Can a Texas county offer internet (VoIP) phone service to county jail inmates, and can it make money from it?

Plain-English summary

Cameron County Auditor Martha Galarza asked the Attorney General whether a Texas county may provide voice-over-Internet (VoIP) local and long-distance phone service to inmates in its jail, and, if so, whether there are limits on profiting from the service or on how any money it generates can be spent. The AG answered in general terms, because the request did not say exactly how the county would provide the service or whether it would use a private vendor.

On the first question, the AG started from the rule that a commissioners court has only the powers the Texas Constitution and statutes give it, but that where the law imposes a duty on the court it has broad discretion to carry the duty out. The Legislature requires county commissioners to provide safe and suitable jails, and each jail must follow the Commission on Jail Standards rules. Those rules require a written inmate telephone plan giving inmates reasonable access to local and long-distance calls, and a free local call for inmates who otherwise could not complete the two calls allowed right after booking. Beyond that, the Commission has not dictated how a jail provides phone service. Local Government Code section 132.007 separately lets a county deliver any legally authorized service through the Internet. Putting those together, the AG concluded that no statute or rule bars a county from offering VoIP service to inmates, so a county may do it, as long as the service satisfies the Commission's requirements and any other applicable state and federal regulations.

On the second question, the AG laid out the limits on charging for the service. When a county provides a service through the Internet, section 132.007(c) lets it charge a fee only if the fee is designed to recover the costs it directly and reasonably incurs, and only if the county's governing body decides Internet access would not be feasible without the charge. The Commission's "reasonable access" standard adds another layer: the AG noted a court could treat the cost of a call as part of whether access is reasonable, so the county should keep its costs reasonable. The AG also pointed out that the FCC had recently moved to cap interstate long-distance rates for prison and jail inmates, which would limit any charge a county imposes. Finally, drawing on an earlier opinion, the AG concluded that whatever revenue an inmate telephone contract does produce within those limits is county funds and may be used for any legitimate county purpose.

Currency note

This opinion was issued in 2014. 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. Federal regulation of inmate calling rates in particular has changed since 2014, so do not rely on the FCC rate-cap description here as a statement of current federal law.

What the opinion meant for those who asked

Cameron County and its Auditor (as the opinion described it): The opinion told the county that it could provide VoIP phone service to jail inmates, that the service had to meet the Commission on Jail Standards rules and other applicable regulations, that any fee was limited to cost recovery under section 132.007(c), and that any proceeds were county funds usable for any legitimate county purpose.

Commissioners courts and jail administrators (as the opinion described it): The opinion described the duty to provide safe and suitable jails and to comply with the inmate-telephone-plan rules, which require reasonable access to local and long-distance calls plus a free local call for inmates who cannot otherwise complete the two post-booking calls, while leaving the method of providing service to the county's discretion.

Inmates and their families (as the opinion described it): The opinion described the jail rules as guaranteeing reasonable access to local and long-distance phone use and a free local call in defined circumstances, and noted that call costs factor into whether access is reasonable and that the FCC had moved to cap interstate inmate-calling rates.

Common questions

Can a Texas county set up VoIP phone service for jail inmates?
Yes, according to the AG. No Texas statute or jail rule expressly prohibits it, and Local Government Code section 132.007 lets a county provide authorized services through the Internet, so long as the service meets the Commission on Jail Standards requirements and other applicable regulations.

Can the county charge inmates for calls, or make a profit?
The AG said a county may charge a fee only to recover the costs it directly and reasonably incurs, and only if its governing body decides Internet access would not be feasible without the charge. The "reasonable access" jail standard and, at the time, the FCC's move to cap interstate inmate rates further limited charges.

What happens to the money the phone service brings in?
The AG concluded that any proceeds generated from an inmate telephone contract are county funds and may be used for any legitimate county purpose.

Does the jail have to provide any free calls?
Yes. The AG noted the Commission's rules require a free local call for inmates who otherwise could not complete the two calls an inmate is permitted immediately after booking.

Background and statutory framework

The Utilities Code defines VoIP service as one that uses Internet Protocol to enable real-time, two-way voice communication, requires a broadband connection at the user's location, and generally lets a user receive and place calls on the public switched telephone network (Tex. Util. Code Ann. § 51.002(13) (West Supp. 2013)). A commissioners court has only the powers conferred by the Constitution and statutes (Tex. Const. art. V, § 18; Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948)), but where a duty is imposed it has implied authority and broad discretion to accomplish it (Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)).

Counties must provide safe and suitable jails (Tex. Loc. Gov't Code Ann. § 351.001(a) (West 2005)), and each jail must comply with the Commission on Jail Standards (id. § 351.002). The Commission requires a written inmate telephone plan providing reasonable access to local and long-distance calls, on a prepaid or collect basis, plus a free local call for inmates who otherwise could not complete the two required post-booking calls (37 Tex. Admin. Code § 291.1, § 291.1(1), § 291.1(2) (2013)). Local Government Code section 132.007(a) authorizes a county to provide authorized services through the Internet (West 2008), and section 132.007(c) limits any Internet-service fee to recovering costs directly and reasonably incurred, chargeable only if the county determines access would not be feasible without it. The AG noted a then-pending FCC proceeding to cap interstate inmate calling rates (Rates for Interstate Inmate Calling Servs., 78 Fed. Reg. 4369 (proposed Jan. 22, 2013)), and relied on an earlier opinion concluding that inmate-telephone-contract proceeds are county funds usable for any legitimate county purpose (Tex. Att'y Gen. Op. No. GA-0059 (2003) at 3).

Citations

Statutory and regulatory provisions:

• Tex. Util. Code Ann. § 51.002(13) (West Supp. 2013) (definition of VoIP service)
• Tex. Const. art. V, § 18 (powers of the commissioners court)
• Tex. Loc. Gov't Code Ann. § 351.001(a) (West 2005) (safe and suitable jails)
• Tex. Loc. Gov't Code Ann. § 351.002 (West 2005) (compliance with Commission on Jail Standards)
• Tex. Loc. Gov't Code Ann. § 132.007(a) (West 2008) (provision of county services through the Internet)
• Tex. Loc. Gov't Code Ann. § 132.007(c) (West 2008) (cost-recovery limit on Internet-service fees)
• 37 Tex. Admin. Code § 291.1, § 291.1(1), § 291.1(2) (2013) (inmate telephone plan; reasonable access; free local call)
• Rates for Interstate Inmate Calling Servs., 78 Fed. Reg. 4369 (proposed Jan. 22, 2013)

Cases:

• Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948)
• Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0059 (2003) (inmate-telephone-contract proceeds are county funds)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1041
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1041.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

February 10, 2014

Ms. Martha Galarza, CPA Opinion No. GA-1041
Cameron County Auditor
1100 East Monroe Re: Whether a county may provide Internet
Brownsville, Texas 78523 based local and long-distance telephone
service to inmates in county jails
(RQ-1145-GA)

Dear Ms. Galarza:

You ask "[w]hether a Texas County may provide voice over IP local and long distance phone service to inmates held in county jails."[1] The Utilities Code defines "Voice over Internet Protocol service" ("VOIP") as a service that:

(A) uses Internet Protocol or a successor protocol to enable a real time, two-way voice communication that originates from or terminates to the user's location in Internet Protocol or a successor protocol;

(B) requires a broadband connection from the user's location; and

(C) permits a user generally to receive a call that originates on the public switched telephone network and to terminate a call to the public switched telephone network.

TEX. UTIL. CODE ANN. § 51.002(13) (West Supp. 2013). You do not provide us with specific information about how a county might provide VOIP service or whether the county would contract with a private vendor to do so. We therefore answer your question in general terms.

The jurisdiction of a commissioners court over county business is limited to powers specifically conferred by the Texas Constitution and statutes. TEX. CONST. art. V, § 18; Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). Where a right is conferred or obligation imposed on a commissioners court, "it has implied authority to exercise a broad discretion to accomplish the purposes intended." Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941).

