                                             KEN PAXTON
                                        ATTORNEY GENERAL OF TEXAS




                                              August 8, 2017



Mr. Brandon S. Wood                                        Opinion No. KP-0159
Executive Director
Texas Commission on Jail.Standards                         Re: Whether certain expenditures of
Post Office Box 12985                                      commissary proceeds    violate  section
Austin, Texas· 78711                                       351.0415 of the Local Government Code
                                                           (RQ-0149-KP)

Dear Mr. Wood:

        You ask whether specific expenditures of commissary proceeds by a county sheriff violate
section 351.0415 of the Local Government Code. 1 Specifically, you ask whether a sheriff can use
commissary proceeds to provide compensation and "purchase equipment for a deputy not assigned
to the jail" or to "recruit and fund the salary of a jail employee not part of an inmate program."
Request Letter 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, but we can provide general
advice on the sheriff's authority. See Tex. Att'y Gen. Op. Nos. GA-1094 (2014) at 2 n.4, GA-0446
(2006) at 18 ("Questions of fact are not appropriate to the opinion process.").

        Section 351.0415 of the Local Government Code authorizes a county sheriff to operate "a
commissary for the use of the inmates committed to the county jail." TEX. Loe. Gov'T CODE
§ 351.0415(a) (requiring also that a commissary be operated under the rules of the Commission ori
Jail Standards), 37 TEX. ADMIN. CODE§§ 251.1-301.2 (Tex. Commission on Jail Standards, Part
9). Section 351.0415 gives the sheriff exclusive control over the commissary funds but limits the
sheriff's authority to spend commissary proceeds to five categories of expenditures. See TEX. Loe.
Gov'T CODE § 351.0415(b)(1 ), (c)(1 )-(5). Of those five categories, we understand your primary
concern involves the scope of subsection 351.0415(c)(5). See Request Letter at 1-2. Subsection
351.0415(c)(5) authorizes an expenditure of commissary proceeds for "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." TEX. Loe. Gov'T CODE
§ 351.0415(c)(5). You tell us that one county interprets this provision to allow for the
compensation and purchase of equipment for a deputy not assigned to the jail. Request Letter at
2. You explain that the "sheriff's reasoning [is] that the deputy could be called upon in an


        1
          See Letter from Brandon S. Wood, Exec. Dir., Tex. eomm'n on Jail Standards, .to Honorable Ken Paxton,
Tex. Att'y Gen. (Feb. 13, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
Mr. Brandon S. Wood- Page 2                           (KP-0159)



emergency, such as a riot, to assist in securing the jail." Id. You tell us further that some sheriffs
use commissary proceeds "for staff recruitment or training development." Id.

        The types of expenditures about which you ask involve equipment and personnel that you
suggest may not be directly associated with the jail. See id. at 2. As this office consistently
recognizes, the sheriff's "exclusive control of the commissary funds" authorizes the sheriff to
determine whether an expenditure falls within subsection 351.0415(c). TEX. Loe. Gov'T CODE
§ 351.0415(b)(l); see Tex. Att'y Gen. Op. Nos. GA-1094 (2014) at 2, GA-0901 (2011) at 2. The
sheriff's discretion, however, is not without limitation. The Legislature expressly provided that a
sheriff may not use commissary funds "to fund the budgetary operating expenses of a county jail."
TEX. Loe. Gov'T CODE § 351.0415(g). Moreover, the sheriff must generally spend commissary
funds to "benefit inmates of the county jail." Tex. Att'y Gen. Op. Nos. GA-0901 (2011) at 2, GA-
0791 (2010) at 2. Thus, under subsection 351.0415(c)(5) the sheriff may use the commissary funds
for "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," provided
that the expenditures do not fund the budgetary operating expenses of a county jail, and they
generally benefit the inmates of the county jail. TEX. Loe. Gov'T CODE§ 351.0415(c)(5). One
Texas court of appeals, considering the nature of a sheriff's control over commissary funds, noted
the limited nature of section 351.0415: "[C]ommissary proceeds are subject to county oversight
and may be spent only for limited purposes associated with the county jail operation." Mills v.
State, 941S.W.2d204, 208 (Tex. App.-Corpus Christi 1996, pet. ref'd). 2

        You do not provide many facts with respect to the job functions of the deputy not assigned
to the jail or the nature of the equipment purchased for use by that deputy, but the fact that the
deputy is not assigned to the jail suggests his or her function may not be associated with the county
jail operation within the scope of section 351.0415. Further, we question whether the possibility
of the deputy responding to an inmate riot is a circumstance too remote to be reasonably considered
an expenditure for a program, service, or activity that "provide[s] for the well-being, health, safety
and security of the inmates and the facility" in satisfaction of subsection 351.0415(c)(5). TEX.
Loe. Gov'T CODE § 351.0415(c)(5). Likewise, with regard to using commissary proceeds for staff
recruitment or training and development, more factual information is needed to reach a conclusion
about the propriety of the expenditure. However, spending the funds on general recruitment,
training, and development, and not specifically for the staffing of programs or services that provide
for the "well-being, health, safety, and security of the inmates and the facility," would fall outside
the scope of subsection 351.0415(c)(5). While the sheriff must determine the appropriateness of
these expenditures in the first instance, the sheriff's determination is subject to judicial review
under an abuse of discretion standard, as well as administrative review by the Commission on Jail
Standards. See Tex. Att'y Gen. Op. Nos. GA-0901 (2011) at 3 (recognizing the actions of a sheriff
are subject to judicial review under an abuse of discretion standard), JC-0214 (2000) at 6 (same),
JM-1199 (1990) at 2-3 (same); see also TEX. Gov'T CODE§ 511.011 ("If the commission finds
that a county jail does not comply with state law ... or the rules, standards, or procedures of the
commission, it shall report the noncompliance to the county commissioners and sheriff of the

        2 Upon revievv· of theA1i!/s v. State decision, the Texas Supreme Court determined that the judgment and the
legal principles announced in the opinion of the coutt of appeals were correct. Thus. "[t]he comt of appeals· opinion
in the case has the same precedential value as an opinion of the Supreme Court." Tr:x. R. /\l'P. P. 56. l(c).
Mr. Brandon S. Wood- Page 3                (KP-0159)



county responsible for the county jail and shall send a copy ... to the governor."), 511.012(a)
(giving sheriff a reasonable period up to one year "to comply with commission rules and
procedures and state law"), 37 TEX. ADMIN. CODE§ 291.3(5) (requiring that commissary proceeds
be spent "in accordance with the Local Government Code§ 351.0415").
Mr. Brandon S. Wood- Page 4                  (KP-0159)



                                      SUMMARY

                       Local Government Code section 351.0415 limits an
               expenditure of commissary proceeds to items or services that benefit
               inmates.    Because of the sheriff's exclusive authority over
               commissary proceeds under section 351.0415, the propriety of an
               expenditure from those funds is a question for the sheriff to
               determine in the first instance subject to administrative review by
               the Commission on Jail Standards or judicial review for abuse of
               discretion.

                                             Very truly yours,




                                             KEN PAXTON
                                             Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee
