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DAN MORALES
 Al-rORNEY
        GENERAL                     December 11.1991


    Honorable Travis S. Ware                   Opinion No. DM-67
    Chinal District Attorney
    Lubbock County                             Re: Operation of a jail commissary
    P. 0. Box 10536                            under section 351.0415 of the Local
    Lubbock, Texas 794083536                   Government Code (RQ-148)

    Dear Mr. Ware:

           You ask several questions about the operation of a jail commissary under
    section 351.0415 of the Local Government Code. Section 351.0415(a) provides as
    follows:

                 The sheriff of a ‘countywith a population of under 1,000,000
             according to the last federal census may operate, or contract
             with another person to operate, a commissary for the use of the
             prisoners committed to the county jail. The commissary must be
             operated in accordance with rules adopted by the Commission
             on Jail Standards.

    The sheriff has exclusive control of the commissary funds and is to maintain
    commissary accounts showing the amount of proceeds from the commissary
    operation and the amount and purpose of disbursements made from the proceeds.
    Id subset. (b). Subsection (c) sets out the purpose for which the sheriff may use
    “commissary proceeds.” The county auditor has authority to examine ‘jail
    commissary accounts.” Id subset. (d). See genem& Attorney General Opinions
    DM-19 (1991); JM-1121 (1989); MW-439 (1982); MW-143 (1980); C-67 (1963);
    Letter Qpinion LQ-90-42 (1990).

           You describe a situation in which the sheriff has contracted with a third party
    for the operation of a jail commissary. and you ask several questions about the
    application of section 351.0415 in that context. Your first question is whether the
    commissioners court has any authority in regard to the terms and conditions of such
    a contract.



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        Generally, the sheriff does not have authority to contract for the county.
Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941); Attorney General Opinion DM-19.
In this case, however, the legislature has given the sheriff express authority to enter
into a contract for the operation of a jail commissary. The commissioners court has
no authority to control the sheriffs exercise of discretion in this regard. See
generally Attorney General Opinions JM-1121 (1989); MW-439 (1982); H-1190
(1978). The sheriff must, of course, exercise his discretion in accordance with the
constitution and with his statutory authority.

        A significant limitation on the sheriffs authority to contract is the prohibition
in article III, section 51, of the Texas Constitution on the donation of public funds or
property. That provision does not prohibit the sheriff from contracting with a
private party to operate a jail commissary, but it does require that the county obtain
an adequate quid pro quo. Dot&on v. Marshall, 118 S.W.2d 621, 624 (Tex. Civ.
App.--Waco 1938, writ dism’d). You state that the lease in question requires the
operator to provide television sets and to pay 50 cents per square foot annually for
the space used to house the commissary. Whether this particular contractual
arrangement satisfies article III, section 51, is a fact question, which we cannot
resolve in the opinion process.

        You also ask whether the operator’s payments to the sheriff are “commissary
proceeds” that must be used for the benefit of inmates. Section 351.0415 makes
clear that any money the sheriff receives that is attributable to the operation of the
commissary is to be used for the benefit of inmates. See generally Attorney General
Opinion MW-439 at 4.

        Your third question is whether the county auditor may review the accounts
maintained by the commissary operator.          Subsection (b) of section 351.0415
provides that the sheriff has exclusive control of the commissary funds and that the
sheriff is to maintain commissary accounts showing the amount of proceeds from the
commissary operation and the amount and purpose of disbursements made from the
proceeds. Subsection (d) provides as follows:

              At least once each quarter of a county’s fiscal year, or more
          often if the county auditor desires, the auditor shall, without
          advance notice, fully examine the jail commimary accounts. The
          auditor shall verify the correctness of the accounts and report


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Honorable Travis S. Ware - Page 3           (DM-67)




         the findings of the examination to the commissioners court of
         the county at its next term beginning after the date the audit is
         completed.

Taken together, those provisions establish the county auditor’s right of access to
records showing the amount of money taken in by the commissary and the
disbursements from that money. The county auditor cannot be denied access to
such records, even if they are actually maintained by the commissary operator. The
county auditor would have no right to inspect other records of the operator.

                                   SUMMARY

              The county commissioners court may not interfere with the
         sheriffs exercise of discretion in contracting for the operation of
         a jail commissary under section 351.0415 of the Local
         Government Code. Any funds the sheriff receives that are
         attributable to the operation of the commissary are to be used
         for the~benefit of inmates in accordance with section 351.0415.
         The county auditor is authorized to review commissary accounts,
         even if the accounts are maintained by the operator of the
         commissary.




                                                 DAN ‘MORALES
                                                 Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret)
Special Assistant Attorney General




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Honorable Travis S. Ware - Page 4        (DM-67)




RENBA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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