Can a Texas sheriff use the county jail commissary fund to pay for inmate job-training programs?

Plain-English summary

Robert Henneke, then the Kerr County Attorney, asked the Attorney General about how the county sheriff could spend the county jail commissary fund. The Kerr County Sheriff ran a work program in which inmates volunteer to labor for credit against their sentences, including an inmate garden overseen by Master Gardener volunteers. The county wanted to use commissary proceeds for two related projects: teaching inmates to build and maintain a water catchment system to irrigate the garden, and an apprenticeship program training inmates in energy-efficient, "green" construction skills tied to renovations at the jail. The question was whether either expenditure qualifies under Local Government Code section 351.0415(c).

The opinion laid out the statutory structure. The sheriff is the keeper of the county jail, may operate a commissary for the inmates, and has exclusive control of the commissary funds. Commissary proceeds may be spent only for the purposes the statute lists, which include funding a program that addresses inmates' social needs, such as an educational or recreational program, and funding physical plant improvements, technology, equipment, programs, services, and activities that provide for inmates' well-being, health, safety, and security. The commissary fund must be used to benefit the inmates, and a commissioners court may not use commissary proceeds to fund the jail's budgetary operating expenses.

On the specific projects, the opinion said the described expenditures appear to fall within the category of an educational program and the funding of equipment, programs, and services for inmate well-being. But it would not go further and declare them permissible as a matter of law on the facts presented. Because the sheriff has exclusive control of the fund and the duty to spend it only for statutory purposes, the opinion concluded that the sheriff makes the initial determination that a given program fits within section 351.0415(c). That determination is subject to judicial review under an abuse-of-discretion standard, drawing on case law recognizing a sheriff's power to make and enforce policy.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The county attorney who asked (as the opinion described it): The opinion told him the Attorney General would not rule the two programs in or out as a matter of law, and that the decision whether they fit section 351.0415(c) rested with the sheriff in the first instance, subject to court review.

The sheriff (as the opinion held for them): The opinion treated the sheriff as having exclusive control of the commissary fund and the authority to make the initial call that a program qualifies as a permitted expenditure, reviewable only for abuse of discretion.

Where the opinion stopped (as the opinion described it): The opinion expressly declined to conclude, on the facts alone, that the water-catchment project or the energy-efficiency apprenticeship qualified, so this page does not supply that determination.

Common questions

Can a Texas sheriff spend commissary money on inmate job training?
According to the opinion, the sheriff may spend commissary proceeds only for the purposes listed in section 351.0415(c), and the sheriff decides in the first instance whether a training program fits one of those purposes, subject to judicial review.

Did the Attorney General approve the water-catchment and apprenticeship programs?
No. The opinion said the expenditures appeared to fall within the statute's categories but declined to confirm that as a matter of law on the facts presented.

Who decides whether a commissary expenditure is allowed?
The opinion concluded the sheriff makes the initial determination, because the sheriff has exclusive control of the commissary fund, with that determination reviewable by a court under an abuse-of-discretion standard.

What can commissary funds be used for?
The opinion explained that proceeds may be used only for the statutory purposes, including programs addressing inmates' social, educational, and recreational needs and physical plant improvements and services for inmate well-being, health, safety, and security.

Background and statutory framework

The sheriff is the "keeper of the county jail," may operate a commissary for the inmates, and "has exclusive control of the commissary funds." Tex. Loc. Gov't Code Ann. § 351.041(a) (West 2005); id. § 351.0415(a); id. § 351.0415(b)(1). Section 351.0415(c) limits commissary spending to enumerated purposes, including programs addressing inmates' social needs and physical plant improvements and services for inmate well-being, health, safety, and security. Id. § 351.0415(c). The fund must be used to benefit the inmates, and a commissioners court may not use proceeds for the jail's budgetary operating expenses. Id. § 351.0415(g). The work program context is reflected in Code of Criminal Procedure article 43.10. Tex. Code Crim. Proc. Ann. art. 43.10 (West Supp. 2011).

Because the sheriff holds exclusive control of the fund and the statutory duty to spend it only for the listed purposes, the opinion concluded the sheriff makes the initial determination that a program qualifies, subject to judicial review for abuse of discretion. Fort Bend Cnty. Wrecker Ass'n v. Wright, 39 S.W.3d 421, 425-26 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (recognizing a sheriff's power to make and enforce rules, regulations, and policy).

Citations

Cases:

• Fort Bend Cnty. Wrecker Ass'n v. Wright, 39 S.W.3d 421, 425-26 (Tex. App.-Houston [1st Dist.] 2001, no pet.)

Statutes:

• Tex. Loc. Gov't Code Ann. § 351.041(a) (West 2005)
• Tex. Loc. Gov't Code Ann. § 351.0415(a) (West 2005)
• Tex. Loc. Gov't Code Ann. § 351.0415(b)(1) (West 2005)
• Tex. Loc. Gov't Code Ann. § 351.0415(c) (West 2005)
• Tex. Loc. Gov't Code Ann. § 351.0415(g) (West 2005)
• Tex. Code Crim. Proc. Ann. art. 43.10 (West Supp. 2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0901
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0901.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 22, 2011

The Honorable Robert Henneke Opinion No. GA-0901
Kerr County Attorney
County Courthouse, Suite BA-103 Re: Sheriff's use of the county jail commissary
700 Main Street fund to train inmates to perform certain activities
Kerrville, Texas 78028 (RQ-0981-GA)

Dear Mr. Henneke:

You inquire about a sheriff's use of the county jail commissary fund to train inmates to perform certain activities. Specifically, you ask:

1. Would a sheriff's expenditure of commissary proceeds to teach jail inmates to build and maintain a water catchment system to be used to irrigate the jail's inmate garden operated as part of the sheriff's work program qualify as a permitted expenditure pursuant to Tex. Local Gov't Code § 351.0415(c)?

2. Would a sheriff's expenditure of commissary proceeds to pay for training and materials for energy efficient renovations to the county jail in connection with an apprenticeship skills training program for inmates qualify as a permitted expenditure pursuant to Tex. Local Gov't Code § 351.0415(c)?[1]

Because the answers to your questions require a similar analysis in each case, we will discuss those questions together.

You describe the kind of program contemplated by the sheriff as follows:

The Kerr County Sheriff operates a work program whereby inmates volunteer to labor and receive credit from the county sentence they are serving ....[2]

The Kerr County Sheriff operates an inmate garden as part of this work program .... The Sheriff has recruited several certified "Master Gardeners" who volunteer their time overseeing the gardening and teaching inmates horticulture skills. . .. [The] Sheriff's garden program benefits the recreational, well-being, and health needs of the inmates who participate by allowing them to be outside and to be able to exercise through the work performed ....

Kerr County has a local business specializing in water catchment system construction that has expressed interest as part of an apprenticeship program. . .. The concept of this apprenticeship program would be to train and educate inmates in "green" technologies.

While the hands-on labor would be provided by participating inmates, Kerr County proposes to pay for the parts and materials, expertise of the local business to oversee the project, and training of the inmates by the local business out of commissary proceeds ....

Brief at 1-2 (citation omitted) (footnote added).

The sheriff of each county is the "keeper of the county jail." TEX. LOC. GOV'T CODE ANN. § 351.041(a) (West 2005). The sheriff or his designee "may operate, or contract with another person to operate, a commissary for the use of the inmates committed to the county jail." Id. § 351.0415(a). The sheriff or his designee "has exclusive control of the commissary funds." Id. § 351.0415(b)(1). See generally Tex. Att'y Gen. Op. No. GA-0814 (2010). Commissary proceeds may be used only to do the following, in relevant part:

(1) fund, staff, and equip a program addressing the social needs of the inmates, including an educational or recreational program and religious or rehabilitative counseling; ... or

(5) fund 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.

TEX. LOC. GOV'T CODE ANN. § 351.0415(c) (West 2005). Thus, pursuant to the terms of section 351.0415(a), "the commissary fund must be used to benefit inmates of the county jail." Tex. Att'y Gen. Op. No. GA-0791 (2010) at 2. Moreover, a commissioners court "may not use commissary proceeds to fund the budgetary operating expenses of a county jail." TEX. LOC. GOV'T CODE ANN. § 351.0415(g) (West 2005).

As you indicate, while the control of commissary funds is well established, "interpretation of what commissary profits and proceeds may be spent for remains undeveloped." Brief at 3. The Sheriff who is the subject of your request "asserts that its proposed apprenticeship program meets the criteria of TEX. LOCAL GOV'T CODE § 351.0415(c) so as to authorize expenditure of commissary proceeds to pay for the parts, material, and training for the 'green' projects and energy efficient skills to be taught to jail inmates." Brief at 4. Furthermore, he declares that such "programs would be educational for the inmates [and] provide programs and services providing for the well-being and health of the inmates ... to (1) earn credit towards their sentence through the sheriff's work program ... ; (2) learn a job skill applicable once released; and (3) enjoy the benefit of exercise through productive work." Id.

The described expenditures appear to fall within the category of an "educational program," as well as the funding of "equipment, programs, services, and activities that provide for the well-being, health, safety, and security of the inmates of the facility." However, based solely on the facts presented in your request, we cannot so conclude as a matter of law. Because the Sheriff has exclusive control of the commissary funds, and specific authority to "use commissary proceeds only" for statutory purposes, we conclude that the Sheriff is authorized to initially determine that these programs fall within the ambit of section 351.0415(c), subject to judicial review of the Sheriff's determination under an abuse of discretion standard. Cf. Fort Bend Cnty. Wrecker Ass'n v. Wright, 39 S.W.3d 421, 425-26 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (concluding that a sheriff "has the power to make and enforce rules, regulations, and policy").

SUMMARY

A county sheriff controls the county jail commissary fund, and as a result, the sheriff must make the initial determination, subject to judicial review, as to whether proceeds from the fund may be used for particular purposes. The proceeds may be used only to fulfill one of the five purposes described in section 351.0415(c) of the Local Government Code.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter and Brief from Honorable Robert Henneke, Kerr County Attorney, to Honorable Greg Abbott, Attorney General of Texas (June 24, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter" and "Brief" respectively).

[2] See TEX. CODE CRIM. PROC. ANN. art. 43.10 (West Supp. 2011).