                            ATTORNEY GENERAL OF TEXAS
                                         GREG        ABBOTT




                                             November 4, 2010



The Honorable Scott Brumley                             Opinion No. GA-0814
Potter County Attorney
500 South Fillmore Street, Room 303                     Re: Whether revenue from the sale of prepaid
Amarillo, Texas 79101-2548                              phone cards in a county jail commissary should be
                                                        credited to the sheriff or to the general fund of the
                                                        county (RQ-0867-GA)

Dear Mr. Brumley:

       You ask whether revenue from the sale of prepaid phone cards in a county jail commissary
should be credited to the sheriff, as custodian of the commissary funds, or to the general fund of the
county.'

       As background, you explain that Potter County currently contracts with an outside company
"for phone service to Potter County inmates. This phone service allows inmates to make calls to
outside numbers, with the recipient of the calls paying the [outside company's] fee for the call."
Request Letter at 1. You further explain that "[a]s a method of providing telephone access on a
prepaid basis, the Potter County Sheriffis considering selling phone cards for this system to inmates
through the jail commissary." Id. You tell us that, while "Potter County contracts with Global Tel*
Link (GTL) for phone service for Potter County inmates," the selling of the prepaid phone cards in
the commissary "would be separate from the telephone service contract," and that the cards could
be "purchased from whatever source by the Sheriff at a discount." Id. (emphasis added).

        Generally, county officers are required to pay over all funds received, from whatever source
derived, to the county treasurer. TEx. Loc. GOV'T CODE ANN. §§ 113.001, .003, .021 (West 2008).
One exception to this rule provides that a sheriff is the sole custodian of jail commissary funds. Id.
§ 351.0415(b )(2) (West 2005). In 1989, the Legislature enacted an early version of section 351.0415
of the Local Government Code, which authorizes a sheriff, or his designee, to operate, or to contract
for the operation of, "a commissary for the use of the prisoners committed to the county jail." Act
of May 28, 1989, 71st Leg., R.S., ch. 980, § 1, sec. 351.0415, 1989 Tex. Gen. Laws 4056, 4056.
Proceeds from the sale of commissary items are to be used solely for the benefit of county jail




       IRequest Letter at 1 (available at http://www.texasattomeygenera1.gov).
The Honorable Scott Brumley - Page 2                     (GA-0814)



inmates'> Section 351.0415 also provides that "[a] commissioners court may not use commissary
proceeds to fund the budgetary operating expenses of a county jail." TEx. Loc. GOy'T CODE ANN.
§ 351.0415(g) (West 2005).

        Our primary objective in construing any statute is, like that of the courts, to effectuate the
intent of the Legislature. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927,930 (Tex. 2010). In
order to effectuate that intent, courts, and by extension this office, rely on the plain language of the
statute. Leland v. Brandal, 257 S.W.3d 204,206 (Tex. 2008). On the basis of the plain language
of section 351.0415, it is clear that the revenue derived from items sold in a jail commissary is
exclusively controlled by the sheriff. Because a prepaid phone card, as you have described it, is an
item sold in a jail commissary, it follows that the revenue derived from the sale of prepaid phone
cards sold in a jail commissary must be credited to the sheriff.

        In your request letter, you note multiple attorney general opinions that have addressed the
interaction between inmate commissary services and inmate telephone services. Request Letter at
2-3. Less than two years after the enactment of section 351.0415, this office considered whether
proceeds from pay telephones in a county jail should be credited to the jail commissary account.
Tex. Att'y Gen. Op. No. DM-19 (1991) at 1. The opinion, noting that one provision of section
351.0415 "specified that a jail commissary is to be operated in accordance with rules adopted by the
Commission on Jail Standards" (the "Commission") relied on the Commission's placement of
inmate telephone privileges and commissary privileges into "separate categories." Id. at 2
("Telephone privileges and commissary privileges are treated as separate categories. "). The opinion,
observing that "[t]elephone privileges and commissary privileges have been listed as separate
categories since a rule regarding inmate privileges was first adopted in 1976," declared that "[t]hat
categorization indicates that the commission did not understand the term 'commissary' to include
pay telephones." Id at 2-3. Although Commission rules did not define the term "commissary," they


        '''The sheriff or the sheriff's designee may use commissary proceeds only to:

                           (I) 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 imnates' 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, tecbnology, 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).
The Honorable Scott Brumley - Page 3                     (GA-0814)



did, and still do, provide separate rules for the "inmate telephone plan,,3 and the "inmate commissary
plan.,,4 The opinion concluded that "[p ]roceeds from pay telephones in county jails are not governed
by section 351.0415 of the Local Government Code." Consequently, "[a]ny proceeds the sheriff
receives should be paid to the county treasurer." [d.

