                      April 25, 1963


Honorable Doug Crouch              Opinion No. C- 67
District Attorney
Tarrant County                     Re: Various questions relative
Fort Worth, Texas                      to the operation of the
                                       Tarrant County Jail Commls-
Dear Mr. Crouch:                       sax-y.
          This office is in receipt of your request for an
opinion concerning the following questions:
          "(1) Is the operation of a 'Commissary,'
     within the confines of the Tarrant County Jail,
     which .seI,ls
                 toilet articles and authorizes Items
     for the exclusive personal use and benefit of
     those legally confined therein, within the pur-
     view of the law.
          "(2) Would the operation, supervisionand
     control of such a facility, to Include purchasing
     of merchandise, be vested In:
          a. The Sheriff
          b. The County Auditor
          c. The CommissionersCourt
          “(3)  ILaythe purchase of supplies necessary
     to such facility be effected from revenue and
     funds realized through the operation thereof.
          "(4) May any profit realized from the opera-
     tion of such a facility be retained, used and
     accounted for, by the.Sherlff,for the purchase of
     uniforms and miscellaneous equipment to be used by
     the Sheriff's Office."
          Your statement   of the facts Is as follows:
          "It has been a practice of long standing in
     Tarrant County, to provide a lcommlssarytfacility
Hon. Doug Crouch, page 2 (C-67      )


     for the exclusive use and benefit of persons le-
     gally confined in the County Jail.
          'Items authorizedfor sale to such persons
     are purchased by the County Purchasing Agent.
          "The facility Is operated within the confines
     of the jail proper by the Sheriff. All revenue
     from the sale of the Items concerned Is transferred
     to the County Auditor, who in turn deposits same in
     the appropriate fund."
         The following statute Is pertinent to the questions
propounded this office:
          "Art. 5116.   Sheriff and jailer
          "Each sheriff is the keeper of the jail of
     his county. He shall safely keep therein all prls-
     oners committed thereto by lawful authority, sub-
     ject to the order of the proper court, and shall be
     responsiblefor the safe keeping of such prisoners.
     The sheriff may anvolnt a .lallerto take charge of
     the jail, and suppiy the wants of those therern
     confined; but                          shall exer-
     cise a sunervlsionand control over the Jail."
     (Emphasis-added).
            The power of the CommissionersCourt is limited to that
conferred by the Constitutionand statutes,   either expresslyor
by necessary lmpllcatlon. Von Rosenberg v. Iovett, 173 S.W. 308
(Tex.Clv.App.1915, error ref.); Roper v. Hall 260 S.W. 289 ~(Te
Clv.App. 1925); Hill v.Sterrett, 252 S W 2d 466 (Tex. Clv.App
1952, error ref. n.r.e.)..   After a thor$h search, this off&
can find no express or Implied authority for the operation of a
“commissary”   such as you describe.
           Article 5116, supra, authorizes the sheriff to&u~~ly
the “wants” of those prisoners confined in the jail.          -
fice has repeatedly held that the sheriff is authorized to pur-
chase all food and “necessary supplies" for the prisoners. Pur-
ther, that It Is not the duty of the Commissioners'Court, County
Auditor or the County PurchasingAgent to purchase the food and
necessary supplies of the prisoners but this duty is speclficall
imposed on the sheriff. Since all sheriffs have been compensate
on a salary basis since January 1, 1949, the sheriff cannot 'be
allowed specific fees or commissionsby the county for feeding
the prisoners In jail, but he is entitled to all actual and


                            -329-
Hon. Doug Crouch, page 3 (C- 67    )


necessary expenses Incurred by him for feeding the p"lsoners
In his custody. Attorney General's Opinions Nos. V-359 (19&T),
V-1188 (1951), and V-1232 (1951).
          Since this office can find neither express nor lm-
plied authority for the operation of a “commissary” as you
described, which sells toilet articles, etc., for the use of
prisoners In a county jail, we feel that the present operation
of the commissary is not wlthln the purview of existing law.
We are of the opinion that toilet articles and other personal
Items could be sold at cost to the prisoners to provide their
wants, as It would be within the purview of Article 5116, Ver-
non's Civil Statutes. We are of the further opinion that the
operation, supervisionand control of such a facility, to ln-
elude purchasing of merchandise,is vested in the sheriff.
                     SUMMARY
          The operation of a profit making "commissary"within
     the confines of the Tarrant County jail which sells
     toilet articles and authorized Items for the exclusive
     personal use and benefit of those legally confined there-
     in, is not authorized either expressly or implledly by
     existing law.
          However, the sheriff may supply at cost the necessary
     supplies for prisoners and the sheriff would have control
     over the purchase of such items for the prisoners within
     his jail.
                                       Sincerely,

                                       XACGONER CARR
                                       Attorney General


BM:wb:mkh                              Bill Morse, Jr.
                                       Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Polk Shelton
Frank Booth
Norman Suarez
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone.


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