              .THEATTORNEYGENERAL
                               OF     %-ICXAS




The Honorable Chet Brooks, Chairman                 Opinion   No.   H-610
Joint Committee on Priaon Reform
Senate Chamber                                      Re: Purposes for which the
Auetin, Texas     78711                             Department  of Corrections
                                                    may expend moneys from the
                                                    Educational 61 Recreational
                                                    Fund.

Dear    Senator Brooks:

        You have requested our opinion regarding the purposes for which
the Department   of Corrections may expend moneys from the “Educational
and Recreational   Fund. ”

        The Educational   and Recreational Fund has been recognized       in
every   eneral appropriations  act since 1957.  Acts,   55th Leg.,   R. S. ,
1957. e h. 385. at 1049.   The Department  of Corrections    appropriation
for the current biennium contains the following provision:

                 All receipts from the operation of the prison
                 unit commissaries,    prison-sponsored     recreation-
                 al shows and entertainment,     all gifts and other
                 income for inmate welfare accruing together with
                 balances at the beginning of each year of the
                 biennium beginning September 1, 1973, and
                 deposited in the local Educational    and Recreational
                 Fund, are hereby appropriated      to the Department   of
                 Corrections  subject to the following provisions:

                     A.   Salaries  of personnel employed out of
                     the Educational and Recreational    Fund need
                     not conform with the provisions    of the
                     Classification   Plan.

                     b.   ?sudn tunh s’tifl’be    expenheh o&y tiiLn
                     the advance,    written     approval   of the Board
                     of Corrections.

Acts.  63rd Leg.,    R. S., 1973, Ch. 659, at 1947-48.   The precise
language of this rider has appeared in every general appropriations       act
since 1965.  See
             -    -,       Acts 5.9th Leg., R.S., 1965, ch. 720 at  1767-68.


                                            p. 2701
                                                                                      1     w


The Honorable    Chet Brooks    - Page 2        (H-610)



         In 1938, the Attorney General was asked if money collected           in the
Educational and Recreational       Fund could be spent to acquire land near the
penitentiary   in Huntsville to be used as an athletic field and “deeded to the
Prison Board as trustees for the Fund”.           The fund was described    as “a
local fund . . .   raised  through  receipts   from   admissions   to the various
entertainments    staged by the prisoners,      and . . . to the Walls at Huntsville,
and through the profits derived from the operation of commissaries.              . . from
which prisoners     can make purchases.      . . . [It is] not derived in any manner
through appropriations,      is administered    for the benefit of the inmates.     . .
and is under the control of the Prison Board. ” In an Opinion dated March 15,
1938 and found in Book 380 at page 887 of the Attorney General’s           Letter
Opinion Collection,     H. L. Williford,    Assistant   Attorney General,    advised
then Chairman of the Prison Board Joseph Wearden:

                    If the terms,   conditions,   and requirements     of
                 your duties and powers with respect to the
                 management     of such fund are discretionary,       and
                 I think they are, you probably have power to use
                 such fund for the benefit of the convicts,       and your
                 discretion   as trustees   is the only limitation placed
                 upon your power to manage such fund.           I see no reason
                 why you could not purchase the land for the benefit of
                 the prisoners.

                 .   .   * .

                 .  . . the trustees of such fund can probably invest the
                 same for the benefit of the convicts in the manner above
                 stated in the absence of any express    statutory prohibi-
                 tion, if same is consistent with the proper management
                 of the State Prison System.

         In 1963, Dr. George Beto, then Director       of the Texas Department       of
Corrections    made a request which resulted in Attorney General Opinion
C-133 (1963) about the propriety of accepting certain advertising       for the
Annual Prison Rodeo souvenir program.          In making the request,    Dr.
Beto explained that the net receipts from the rodeo were used for various
rehabilitative   services   such as education,  vocational   education, religion,
recreation,    welfare,   etc.




                                           p.    2702
The Honorahle     Chet Brooks     - Page   3        (H-610)



          In connection with your request,       we have been advised by the
present Director      of the Department    of Corrections,      W. J. Estelle,    Jr.,
that the Texas Board of Corrections,          acting as a Board of Trustees,         is
responsible     for the control and supervision       of the Educational    and Recre-
ational Fund, that the fund was created to receive the proceeds from the
operation of the commissaries,         the Prison Rodeo, and minor income-
producing activities,      and that all income of the fund is dedicated to the
general health,     educational and recreational       welfare of inmates.     Although
we have been furnished no trust indenture and have not found any general
 statutory authority (but see,, Education Code $ 2.9. 03) for the establish-
ment or collection      of         fund by the Texas Board of Corrections,            the
long-established      and consistent   characterization     of the fund as a trust
fund and its tacit recognition      as such by the Legislature       since at least
1957, convinces      us that it should be treated as such.        Daniel v. Rich-
creek,    146 S. W. 2d 206 (Tex.     Civ. App. -- Austin 1940, writ dism.,
judg.corr.     ); Turle y v. Tobin, 7 S. W. 2d 949 (Tex. Civ. App. --
Austin 1928, writ refused);       Gmohundro v. Matthews,         341 S. W. 2d 401
(Tex. Sup. 1960).       We think a confidential,     fiduciary relationship     exists
between the Board of Corrections         and the prisoners      committed    to its
care with respect to the disposition       of labor and property (and the
fruits thereof) donated to the fund.       See V. T. C. S. art. 6166~.       See
Attorney General Opinion H-543:(197r              The quoted provisions      ofhe
General Appropriations        Act do not appear to be inconsistent        with the
purposes of the trust.

          You are therefore   advised that, insofar as we can ascertain,
the Texas Board of Corrections,       can invest the fund, or spend it, for
the benefit of the prisoners    in any manner consistent with the purposes
of the trust, the proper management       of the prison system,   and the
statutes of this state.   11 Tex. Jur. 2d, Charities    $11, et seq.; see
V. T.C.S.     art. 6166a, et seq.   You have asked whether certain specific
uses of the funds are permissible,      but the proper determination   of such
matters    involves fact questions which we cannot resolve.

                                    SUMMARY

                  The Educational and Recreational     Fund, which is
                  administered   for the benefit of the prisoners. may be
                  invested or spent for the prisoners’    benefit in any manner
                  consistent   with the purposes of the trust, the proper
                  management    of the prison system,   and the statutes of
                  this state.




                                                        Attorney   General   of Texas

                                               p.    2703
The HonorablC    Chet Brooks   - Page   3   (~-610)




Opinion   Committee


jwb




                                            p.   2704