The Legislature has charged county commissioners' courts with providing "safe and suitable jails for the county." TEX. LOC. GOV'T CODE ANN. § 351.001(a) (West 2005). "Each county jail must comply with the minimum standards and the rules and procedures of the Commission on Jail Standards" (the "Commission"). Id. § 351.002. The Commission requires each jail facility to have and implement a written "inmate telephone plan." 37 TEX. ADMIN. CODE § 291.1 (2013). Under that plan, the facility "shall provide for reasonable access, both local and long distance, between an inmate and his/her attorney, family, and friends. This may be on a prepaid or collect basis." Id. § 291.1(2). In addition, "[a] free telephone shall be available for local calls for those inmates who otherwise would be unable to complete the two required calls" that an inmate is permitted immediately after booking. Id. § 291.1(1). Beyond these requirements, the Commission has not restricted how a jail facility provides local and long distance telephone service. Thus, the law requires that counties provide certain telephone services to inmates, and the counties have "broad discretion to accomplish [that] purpose." Anderson, 152 S.W.2d at 1085. Moreover, Local Government Code section 132.007 authorizes a county to "provide through the Internet" any county services authorized by law. TEX. LOC. GOV'T CODE ANN. § 132.007(a) (West 2008). Thus, counties may offer voice over Internet Protocol services to inmates.[2]

Assuming an affirmative answer to your first question, you next ask whether limitations exist "on the ability of a county to profit from the providing of such services or on the use of any such funds generated." Request Letter at 2. If a county provides services through the Internet, it "may only charge a fee for the ... service if the fee is designed to recover the costs directly and reasonably incurred in providing" the service, and it "may charge the fee only if the governing body of the county ... determines that providing access to ... the service through the Internet would not be feasible without the imposition of the charge." TEX. LOC. GOV'T CODE ANN. § 132.007(c) (West 2008). Furthermore, the county should also consider that the Commission's minimum standards require that jail facilities provide "reasonable access" to local and long distance telephone use. 37 TEX. ADMIN. CODE § 291.1(2) (2013). A court could conclude that the cost of phone service to an inmate is a factor to consider in determining the reasonableness of the access granted by the facility, and the county should therefore ensure that the cost of the services it provides is reasonable. In addition, the FCC recently decided to establish rate caps for interstate long-distance calls made by prison inmates.[3] Any charge imposed by a county would therefore be limited to the extent that the FCC regulations are applicable. To the extent that a county's fee for VOIP services to inmates yields any revenue within these limitations, this office has previously concluded that any "proceeds generated from the inmate telephone contract ... are county funds," and that they "may be used for any legitimate county purpose." Tex. Att'y Gen. Op. No. GA-0059 (2003) at 3.

SUMMARY

No Texas statute or administrative rule expressly prohibits a county from offering voice over Internet Protocol services to inmates. The provision of those services must comply with the Commission on Jail Standards requirements for inmate telephone services, as well as any other applicable state and federal regulations.

Under Local Government Code section 132.007, if a county provides services through the Internet, it may only charge a fee for the service if the fee is designed to recover the costs directly and reasonably incurred in providing the service. Furthermore, the amount a county may charge for VOIP services to inmates is limited by the Commission on Jail Standards requirement that inmates be provided reasonable access to local and long-distance phone service and the Federal Communications Commission regulation capping interstate long-distance rates for prisoners. Any proceeds generated from an inmate telephone contract are county funds, and they may be used for any legitimate county purpose.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Letter from Ms. Martha Galarza, CPA, Cameron Cnty. Auditor, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Aug. 8, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Whether any specific VOIP service complies with the Commission's requirements for access to local and long-distance service will require a review of that service. Furthermore, while no Public Utility Commission or Federal Communication Commission ("FCC") regulation expressly prohibits a county from offering VOIP services to inmates, whether and to what extent administrative regulations would limit a county's ability to do so will depend on how the county provides those services. We cannot, in the abstract, determine the applicability of administrative rules.

[3] Press Release, Fed. Commc'ns Comm'n, FCC Bars High Rates for Long Distance Phone Calls in Jails & Prisons Nationwide (Aug. 9, 2013), http://www.fcc.gov/document/fcc-reduces-high-long-distance-calling-rates-paid-inmates; see also Rates for Interstate Inmate Calling Servs., 78 Fed. Reg. 4369 (proposed Jan. 22, 2013) (to be codified at 47 C.F.R. pt. 64) (notice of proposed rulemaking).