Can a Texas sheriff pay a deputy a salary stipend out of jail commissary funds?

Plain-English summary

A county jail commissary is the in-jail store where inmates buy snacks, hygiene items, and the like, and it generates funds the sheriff controls under section 351.0415 of the Local Government Code. A Hunt County district attorney asked the AG two things: can the sheriff use commissary funds to pay a salary stipend to a deputy whose job includes commissary duties, and if so, must the stipend amount bear a reasonable relationship to the time and effort the deputy spends on those duties?

On the first question, the AG laid out the statutory framework. The sheriff (or a designee) may operate the commissary, and subsection 351.0415(b)(1) gives the sheriff "exclusive control" of the funds. But the sheriff "may use commissary proceeds only" for the purposes the statute lists: funding and staffing programs for inmates' social needs (education, recreation, counseling); supplying inmates with clothing, writing materials, and hygiene supplies; establishing and staffing the commissary operation and funding the salaries of staff who manage inmates' commissary accounts; funding and staffing educational and law libraries; and funding physical-plant improvements, technology, equipment, programs, and services for inmate and facility well-being and security. Subsection 351.0415(c)(3) specifically allows using commissary funds to staff the commissary operation and pay the salaries of staff managing inmates' commissary accounts, and subsections (c)(1) and (4) authorize staffing social-needs programs and the libraries, which suggests salary expenditures for those staff can fit within the statute.

The deputy's described duties included supervising the commissary account and reviewing and approving expenditures and purchases from it. The AG said those activities appear to fall within the permissible spending purposes, but it could not conclude so as a matter of law, because the propriety of a particular commissary expenditure is a question of fact the AG does not resolve in an opinion. The practical answer: the sheriff's exclusive control and limited-purpose spending authority give the sheriff the power to determine, in the first instance, whether the deputy's duties fall within subsection 351.0415(c) so as to justify the stipend. That determination is subject to administrative review by the Texas Commission on Jail Standards and to judicial review under an abuse-of-discretion standard.

On the second question, the statute does not directly link the size of a commissary expenditure to the time and effort spent on the authorized activity. But abuse-of-discretion review carries the principle that a decision "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law" can be corrected by mandamus. From that, the AG concluded a court would likely find that an expenditure of commissary funds is not arbitrary if the amount is reasonable in light of the performance of the authorized activities. The AG also noted the statutory limit that commissary proceeds may not fund the jail's general budgetary operating expenses.

Currency note

This opinion was issued in 2019. 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.

What the opinion meant for those who asked

For the district attorney and the Hunt County sheriff, the opinion placed the initial spending judgment with the sheriff, given the sheriff's exclusive control over commissary funds, while making clear that judgment was not unreviewable: the Commission on Jail Standards could review it administratively, and a court could review it for abuse of discretion. The opinion did not bless the specific stipend, because whether the deputy's duties fit the statute is a fact question. On amount, the opinion gave a workable yardstick: a stipend reasonable in light of the authorized commissary work the deputy actually performs is unlikely to be treated as arbitrary, while the statute's bar on using commissary proceeds for the jail's general operating budget marked an outer limit.

Common questions

Q: What can jail commissary funds be spent on in Texas?
A: Under subsection 351.0415(c), only the listed purposes: inmate social-needs programs, inmate supplies, staffing and funding the commissary operation and account-management salaries, educational and law libraries, and physical-plant and security improvements for inmates and the facility.

Q: Can those funds pay a deputy's salary stipend?
A: Possibly. Staffing the commissary and funding salaries of staff who manage commissary accounts is an authorized use, but whether a particular deputy's duties qualify is a fact question the sheriff decides first, subject to review.

Q: Who decides whether a commissary expenditure is proper?
A: The sheriff, in the first instance, because the sheriff has exclusive control of the funds. That decision is subject to administrative review by the Commission on Jail Standards and judicial review for abuse of discretion.

Q: Does the stipend amount have to match the work?
A: The statute does not say so directly, but the AG concluded a court would likely find an expenditure is not arbitrary if the amount is reasonable in light of the authorized activities performed.

Q: Is there anything commissary funds clearly cannot pay for?
A: Yes. Under subsection 351.0415(g), commissary proceeds may not fund the county jail's general budgetary operating expenses.

Background and statutory framework

Section 351.0415 of the Local Government Code authorizes a sheriff or designee to operate a county jail commissary (subsection (a)), places "exclusive control" of commissary funds with the sheriff (subsection (b)(1)), and limits spending to enumerated purposes (subsection (c)), including staffing the commissary and funding salaries of staff managing inmates' commissary accounts (subsection (c)(3)) and staffing social-needs programs and libraries (subsections (c)(1), (4)); subsection (g) bars using proceeds for the jail's general operating budget, and a narrow population-and-geography exception to exclusive control appears at section 351.04155(a). Operation must comply with Commission on Jail Standards rules (subsection (a); Tex. Gov't Code § 511.011). The AG relied on its prior opinion KP-0159 (2017) that the propriety of a specific commissary expenditure is a fact question and that the sheriff's actions are subject to administrative and abuse-of-discretion review, on Fort Bend Cty. Wrecker Ass'n v. Wright, 39 S.W.3d 421 (Tex. App.-Houston [1st Dist.] 2001, no pet.) for the sheriff's rulemaking power, and on Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) and Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) for the abuse-of-discretion/mandamus standard.

