                             ATTORNEY GENERAL OF TEXAS
                                          GREG       ABBOTT




                                             December 22, 2011



The Honorable Robert Henneke                             Opinion No. GA-0901
Kerr County Attorney
County Courthouse, Suite BA-l 03                         Re: Sheriffs use of the county jail commissary
700 Main Street                                          fund to train inmates to perform certain activities
Kerrville, Texas 78028                                   (RQ-0981-GA)

Dear Mr. Henneke:

       You inquire about a sheriffs use of the county jail commissary fund to train inmates to
perform certain activities. Specifically, you ask:

                 1. Would a sheriff s expenditure of commissary proceeds to teach
                 jail inmates to build and maintain a water catchment system to be
                 used to irrigate the jail's inmate garden operated as part of the
                 sheriff s work program qualify as a permitted expenditure pursuant
                 to Tex. Local Gov't Code § 351.0415(c)?

                 2. Would a sheriff s expenditure of commissary proceeds to pay for
                 training and materials for energy efficient renovations to the county
                 jail in connection with an apprenticeship skills training program for
                 inmates qualify as a permitted expenditure pursuant to Tex. Local
                 Gov't Code § 351.0415(c)?1

Because the answers to your questions require a similar analysis in each case, we will discuss those
questions together.

        You describe the kind of program contemplated by the sheriff as follows:

                 The Kerr County Sheriff operates a work program whereby inmates
                 volunteer to labor and receive credit from the county sentence they
                         •
                 are servmg .... 2



         1Letter and Brief from Honorable Robert Henneke, Kerr County Attorney, to Honorable Greg Abbott, Attorney
General of Texas (June 24, 2011), https:llwww.oag.state.tx.us/opin/indexJq.shtml ("Request Letter" and "Brief'
respectively).

        2
         See TEX. CODE CRIM. PROC. ANN. art. 43.10 (West Supp. 2011).
The Honorable Robert Henneke - Page 2           (GA-0901)



               The Kerr County Sheriff operates an inmate garden as part of this
               work program .... The Sheriff has recruited several certified "Master
               Gardeners" who volunteer their time overseeing the gardening and
               teaching inmates horticulture skills. . .. [The] Sheriff's garden
               program benefits the recreational, well-being, and health needs ofthe
               inmates who participate by allowing them to be outside and to be able
               to exercise through the work performed....

               Kerr County has a local business specializing in water catchment
               system construction that has expressed interest as part of an
               apprenticeship program. . .. The concept of this apprenticeship
               program would be to train and educate inmates in "green"
               technologies.

               While the hands-on labor would be provided by participating inmates,
               Kerr County proposes to pay for the parts and materials, expertise of
               the local business to oversee the project, and training of the inmates
               by the local business out of commissary proceeds ....

Brief at 1-2 (citation omitted) (footnote added).

        The sheriff of each county is the "keeper of the county jail." TEX. Loc. GOY'T CODE ANN.
§ 3S1.041 (a) (West 200S). The sheriff or his designee "may operate, or contract with another person
to operate, a commissary for the use of the inmates committed to the county jail." Id. § 3S1.041S(a).
The sheriff or his designee "has exclusive control of the commissary funds." Id. § 3S1.041S(b)(1).
See generally Tex. Att'y Gen. Op. No. GA-0814 (2010). Commissary proceeds may be used only
to do the following, in relevant part:

                      (1) fund, staff, and equip a program addressing the social
               needs of the inmates, including an educational or recreational
               program and religious or rehabilitative counseling; ... or



                      (S) fund physical plant improvements, technology,
               equipment, programs, services, and activities that provide for the
               well-being, health, safety, and security ofthe inmates and the facility.

TEX. Loc. GOy'T CODE ANN. § 3S1.041S(c) (West 200S). Thus, pursuant to the terms of section
3S1.041S(a), "the commissary fund must be used to benefit inmates of the county jail." Tex. Att'y
Gen. Op. No. GA-0791 (2010) at 2. Moreover, a commissioners court "may not use commissary
proceeds to fund the budgetary operating expenses of a county jail." TEX. Loc. GOY'T CODE ANN.
§ 3S1.041S(g) (West 200S).
The Honorable Robert Henneke - Page 3             (GA-090l)



         As you indicate, while the control of commissary funds is well established, "interpretation
of what commissary profits and proceeds may be spent for remains undeveloped." Brief at 3. The
Sheriff who is the subject of your request "asserts that its proposed apprenticeship program meets
the criteria of TEX. LOCAL GOV'T CODE § 351.0415(c) so as to authorize expenditure of commissary
proceeds to pay for the parts, material, and training for the' green' projects and energy efficient skills
to be taught to jail inmates." Brief at 4. Furthermore, he declares that such "programs would be
educational for the inmates [and] provide programs and services providing for the well-being
and health of the inmates ... to (1) earn credit towards their sentence through the sheriff's work
program ... ; (2) learn a job skill applicable once released; and (3) enjoy the benefit of exercise
through productive work." [d.

        The described expenditures appear to fall within the category of an "educational program,"
as well as the funding of "equipment, programs, services, and activities that provide for the well-
being, health, safety, and security ofthe inmates of the facility." However, based solely on the facts
presented in your request, we cannot so conclude as a matter of law. Because the Sheriff has
exclusive control of the commissary funds, and specific authority to "use commissary proceeds only"
for statutory purposes, we conclude that the Sheriff is authorized to initially determine that these
programs fall within the ambit of section 351.0415(c), subject to judicial review of the Sheriff's
determination under an abuse of discretion standard. Cf Fort Bend Cnty. Wrecker Ass'n v. Wright,
39 S.W.3d 421,425-26 (Tex. App.-Houston [lst Dist.] 2001, no pet) (concluding that a sheriff
"has the power to make and enforce rules, regulations, and policy").
The Honorable Robert Henneke - Page 4          (GA-0901)



                                      SUMMARY

                      A county sheriff controls the county j ail commissary fund, and
              as a result, the sheriff must make the initial determination, subject to
              judicial review, as to whether proceeds from the fund may be used for
              particular purposes. The proceeds may be used only to fulfill one of
              the five purposes described in section 351.0415(c) of the Local
              Government Code.

                                              Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