       The Commission's rule regarding the "inmate telephone plan," unchanged in this regard since
1976, states that "[t]oll calls should be made on a prepaid or collect basis." 37 TEx. ADMIN. CODE
§ 291.1 (2010) (Tex. Comm'n on Jail Standards, Inmate Telephone Plan). When the rule was
adopted, the phrase "prepaid basis" did not refer to prepaid phone cards. Rather, it referred to a




       'This rule provides as follows:

               Each facility shall have and implement a written plan, approved by the commission,
       governing the availability and use of inmate telephones.

                (I) Immediately after booking, but in no case later than four hours after arrival, a person shall
       be pennitted to make at least two completed telephone calls. Toll calls should be made on a prepaid
       or collect basis. A free telephone shall be available for local calls for those inmates who otherwise
       would be unable to complete the two required calls. Facilities may have a special line reserved for
       inmate use.

                (2) Each facility shall provide for reasonable access, both local and long distance, between
       an inmate and hislher attorney, family, and friends. This may be on a prepaid or collect basis. The
       plan shall contain procedures for the handling of emergency calls.

       37 TEX. ADMIN. CODE § 291.1 (2010) (Tex. Comm'n on Jail Standards, Inmate Telephone Plan).

       'This rule provides as follows:

                Each facility shall have and implement a written plan, approved by the commission,
       governing the availability and use of an inmate commissary which allows for the purchase ofhygiene
       items and sundries. The plan shall:

                (I) indicate types of services, in-house or vendor;

                (2) indicate frequency of services;

                (3) provide procedures for inmates obtaining items;

                (4) provide for yearly audits by the county auditor in accordance with the Local Government
       Code, § 351.0415. The audits shall be submitted to the commission not later than ten days following
       completion; and

               (5) provide that all expenditures from commissary proceeds be made in accordance with the
       Local Government Code, § 351.0415.

       Id § 291.3 (Inmate Commissary Plan).
 The Honorable Scott Brumley - Page 4                  (GA-OSI4)



 method by which the sheriff or the county would pay for the call and then deduct the charges from
 the inmate's commissary account. 5

         Subsequent opinions have affirmed the conclusion ofAttorney General Opinion DM-19. See,
 e.g., Tex. Att'y Gen. LO-96-032 (Commission on Jail Standards not authorized to adopt a rule
 placing telephone services within the commissary fund); Tex. Att'y Gen. LO-97-030, at 3-4; Tex.
 Att'y Gen. Op. No. GA-0059 (2003). However, each of those opinions considered telephone
 services that were provided separately from the commissary. They do not address the situation at
 issue here, in which a prepaid phone card is being sold as an item in the jail commissary.

          A Commission rule declares that an "inmate commissary" must allow "for the purchase of
  hygiene items and sundries." 37 TEx. ADMIN. CODE § 291.3 (2010) (Tex. Comm'n on Jail
  Standards, Inmate Commissary Plan). One dictionary defines "sundries" as "various items not
  important enough to be mentioned individually." THE NEW OXFORD AMERICAN DICTIONARY 1703
  (2001). A prepaid phone card is, by this definition, a "sundry," indistinguishable from any other item
  that might be sold in a county jail commissary. An inmate need not intend to procure such a card
  in order to obtain telephone service for himself at the county jail. Rather, he might purchase it
  simply as a gift for another, or for himself upon release from jail. Moreover, as you have stated, the
  selling of the prepaid phone cards in the commissary "would be separate from the telephone service
  contract." Request Letter at 1. Finally, there is no suggestion that the sale of prepaid phone cards
  would replace the telephone service contract, or that inmates would always opt to use a prepaid
  phone card to obtain toll telephone service. Because there is no necessary correlation between the
  sale of a prepaid phone card and the provision of toll telephone service in a county jail, we find no
  relevant basis for distinguishing between a prepaid phone card and other commissary items. As
. such, revenue from its sale is a part of the commissary fund, and thus subject to the sole control of
  the sheriff.




        'Telephone Conversation with Adan Munoz, Jr., Execntive Director, Texas Conunission on Jail Standards (June
 15,2010).
The Honorable Scott Brumley - Page 5           (GA-OSl4)




                                      SUMMARY

                      Revenue from the sale of prepaid phone cards in the county
              jail commissary should be credited to the sheriff for the use of county
              jail inmates rather than to the general fund of the county.




DANIEL T. HODGE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
