Does a Texas sheriff have to go through the county purchasing agent to set up a jail commissary contract?

Texas AG Opinion JM-1121: Can a Sheriff Contract for the Jail Commissary Without the County Purchasing Agent?

Plain-English summary

A county jail commissary is the store where inmates buy snacks, hygiene items, and similar goods, with the profits going back into jail programs. The Collin County Criminal District Attorney asked the Attorney General whether the sheriff could sign a contract about the jail commissary on his own, or whether he first had to route it through the county purchasing agent, the official who normally handles county buying that is not put out for competitive bid.

The Attorney General walked through the general rules first. In counties that have a purchasing agent, that agent is supposed to make all purchases not subject to the competitive bidding requirements of section 262.023 of the Local Government Code. And an earlier opinion had held that items bought with jail commissary profits were subject to competitive bidding the same as any other county purchase. So under the old framework, commissary buying was not the sheriff's to control alone.

What changed the answer was a 1989 statute. The 71st Legislature added section 351.0415 to the Local Government Code, which says a sheriff in a county under 200,000 population may operate, or contract with another person to operate, a commissary for the jail's prisoners. The statute gives the sheriff exclusive control of the commissary funds, requires the sheriff to take new bids to renew supplier contracts every five years, and lets the sheriff equip the commissary and fund a prisoner library. Reading that specific grant of authority, the Attorney General concluded the sheriff may enter into a commissary contract without consulting the county purchasing agent and without going through the commissioners court's competitive bidding process under section 262.023. The reasoning rested on a standard rule of statutory construction: when a statute spells out particular powers, that spelling-out is treated as excluding others (Ex parte McIver). The opinion added two limits: the statute itself caps how the proceeds may be spent, and the commissary must be run under rules adopted by the Commission on Jail Standards.

Currency note

This opinion was issued in 1989. 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.

Section 351.0415 and the surrounding jail commissary and county purchasing statutes have been amended and recodified since 1989, and the population bracket and spending rules in particular may read differently today. Anyone dealing with a present-day jail commissary contract should check the current Local Government Code and the Commission on Jail Standards rules rather than relying on the analysis here.

Who this opinion affected (as of 1989)

County sheriffs (in counties under 200,000): The opinion confirmed that a sheriff could sign a jail commissary contract directly, without clearing it through the county purchasing agent or the commissioners court's bidding process. It also reminded sheriffs that the statute controls how commissary proceeds may be spent and that the commissary must follow Jail Standards rules.

County purchasing agents and commissioners courts: The opinion carved the commissary out of their usual purchasing authority. Ordinary non-bid county purchases still ran through the purchasing agent, but the commissary contract did not.

Jail inmates: The statute tied commissary proceeds to prisoner programs, supplies, and a library, so the opinion indirectly reinforced that the money generated by inmate purchases was meant to be spent on inmate needs.

Common questions

Does the sheriff have to use the county purchasing agent for a jail commissary contract?
No. The Attorney General concluded that section 351.0415 lets the sheriff contract regarding the commissary without consulting the county purchasing agent.

Does the commissary contract go through competitive bidding?
Not through the commissioners court's competitive bidding process under section 262.023. The commissary statute instead requires the sheriff to accept new bids to renew supplier contracts every five years.

Can the sheriff spend commissary money on anything?
No. The statute limits the sheriff to using commissary proceeds for listed purposes: prisoner social-needs programs, prisoner supplies like clothing and hygiene items, running the commissary itself, and funding a prisoner library. The county auditor also examines the commissary accounts at least quarterly.

Background and statutory framework

The opinion started from the general county purchasing rules. Attorney General Opinion JM-974 (1988) concluded that in counties with a county purchasing agent, that agent must make all purchases not subject to the competitive bidding requirements of section 262.023 of the Local Government Code. (Section 262.011 allows a county with a population of 74,000 or more to appoint a purchasing agent.) Attorney General Opinion MW-439 (1982) had held that items purchased with jail commissary profits were subject to competitive bidding like other county purchases, and that the sheriff's statutory responsibility for operating the jail (former article 5116, V.T.C.S., now section 351.041) did not create an exception. See also Attorney General Opinion JM-783 (1987).

Certain statutes already let county officers spend without going through the purchasing agent or competitive bidding. Within the limits of former article 53.08 of the Code of Criminal Procedure (now article 102.007), hot-check collection fees are expendable at the sole discretion of county attorneys, criminal district attorneys, and district attorneys. Expenditures from forfeiture funds under section 5.08 of article 4476-15, V.T.C.S., are administered by the seizing agencies. See Attorney General Opinion JW-313 (1985).

Against that backdrop, the 71st Legislature amended subchapter C of chapter 351 of the Local Government Code by adding section 351.0415 (H.B. 669, Acts 1989, 71st Leg., ch. 980, at 4056, effective September 1, 1989). The statute lets a sheriff in a county under 200,000 population operate, or contract with another person to operate, a commissary for the jail's prisoners, run under Commission on Jail Standards rules. It gives the sheriff exclusive control of the commissary funds, requires commissary accounts, requires new bids to renew supplier contracts every five years, and limits proceeds to listed purposes (prisoner programs, prisoner supplies, running the commissary, and a prisoner library), with a quarterly county-auditor examination.

