from operating the commissary are funds held by the sheriff for the benefit of a specific group of persons. [Footnote 2: Commissary proceeds may be used only for an educational or recreational program and religious or rehabilitative counseling; clothing, writing materials, and hygiene supplies for inmates; an educational and a law library for use of inmates; funding physical plant improvements, technology, equipment, programs, services, and activities that provide for the well-being, health, safety, and security of the inmates and the facility; and the expenses of operating the commissary. TEX. LOC. GOV'T CODE ANN. § 351.0415(c) (Vernon 2005). "A commissioners court may not use commissary proceeds to fund the budgetary operating expenses of a county jail." Id. § 351.0415(g).]

Second, the sheriff or his designee "shall maintain commissary accounts showing the amount of proceeds from the commissary operation and the amount and purpose of disbursements made from the proceeds." TEX. LOC. GOV'T CODE ANN. § 351.0415(b)(2) (Vernon 2005); see also Mills v. State, 941 S.W.2d 204, 206 (Tex. App.—Corpus Christi 1996, pet. ref'd) (stating that the county auditor met with the sheriff to explain accounting procedures and record keeping for the proposed jail commissary). In contrast, the county auditor ordinarily maintains "an account for each county, district, or state officer authorized or required by law to receive or collect money . . . that is intended for the use of the county or that belongs to the county." TEX. LOC. GOV'T CODE ANN. § 112.005(a) (Vernon 2008); see also id. § 112.002 (authorizing the county auditor to regulate collection and accounting of funds that belong to the county). The sheriff is thus authorized to maintain commissary accounts, just as a justice of the peace is authorized to place restitution on a hot check in a separate bank account not subject to the county auditor's regulation, because the restitution does not belong to the county but to the holder of the dishonored check. See Tex. Att'y Gen. Op. No. DM-396 (1996) at 4. [Footnote 3: The county auditor must examine the commissary accounts at least annually if the sheriff supervises the jail. See TEX. LOC. GOV'T CODE ANN. § 351.0415(d) (Vernon 2005). A private vendor operating a detention facility must have the commissary accounts examined by an independent auditor at least annually. See id. § 351.0415(e); see also Tex. Att'y Gen. Op. No. GA-0704 (2009) at 1-2 (concluding that Local Government Code section 115.901(a) requires the auditor to examine all accounts held by the sheriff in his official capacity, not merely county records held by the sheriff).]

Third, section 351.0415 expressly grants the sheriff or his designee "exclusive control" of the commissary funds. TEX. LOC. GOV'T CODE ANN. § 351.0415(b)(1) (Vernon 2005). We give the term "exclusive control" its plain meaning. See TEX. GOV'T CODE ANN. § 311.011 (Vernon 2005). The term "exclusive" has been defined as "vested in one person alone." See Kinnard v. Circle K Stores, Inc., 966 S.W.2d 613, 617 (Tex. App.—San Antonio 1998, no pet.). This office has defined "control" for purposes of Local Government Code section 351.0415 as "the function or power of directing and regulating; domination, command, sway." Tex. Att'y Gen. Op. No. JC-0122 (1999) at 4. Thus, the authority to direct and regulate the commissary fund is vested solely in the sheriff, subject to the limits found in section 351.0415. See TEX. LOC. GOV'T CODE ANN. § 351.0415(b)(1) (Vernon 2005); see also Mills, 941 S.W.2d at 208 (stating that commissary proceeds are "maintained by the Sheriff's Department").

This office determined in Attorney General Opinion JC-0122 that purchases from jail-commissary proceeds are not subject to the competitive procurement requirements in the County Purchasing Act, Local Government Code chapter 262, subchapter C (the "Act"). See Tex. Att'y Gen. Op. No. JC-0122 (1999) at 4. The opinion, noting that the Act applied only to purchases by the commissioners court, concluded that the sheriff's "exclusive control" of the commissary funds meant that his or her purchases from jail commissary proceeds were not subject to the Act. See id. (citing Texas Local Government Code section 351.0415). In reaching its conclusion, Attorney General Opinion JC-0122 stated that the fund created by Local Government Code section 351.0415 appeared "to be outside of 'county funds' for some or all purposes." Id. at 3; see Tex. Att'y Gen. Op. Nos. GA-0364 (2005) at 6 (constable may retain a fee for delivering a notice to vacate premises); DM-396 (1996) at 3 (restitution on a dishonored check made to a justice of the peace belongs to the holder of the dishonored check and does not belong to the county); see also Tex. Att'y Gen. Op. No. JC-0062 (1999) at 2 (fees collected by a prosecutor for processing "hot checks" are "money belonging to the county" within Local Government Code section 113.021(c)). In our opinion, the sheriff's "exclusive control" of the commissary fund also means that the sheriff retains custody of the fund instead of having to deposit it with the county treasurer pursuant to section 113.021(a).

You also ask whether the interest accruing on the commissary fund belongs to the county or to the commissary fund. Request Letter at 1. Texas courts follow the common-law rule that interest follows principal. See Phillips v. Washington Legal Found., 524 U.S. 156, 165-66 (1998); Sellers v. Harris County, 483 S.W.2d 242, 243 (Tex. 1972); Lawson v. Baker, 220 S.W. 260, 272 (Tex. Civ. App.—Austin 1920, writ ref'd). As the Texas Supreme Court has stated, "[i]nterest . . . is an increment that accrues" to the principal fund earning it and, unless lawfully separated from the principal, becomes part of the principal. Sellers, 483 S.W.2d at 243. Section 113.021(c), in providing that the interest on "money belonging to a county" will be "for the benefit of the county," separates interest from the principal of money that belongs to the county. See TEX. LOC. GOV'T CODE ANN. § 113.021(a), (c) (Vernon 2008). Because we have concluded that commissary proceeds are not funds "belonging to a county" under section 113.021(a), any interest earned on these proceeds would not be severed from principal pursuant to section 113.021(c) and would instead remain part of the commissary fund. Accordingly, interest on the commissary fund remains with the fund.

SUMMARY

Local Government Code section 351.0415 grants the sheriff exclusive control of funds generated by the operation of a jail commissary, requires the sheriff to maintain commissary accounts, and provides that commissary proceeds may be used only to benefit inmates of the county jail. Commissary proceeds are not funds "belonging to the county" under Local Government Code section 113.021(a).

Texas courts follow the common-law rule that interest follows principal unless lawfully separated from the principal. Section 113.021 separates interest from funds "belonging to the county" and allocates it to the county general fund. Because the commissary fund is not a fund "belonging to the county," interest remains with the commissary fund.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee