    OFFICE OF THE ATnxNEV   GENERAL.   STATE OF TEXAS

   JOHN      CORNYN




                                                 October 7, 1999



The Honorable Tim Curry                                 Opinion No. JC-0122
Criminal District Attorney
401 West Belknap Street                                 Re: Whether a purchase from jail-commissary
Fort Worth, Texas 76196-0201                            proceeds is subject to statutory competitive
                                                        procurement requirements (RQ-0052-JC)

Dear Mr. Curry:

         This office determined in Attorney General Opinion MW-439 that a purchase made withjail-
commissary proceeds is subject to competitive procurement requirements. Tex. Att’y Gen. Op. No.
MW-439 (1982) at 4. After that opinion was issued, the legislature adopted section 351.0415 ofthe
Local Government Code,seeAct ofMay28,1989,71stLeg.,R.S.,           ch. 980, sec. 1,s 351.0415,1989
Tex. Gen. Laws 4056, which gives the sheriff “exclusive control of the commissary funds” and
restricts the kinds ofpurchases for which the sheriffmay expend commissary proceeds. TEX.LOCAL
GOV'T CODE ANN. 5 351.0415(b)(l), (c) (V emon 1999). You ask whether section 351.0415’s
adoption supersedes Attorney General Opinion MW-439 to the extent the opinion concludes that a
purchase made with jail-commissary proceeds is subject to competitive procurement requirements
found in the County Purchasing Act (the “Act”), chapter 262, subchapter C ofthe Local Government
Code. See Letter from Honorable Tim Curry, Criminal District Attorney, to Attorney General John
Comyn (Apr. 1,1999) (on file with Opinion Committee) [hereinafter “Request Letter”]. We believe
it does.

        Attorney General Opinion JM- 112 1, about which you also ask, does not affect Attorney
General Opinion MW-439.        Attorney General Opinion JM-1121 applies to a contract for the
operationofthecommissary.      SeeTex. Att’y Gen. Op.No. JM-1121(1989) at 1; Letter &Brieffrom
Honorable Tom O’Connell, Collin County Criminal District Attorney, to Sarah Woelk, Assistant
Attorney General (Oct. 16, 1989) (on tile with Opinion Committee) (proposing that sheriff “may
operate, or contract with another person to operate,” commissary). The opinion does not apply to
a sheriffs authority (or lack thereof) to contract for goods or services to be purchased from
commissary proceeds. A contract to operate ajail commissary differs from a contract to expend jail-
commissaty proceeds, and the legal principles applicable to one may not apply to the other. Having
disposed of Attorney General Opinion JM-1121, we turn to the issue you raise.

       We presume the funds at issue resemble the commissary            proceeds described in Attorney
General Opinion MW-439:

                  A private vendor [operates the jail commissary] pursuant to a
                  negotiated arrangement whereby the vendor pays a fixed sum (based
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               upon prisoner population) and a percentage of the receipts for the
               concession. The purchase of items for sale, the prices to be charged
               for them, and other similar management decisions are left to the
               concessionaire.     The amounts realized from the vendor are not
               “profits,” strictly speaking, but “income” in the nature of rental
               income.

Tex. Att’y Gen. Op. No. MW-439 (1982) at 3. You indicate that the sheriff in your county has over
$300,000 in jail-commissary proceeds. Request Letter, supua, at 1.

        The Act generally requires a county to competitively procure a contract requiring an
expenditure exceeding $25,000 from the county treasury. TEX. LOCAL GOV’T CODE ANN. 5
262.023(a),(b) (Vernon 1999),amendedbyActofMay21,1999,76thLeg.,R.S.,ch.                505,s 2,1999
Tex. Sess. Law Serv. 2989,299O; see also TEX. LOCALGOV’TCODEANN. 5 262.022(l), (3) (Vernon
1999) (defining “bond funds” and “current funds”). “Before a county may purchase one or more
items under a contract that will require an expenditure exceeding $25,000 [from the county treasury],
the commissioners court         must comply with the competitive bidding or competitive proposal
procedures prescribed by this subchapter.” Id. 5 262.023(a), amended by Act ofMay 21,1999,76th
Leg., R.S., ch. 505, 5 2, 1999 Tex. Sess. Law Serv. 2989,299O; see also TEX. LOCALGOV’T CODE
ANN. $5 262.022(3), .023(b).

         This office determined in 1982 that items purchased from commissary proceeds must be
purchased by the commissioners court, not by the sheriff, and that such purchases are subject to
statutory competitive procurement requirements. See Tex. Att’y Gen. Op. No. MW-439 (1982) at
3-5. Contemporaneous      state law-the Act’s forerunner-required  a county to purchase all supplies
for the use of the “county or any of its officers, departments, or institutions” on the basis of
competitive bids. See id. at 4 (quoting TEX. REV. CIV. STAT. ANN. art. 1659a, repealed by Act of
May 27, 1985,69th Leg., R.S., ch. 641, § 1 l(l), 1985 Tex. Gen. Laws 2377,2384, and replaced by
County Purchasing Act, Act of May 27, 1985,69th Leg., R.S., ch. 641, 5 1, 1985 Tex. Gen. Laws
2377, 2377-79).      Because at that time (before the adoption of section 351.0415 of the Local
Government Code) the sheriff had no authority either to enter a contract on behalf of the county or
to spend commissary proceeds, the opinion suggests that the sheriff may not expend or determine
how to expend the proceeds. See Tex. Att’y Gen. Op. No. MW-439 (1982) at 4-5. To the contrary,
commissary proceeds must be “subject to public accountability and statutory safeguards respecting
its expenditure.” Id. at 3. Thus, the opinion concludes, only a commissioners court may expend
commissary proceeds, and the court must do so in compliance with applicable competitive
procurement requirements. See id. at 5.

         Subsequently, the legislature adopted section 351.0415 of the Local Government Code, see
Act ofMay28,1989,71stLeg.,RS.,ch.          980, sec. 1,s 351,0415,1989Tex.   Gen. Laws4056,which
authorizes a sheriff to operate a commissary in the county jail and to expend commissary proceeds.
See TEX. LOCAL GOV’T CODE ANN. 5 35 1.0415 (Vernon 1999). Subsection (a) expressly authorizes
The Honorable Tim Curry - Page 3                (JC-0122)




a county sheriff either to operate a jail commissary him- or herself or to contract with another person
to do so. See id. 5 35 1,0415(a). Subsections(b) and(c) pertain specifically to commissary proceeds:

                     (b) The sheriff

                         (1)     has exclusive control of the commissary   funds; [and]


                       (2)     shall maintain commissary accounts showing the
                amount of proceeds from the commissary operation and the amount
                and purpose of disbursements made from the proceeds;




                     (c) The sheriff may use commissary     proceeds only to:

                        (1)    fund, staff, and equip a program addressing the social
                needs ofthe county prisoners, including an educational or recreational
                program and religious or rehabilitative counseling;

                         (2)   supply county prisoners        with   clothing,      writing
                materials, and hygiene supplies;

                         (3)     establish, staff, and equip the commissary      operation;
                or

                        (4)     fund, staff, and equip a library for the educational use
                of county prisoners.

Id. 5 351,0415(b), (c) (emphasis added); see also Tex. Att’y Gen. Op. No. MW-143 (1980) at 2
(concluding that sheriff may operate jail commissary at profit). The county auditor must “fully
examine the commissary accounts” at least once each fiscal year and report his or her findings to the
commissioners court. Id. 5 351.0415(d).