Because section 351.0415 gives the sheriff exclusive control of the funds and expressly authorizes the sheriff to operate or to contract out the commissary, the Attorney General reasoned that the express enumeration of these particular powers excluded the alternative of routing the contract through the purchasing agent or the commissioners court. The opinion invoked the rule that the express enumeration of particular persons or things in a statute is tantamount to an express exclusion of all others (Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 1979)). It concluded the sheriff may contract regarding the commissary without consulting the county purchasing agent or being subject to the commissioners court's competitive bidding under section 262.023, subject to the statute's spending limits and the Jail Standards rules.

Citations

Statutory authorities:

• Local Government Code § 351.0415 (sheriff's authority to operate or contract for a jail commissary; control of funds; five-year rebidding; spending limits; auditor examination)
• Local Government Code § 351.041 (formerly V.T.C.S. art. 5116) (sheriff responsible for operation of the jail)
• Local Government Code § 262.023 (competitive bidding requirements); § 262.011 (appointment of a county purchasing agent in counties of 74,000 or more)
• Code of Criminal Procedure art. 102.007 (formerly art. 53.08) (hot-check collection fees)
• V.T.C.S. art. 4476-15, § 5.08 (forfeiture funds)
• H.B. 669, Acts 1989, 71st Leg., ch. 980, at 4056 (enacting § 351.0415)

Cases:

• Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 1979) (express enumeration in a statute excludes what is not enumerated)

Attorney General opinions referenced:

• JM-974 (1988); MW-439 (1982); JM-783 (1987); JW-313 (1985)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1121
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1121.pdf

Original opinion text

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

December 20, 1989

Honorable Tom O'Connell
Collin County Criminal District Attorney
Collin County Courthouse
McKinney, Texas 75069

Opinion No. JM-1121

Re: Authority of a sheriff to contract regarding the jail commissary without consulting the county purchasing agent (RQ-1846)

Dear Mr. O'Connell:

You ask whether the sheriff may enter into a contract regarding the county jail commissary without consulting the county purchasing agent. In analyzing your question, a brief review of statutes and attorney general opinions concerning the authority of county officers to contract and make expenditures is necessary.

Attorney General Opinion JM-974 (1988) concluded that in counties with county purchasing agents,[Footnote 1] the county purchasing agent must make all purchases that are not subject to the competitive bidding requirements of section 262.023 of the Local Government Code.

Attorney General Opinion MW-439 (1982) concluded that items purchased with profits from the jail commissary were subject to the competitive bid requirements the same as other purchases made for county officers. The opinion found that the fact that article 5116, V.T.C.S. (now section 351.041 of the Local Government Code), makes the sheriff responsible for operation of the jail does not constitute an exception to the requirement that the commissioners court must make purchases subject to the competitive bidding procedure. (The matter of a county purchasing agent was not in issue.) See Attorney General Opinion JM-783 (1987).

Certain statutes vest county officers with authority to make expenditures without regard to the county purchasing agent or the competitive bidding process. Within the limits set out in article 53.08 of the Code of Criminal Procedure (now Code of Criminal Procedure article 102.007), fees derived from the collection of hot checks are expendable at the sole discretion of county attorneys, criminal district attorneys, and district attorneys. Expenditures from funds generated by forfeitures under section 5.08 of article 4476-15, V.T.C.S., are administered by the seizing agencies or the office to which they are forfeited. See Attorney General Opinion JW-313 (1985).

The 71st Legislature amended subchapter C of chapter 351 of the Local Government Code by adding section 351.0415 providing that a sheriff may operate a commissary for use of the prisoners in a county jail. The bill enacting section 351.0415 provides:

(a) The sheriff of a county with a population of under 200,000 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.

(b) The sheriff:

(1) has exclusive control of the commissary funds;

(2) shall maintain commissary accounts showing the amount of proceeds from the commissary operation and the amount and purpose of disbursements made from the proceeds; and

(3) shall accept new bids to renew contracts of commissary suppliers every five years.

(c) The sheriff may use commissary proceeds only to:

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

(2) supply county prisoners with clothing, writing materials, and hygiene supplies;

(3) establish, staff, and equip the commissary operation; or

(4) fund, staff, and equip a library for the educational use of county prisoners.

(d) 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.

SECTION 2. This Act takes effect September 1, 1989, and on that date, the operation and unexpended proceeds of any existing county jail commissary shall be delivered to the sheriff of the county in which the commissary is located. (Emphasis added.)

H.B. 669, Acts 1989, 71st Leg., ch. 980, at 4056 (effective Sept. 1, 1989).

Section 351.0415 gives the sheriff exclusive control of the commissary funds, requires the sheriff to accept new bids to renew contracts of suppliers every five years, vests the sheriff with authority to equip the commissary, and fund and staff a library for the prisoners. The sheriff is not only empowered to operate the commissary, but is also authorized to execute a contract for another person to operate the commissary.

The express enumeration of particular persons or things in a statute is tantamount to an express exclusion of all others. Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 1979).

We conclude that by virtue of the express language of section 351.0415, the sheriff may enter into a contract regarding the county jail commissary without consulting the county purchasing agent or being subject to action taken by the commissioners court in a competitive bidding process under section 262.023.

We do note that certain limitations are imposed on expenditures by the statute and that the commissary must be operated in accordance with rules adopted by the Commission on Jail Standards.

SUMMARY

Section 351.0415 of the Local Government Code authorizes the Collin County Sheriff to enter into a contract regarding the county jail commissary without consulting the county purchasing agent.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

Footnote 1: Section 262.011 of the Local Government Code provides that in a county with a population of 74,000 or more persons, a county purchasing agent may be appointed.