                                 ATTORNEY GENERAL OF TEXAS
                                               GREG ABBOTT




                                                  August 23,2010



The Honorable Richard P. Bianchi                               Opinion No. GA-0791
Aransas County Attorney
301 North Live Oak Street                                      Re: Use and management of a county jail
Rockport, Texas 78382                                          commissary fund under Local Government
                                                               Code section 351.0415 (RQ-0841-GA)

Dear Mr. Bianchi:

        You request an opinion about the use and management of funds generated by the operation
of the Aransas County jail commissary (the "commissary'V Local Government Code section
351. 0415 authorizes a sheriff or the sheriff s designee to operate a commissary for the use of inmates
in the county jail. See TEX. Loc. GOV'T CODE ANN. § 3S1.041S(a) (Vernon 2005); 37 TEx. ADMIN.
CODE § 291.3 (2010) (Tex. Comm. on Jail Standards, Inmate Commissary Plan). The sheriff or his
designee "has exclusive control of the commissary funds" and must maintain accounts "showing
the amount of proceeds from the commissary operation and the amount and purpose of
disbursements made from the proceeds." TEx. Loc. GOV'T CODE ANN. § 3SI.041S(b)(1)-(2)
(Vernon 2005). Commissary proceeds may be used only for the purposes set out in subsection
3SI.041S(c), which include the costs of operating the commissary and various programs to benefit
inmates. See id. § 35 1.041 S(c).

        You state that funds generated from the Aransas County jail commissary have been deposited
with the county treasurer in reliance on Local Government Code section 113.021, and the interest
on the commissary fund account has been deposited into the county general fund since approximately
February of2008. Request Letter at I. Section 113.021 reads in part:

                        (a) The fees, commissions, funds, and other money belonging
                  to a county shall be deposited with the county treasurer by the officer
                  who collects the money....



         IRequest Letter at I (available at http://www.texasattomeygeneraI.gov). The conunissary funds you inquire
about are the proceeds generated by the operation of the jail conunissary, not the inmate's personal funds taken from him
upon admission, earned while injail, or received from others and placed in an account for the inmate's use. See Tex.
Att'y Gen. Op. No. GA-0534 (2007) at 1-2 (describing inmate's account).
The Honorable Richard P. Bianchi - Page 2                       (GA-0791)



                        (b) The county treasurer shall deposit the money in the county
                   depository in a special fund to the credit of the officer who collected
                   the money....

                         (c) The interest accruing on the money in the special fund is
                   for the benefit of the county in accordance with other law.

TEx. Loc. GOV'TCODEANN. § 113.021 (Vernon 2008).

       You suggest that there is a conflict between the requirements of section 113.021 and the
sheriffs "exclusive control of the commissary funds" under section 351.0415. Request Letter at
1-2. You wish to know whether the proceeds of the commissary operation are "funds belonging to
the county" within Local Government Code section 113.021. Id.

        Not all funds held by a county officer in his or her official capacity are funds "belong[ing]
to the county." See Tex. Att'y Gen. Op. Nos. GA-0704 (2009) at 1-2 (stating that Local Government
Code section 115.901(a) authorizes the county auditor to examine the accounts of county officers,
whether or not they relate to money belonging to the county); JM-1263 (1990) at 2-3 n.2 (stating
that Local Government Code section 112.001 does not authorize a county auditor to adopt
regulations with respect to funds and fees that do not belong to the county). We consider whether
the commissary fund is a fund "belonging to a county" within the meaning of section 113 .021. TEx.
Loc. GOV'T CODE ANN. § 113.021 (Vernon 2008).

        First, pursuant to the express terms of section 351.0415(c), the commissary fund must be
used to benefit inmates of the county jail. See id. § 351.0415(c) (Vernon 2005);2 see also Tex. Att'y
Gen. Op. No. MW-143 (1980) at2 (stating that all profits from operating ajail commissary must be
spent for the "benefit, education, and welfare" of jail imnates). Thus, the proceeds from operating
the commissary are funds held by the sheriff for the benefit of a specific group of persons.

         Second, the sheriff or his designee "shall maintain commissary accounts showing the amount
ofproceeds from the commissary operation and the amount and purpose of disbursements made from
the proceeds." TEx. Loc. GOV'T CODE ANN. § 351.0415(b)(2) (Vernon 2005); see also Mills v.
State, 941 S.W.2d 204,206 (Tex. App.-Corpus Christi 1996,pet. refd) (stating that the county
auditor met with the sheriff to explain accounting procedures and record keeping for the proposed
jail commissary). In contrast, the county auditor ordinarily maintains "an account for each county,
district, or state officer authorized or required by law to receive or collect money ... that is intended
for the use of the county or that belongs to the county." TEx. Loc. GOV'T CODE ANN. § 112.005(a)


          'Commissary proceeds may be used only for an educational or recreational program and religious or
rehabilitative counseling; clothing, writing materials, and hygiene supplies for inmates; an educational and a law library
for use of inmates; funding 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; and the expenses of operating the
commissary. TEx. Loc. GOV'T CODE ANN. § 351.0415(c) (Vernon 2005). "A commissioners court may not use
commissary proceeds to fund the budgetary operating expenses of a county jail." Id § 35 1.04 I 5(g).
        The Honorable Richard P. Bianchi - Page 3                   (GA-079I)




        (Vernon 2008);3 see also id. § 112.002 (authorizing the county auditor to regulate collection and
        accounting of funds that belong to the county). The sheriff is thus authorized to maintain
        commissary accounts, just as a justice of the peace is authorized to place restitution on a hot check
        in a separate bank account not subjectto the county auditor's regulation, because the restitution does
        not belong to the county but to the holder of the dishonored check. See Tex. Att'y Gen. Op. No.
        DM-396 (1996) at 4.