        Section 35 1.0415 is one of a growing number of statutes authorizing the creation of special
funds that appear to be outside of“county funds” for some or all purposes. For example, article 59.06
of the Code of Criminal Procedure creates, for the disposition of forfeiture proceeds, “a special fund
in the” county or municipal treasury to benefit the prosecutor’s office or the local law-enforcement
agency. TEX. CODE GRIM. PROC. ANN. art. 59.06(c) (Vernon Supp. 1999). While the beneficiary
prosecutor or law-enforcement agency has sole authority to determine how to expend the forfeiture
fund, the money may be spent only after a budget has been submitted to the commissioners court.
See id. art. 59.06(d). Similarly, the hot-check fund, established under article 102.007 of the Code of
Criminal Procedure, “shall be deposited in the county treasury in a special fund to be administered
by the” prosecutor whose office collects and processes a hot check. See id. art. 102.007(a), (f).
“Expenditures from [the hot-check] fund shall be at the sole discretion of’ the prosecutor. Id. art.
The Honorable   Tim Curry - Page 4             (JC-0122)




102.007(f). On the other hand, section 23.122 of the Tax Code creates the motor-vehicle-inventory-
tax escrow fund held outside the county treasury, the interest on which becomes the “sole property”of
the county tax assessor-collector.  TEX. TAX. CODE ANN. 5 23.122(c) (Vernon Supp. 1999). To the
extent that the statutes creating special funds do not expressly specify, these special funds raise
questions regarding their status as “county funds” and procedures applicable to them.

        We conclude that an expenditure from commissary proceeds need not be competitively
procured.   First, an expenditure from commissary proceeds is not subject to the Act. The Act
contemplates that only the county commissioners court may enter a contract on behalf of the county.
See TEX. LOCAL GOV’T CODE ANN. 5 262.023(a). The Act does not apply to purchases within the
exclusive authority of a county official other than the county commissioners        court. See id.
Accordingly, the Act does not apply to an expenditure that a sheriffmay make without the assistance
of the commissioners court.

         Because a sheriff may contract to expend commissary proceeds without the commissioners
court’s assistance, the sheriff need not award contracts expending such proceeds using the Act’s
competitive procurement procedures.      Section 351.0415 gives the sheriff “exclusive control” of
commissary funds. “Control” denotes “the function or power ofdirecting and regulating; domination,
command, sway.” III OXFORD ENGLISH DICTIONARY 852 (1989); accord Carter v. Curter, 359
S.W.2d 184, 187 (Tex. Civ. App.-Waco 1962), writ dism’d, 362 S.W.2d 646 (Tex. 1962); see also
TEX. GOV’TCODE ANN. 5 311 .Ol l(a) (Vernon 1998) (directing interpreter to define statutory words
consistently with grammar and common usage). Additionally, the sheriff has sole power to decide
what items to purchase from commissary proceeds (within the statutory parameters, see TEX. LOC.
GOV’T CODE ANN. 5 35 1,0415(c)) and how to select a vendor.

         Second, section 35 1.0415 does not require the sheriffto competitively procure purchases from
commissary proceeds. Subsection (b)(3), which requires a sheriff to “accept new bids to renew
contracts of commissary suppliers every five years,” does not apply to the expenditure of commissary
proceeds. Cf: supra p. 1 (explaining why Attorney General Opinion JM-1121(1989) does not apply).

        Consequently, while a sheriff may award a contract using a competitive process, neither the
Act nor section 351.0415 of the Local Government Code requires him or her to do so. Cf: id.
4 35 1.0415(a), (b)(3). In light of this conclusion, we must conclude that section 35 1.0415 supersedes
Attorney General Opinion MW-439 to the extent the opinion determines that the expenditure of
commissary proceeds is subject to competitive bidding.
TheHonorableTimCmry        - Page 5          (JC-0122)




                                       SUMMARY

                       A sheriff may expend commissary proceeds under section
               35 1.0415 of the Local Government Code without complying with the
               County Purchasing Act, chapter 262, subchapter C of the Local
               Government Code. To the extent Attorney General Opinion MW-439
               (1982) concludes that an expenditure from commissary proceeds must
               be competitively bid by the county commissioners court, it has been
               superseded by the enactment of section 35 1.0415.




                                      Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