Citations and references

Statutory provisions:

• Tex. Loc. Gov't Code § 351.0415; § 351.04155
• Tex. Gov't Code § 511.011

Cases:

• Fort Bend Cty. Wrecker Ass'n v. Wright, 39 S.W.3d 421, 425-26 (Tex. App.-Houston [1st Dist.] 2001, no pet.)
• Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)
• Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991)

Attorney General opinions:

• Tex. Att'y Gen. Op. No. KP-0159 (2017)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0271
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0271.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 24, 2019

The Honorable Noble D. Walker, Jr.
Hunt County District Attorney
Post Office Box 441
Greenville, Texas 75403-0441

Opinion No. KP-0271

Re: Whether a sheriff may expend commissary funds for a salary stipend for a deputy sheriff with duties related to operation of the commissary (RQ-0284-KP)

Dear Mr. Walker:

You ask about a county sheriff's use of county jail commissary funds to finance a salary stipend for a deputy sheriff.[1] Your questions stem from section 351.0415 of the Local Government Code, which authorizes a sheriff to operate a commissary within certain administrative and expenditure parameters for use by county jail inmates. See generally TEX. LOC. GOV'T CODE § 351.0415. You set forth a list of ten duties, as relayed to you by the sheriff, outlining the deputy's responsibilities with regard to the commissary fund. Request Letter at 2-3. On the basis of those duties, you ask whether a sheriff may expend county jail commissary funds on a salary stipend for the deputy and, if so, whether the amount of the stipend must bear some reasonable relationship to the time and effort spent performing those duties. Id. at 3.

A sheriff or his designee "may operate, or contract with another person to operate, a commissary for the use of inmates committed to the county jail." TEX. LOC. GOV'T CODE § 351.0415(a). Subsection 351.0415(b) of the Local Government Code generally places the "exclusive control" of commissary funds in the hands of the sheriff.[2] Id. § 351.0415(b)(1). That said, a sheriff "may use commissary proceeds only" for the purposes set forth by statute, which are to:

(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;

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

(3) establish, staff, and equip the commissary operation and fund the salaries of staff responsible for managing the inmates' commissary accounts;

(4) fund, staff, and equip both an educational and a law library for the educational use of inmates; 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.

Id. § 351.0415(c); see also id. § 351.0415(a) (providing that the operation of the commissary fund must also comply with rules adopted by the Commission on Jail Standards).[3] Subsection 351.0415(c)(3) expressly allows the sheriff to use commissary funds to "staff ... the commissary operation and fund the salaries of staff responsible for managing the inmates' commissary accounts." Id. § 351.0415(c)(3). In addition, subsections 351.0415(c)(1) and (4) authorize the sheriff to use commissary funds to "staff" social needs programs, an educational library, and a law library, suggesting that expenditures associated with providing staff for those particular programs, such as salaries, could come within the parameters of the statute. Id. § 351.0415(c)(1), (4). You tell us that among his or her duties, the chief deputy "supervises ... the commissary account" and "reviews [and] approves expenditures and purchases" from the account. Request Letter at 2. While these activities appear to fall within the scope of permissible expenditures for commissary proceeds under subsection 351.0415(c), this office cannot so conclude as a matter of law. See Tex. Att'y Gen. Op. No. KP-0159 (2017) at 1 ("The propriety of a particular expenditure from a commissary account is a question of fact that we cannot answer in an attorney general opinion."). Instead, the sheriff's authority to "use commissary proceeds only" for statutory purposes and his or her "exclusive control of the commissary funds" gives the sheriff the authority to initially determine whether the duties of the deputy fall within the scope of subsection 351.0415(c) so as to justify the expenditure, subject to administrative review by the Commission on Jail Standards as well as judicial review under an abuse of discretion standard. See TEX. LOC. GOV'T CODE § 351.0415(b)(1), (c); TEX. GOV'T CODE § 511.011; see also Fort Bend Cty. 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"); Tex. Att'y Gen. Op. No. KP-0159 (2017) at 2 (recognizing the actions of a sheriff are subject to judicial review under an abuse of discretion standard and administrative review by the Commission on Jail Standards).

Regarding your second question, subsection 351.0415 does not directly address the relationship between the amount of commissary fund expenditures and the time and effort spent performing such authorized activities. However, judicial review under an abuse of discretion standard incorporates the principle that "a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law" can form the basis for a mandamus action. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); see also Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) (holding that "a writ of mandamus may issue in a proper case to correct a clear abuse of discretion by a public official"). Thus, a court would likely conclude that an expenditure of commissary funds under subsection 351.0415(c) is not arbitrary if the amount of the expenditure is reasonable in light of the performance of the authorized activities.

SUMMARY

The sheriff's "exclusive control" of commissary funds under subsection 351.0415(b)(1) of the Local Government Code and his or her authority under subsection 351.0415(c) to "use commissary proceeds only" for statutory purposes gives the Hunt County sheriff the authority to initially determine whether an expenditure is authorized, subject to administrative review by the Commission on Jail Standards and judicial review under an abuse of discretion standard.

A court would likely conclude that an expenditure of commissary funds under subsection 351.0415(c) is not arbitrary if the amount of the expenditure is reasonable in light of the performance of the authorized activities.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Noble D. Walker, Jr., Hunt Cty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 3 (Apr. 17, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Not applicable here, a narrow exception to the sheriff's exclusive control over commissary funds exists for a county meeting particular population and geographic requirements. See TEX. LOC. GOV'T CODE § 351.04155(a).

[3] Commissary proceeds may not, however, "fund the budgetary operating expenses of a county jail." Id. § 351.0415(g).