                Third, section 351.0415 expressly grants the sheriff or his designee "exclusive control" of
        the commissary funds. TEx. Loc. GOY'T CODE ANN. § 351.0415(b)(1) (Vernon 2005). We give the
        term "exclusive control" its plain meeting. See TEx. GOy'TCODEANN. § 311.011 (Vernon 2005).
        The term "exclusive" has been defined as "vested in one person alone." See Kinnard v. Circle K
        Stores, Inc., 966 S.W.2d 613, 617 (Tex. App.-SanAntonio 1998, no pet.). This office has defined
        "control" for purposes of Local Govemment Code section 351.0415 as "the function or power of
        directing and regulating; domination, command, sway." Tex. Att'y Gen. Op. No. JC-0122 (1999)
        at 4. Thus, the authority to direct and regulate the commissary fund is vested solely in the sheriff,
        subject to the limits found in section 351.0415. See TEx. Loc. GOy'TCODEANN. § 351.0415(b)(l)
        (Vernon 2005); see also Mills, 941 S. W.2d at 208 (stating that commissary proceeds are "maintained
        by the Sheriff s Department").

                   This office determined in Attorney General Opinion JC-0122 that purchases from jail-
          commissary proceeds are not subject to the competitive procurement requirements in the County
          Purchasing Act, Local Govemment Code chapter 262, subchapter C (the "Act"). See Tex. Att'y Gen.
          Op. No. JC-0122 (1999) at 4. The opinion, noting that the Act applied only to purchases by the
          commissioners court, concluded that the sheriff s "exclusive control" of the commissary funds
          meant that his or her purchases from jail commissary proceeds were not subject to the Act. See id.
          (citing Texas Local Govemment Code section 351.0415). In reaching its conclusion, Attorney
          General Opinion JC-O 122 stated thatthe fund created by Local Government Code section 351.0415
          appeared "to be outside of 'county funds' for some or all purposes." Id. at 3; see Tex. Att'y Gen.
          Op. Nos. GA-0364 (2005) at 6 (constable may retain a fee for delivering a notice to vacate premises);
          DM-396 (1996) at 3 (restitution on a dishonored check made to a justice of the peace belongs to the
          holder of the dishonored check and does not belong to the county); see also Tex. Att'y Gen. Op. No.
          JC-0062 (1999) at 2 (fees collected by a prosecutor for processing "hot checks" are "money
          belonging to the county" within Local Government Code section 113.021(c)). In our opinion, the
- -- --·sheifrr·i;"exdiisivecoriiiol"ofthecoiriiriissaryfundaIsomeans··thitfthesheriffrefuiils·cusfoay 6f-
          the fund instead of having to deposit it with the county treasurer pursuant to section 113.021(a).




                'The county auditor must examine the commissary accounts at least annually if the sheriff supervises the jail.
       See TEx. Loc. Gov'T CODE ANN. § 351.0415(d) (Vernon 2005). A private vendor operating a detention facility must
       have the commissary accounts examined by an independent auditor at least annually. See id. § 35 1.04 I5(e); see also
       Tex. Att'y Gen. Op. No. GA-0704 (2009) at 1-2 (concluding that Local Government Code section 115.901(a) requires
       the auditor to examine all accounts held by the sheriff in his official capacity, not merely county records held by the
       sheriff).
The Honorable Richard P. Bianchi - Page 4            (GA-0791)



         You also ask whether the interest accruing on the commissary fund belongs to the county or
to the commissary fund. Request Letter at 1. Texas courts follow the common-law rule that interest
follows principal. See Phillips v. Washington Legal Found., 524 U.S. 156, 165--66 (1998); Sellers
v. Harris County, 483 S.W.2d 242, 243 (Tex. 1972); Lawson v. Baker, 220 S.W. 260, 272 (Tex. Civ.
App.-Austin 1920, writ refd). As the Texas Supreme Court has stated, "[i]nterest ... is an
increment that accrues" to the principal fund earning it and, unless lawfully separated from the
principal, becomes part of the principal. Sellers, 483 S.W.2d at 243. Section 1 l3.021 (c), in
providing that the interest on "money belonging to a county" will be "for the benefit of the county,"
separates interest from the principal of money that belongs to the county. See TEx. Loc. GOV'T
CODEANN. § 113 .021 (a), (c) (Vernon 2008). Because we have concluded that commissary proceeds
are not funds "belonging to a county" under section 1l3. 021 (a), any interest earned on these proceeds
would not be severed from principal pursuant to section 1l3.021(c) and would instead remain part
of the commissary fund. Accordingly, interest on the commissary fund remains with the fund.
The Honorable Richard P. Bianchi - Page 5         (GA-079l)



                                      SUMMARY

                      Local Government Code section 351.0415 grants the sheriff
               exclusive control of funds generated by the operation of a jail
               commissary, requires the sheriff to maintain commissary accounts,
               and provides that commissary proceeds may be used only to benefit
               inmates of the county jail. Commissary proceeds are not funds
               "belonging to the county" under Local Government Code section
               113.021(a).

                      Texas courts follow the common-law rule that interest follows
              principal unless lawfully separated from the principal. Section
              113.021 separates interest from funds "belonging to the county" and
              allocates it to the county general fund. Because the commissary fund
              is not a fund "belonging to the county," interest remains with the
              commissary fund.

                                           Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
