                                  ATTORNEY GENERAL OF TEXAS
                                               GREG        ABBOTT




                                                    April lo,2003



The Honorable Bruce Isaacks                                  Opinion No. GA-0059
Criminal District Attorney
Denton County                                                Re: Proper disposition of funds generated by the
1450 East McKinney, Suite 3 100                              county jail inmate telephone contract
P.O. Box 2344                                                (RQ-0629-JC)
Denton, Texas 76202

Dear Mr. Isaacks:

        You ask whether “revenues generated from the inmate telephone contract” may be used by
the Denton County Commissioners     Court for any legitimate county purpose or whether those
revenues must be expended solely for the benefit of inmates of the Denton County Jail.’

        Your question arises from a controversy between the Sheriff and the Commissioners Court
of Denton County. The Sheriff believes that the revenues generated by the inmate telephone contract
should properly be considered part of the commissary fund and used only to benefit inmates.2 The
Commissioners Court contends, by contrast, that the revenues belong to the county’s general. fund,
and may be used for any legitimate county purpose.3

         Section 3 5 1.04 15 of the Local Government Code provides that a county sheriff “may operate,
or contract with another person to operate, a commissary for the use of the prisoners committed to
the county jail.” TEX. Lot. GOV’T CODE ANN. 8 351.0415(a) (Vernon Supp. 2003). The sheriff
“has exclusive control of the commissary funds,” id. 8 35 1.0415(b), and “may use commissary
proceeds only to” provide for the needs of county inmates, id. 8 35 1.0415(c). Permissible uses
include provision of educational and recreational programs, religious and rehabilitative counseling,
clothing, writing materials, hygiene supplies, and the funding, staffing, and equipping of a library.
See id. 8 351.0415(c).



         ‘Letter from Honorable Bruce Isaacks, Criminal District Attorney, Denton County, to Honorable John Comyn,
Texas Attorney General at 1 (Oct. 3 1,2002) (on file with Opinion Committee) [hereinafter Request Letter].

         *See Brief from Honorable Weldon Lucas, Denton County Sheriff, to Chair, Opinion Committee,       Office of the
Attorney General (Dec. 18,2002) (on file with Opinion Committee) [hereinafter Sheriffs Brief].

           3See Brief from Robert Schell, Assistant District Attorney, Denton County, to Honorable   Greg Abbott, Texas
Attorney    General (Jan. 17,2003) (on file with Opinion Committee).
The Honorable Bruce Isaacks     - Page 2          (GA-0059)




         In Attorney General Opinion DM-19 (199 l), this office addressed the precise questions you
present. That opinion noted that “section 35 1.0415 . . . codified . . . the conclusion in Attorney
General Opinion MW-143 that proceeds from a jail commissary were to be devoted to the benefit
of jail inmates.” Tex. Att’y Gen. Op. No. DM-19 (1991) at 2. Opinion DM-19 also observed that
section 35 1.0415 specifies that “ajail commissary is to be operated in accordance with rules adopted
by the Commission on Jail Standards.” Id. In those rules, “[tlelephone privileges and commissary
privileges are treated as separate categories.” Id. (citing 37 TEX. ADMIN. CODE 9 291 .l). On the
basis that “the cornmission did not understand the term ‘commissary’ to include pay telephones,”
Attorney General Opinion DM-19 concluded that proceeds from pay telephones in county jails are
not part of the commissary fund and should be paid to the county treasurer. Id. at 2-3.

         The legislature has not amended section 35 1.0415 or enacted any other law that would
change that conclusion. The rules of the Commission on Jail Standards (“the Commission”) that
distinguish between the “inmate telephone plan” and the “inmate commissary plan” are precisely the
same as they were when Attorney General Opinion DM-19 was issued in 1991. The latter rule
requires the inmate commissary plan to “provide that all expenditures from commissary proceeds
be made in accordance with the Local Government Code, 5 35 1.0415.” 37 TEX. ADMIN. CODE
8 291.3(5) (2002). The former rule makes no provision as to the disposition of proceeds from the
“inmate telephone plan.” See id. 8 291.1. Furthermore, two subsequent attorney general opinions
have followed DM-19. In Attorney General Letter Opinion 96-032, this office noted that, since
 1976, the Commission “has had rules in force providing for the operation of jail commissaries,
and, moreover, treating jail telephone services as distinct.” Tex. Att’y Gen. LO-96-032, at 2. The
opinion concluded that the Commission “is not authorized now to adopt a rule to include telephone
service within the commissary services provided for in section 35 1.0415.” Id. at 3. Likewise, in
Attorney General Letter Opinion 97-030, this office concluded that, because the provision of
telephone services to inmates does not fall within section 35 1.0415, “a sheriff has no contracting
authority regarding the provision of telephone service to inmates.” Tex. Att’y Gen. LO-97-030,
at 4.

        The Sheriff and the Commissioners Court disagree about the meaning          of the following
language in Letter Opinion 97-030, and have asked that we address the matter:

                We note that neither rule nor statute authorizes the county to profit
                from providing telephone services to inmates. Attorney General
                Opinion MW-143 decided that a jail commissary could be operated
                at a profit ifall profits are spent for the “benefit, education, and
                welfare” of the jail inmates. . . . This conclusion was codified in
                section 35 1.0415 of the Local Government Code. . . . We believe that
                revenues generated by providing access to telephone service, as
                required by commission rule, should be treated in the same fashion,
                even in the absence of legislation dictating that result.

Id. at 6 (emphasis  added) (citations omitted). The Sheriff suggests that this statement supports his
position that the telephone contract revenues are part of the commissary fund. See Sheriffs Brief,
The Honorable   Bruce Isaacks   - Page 3           (GA-0059)




supra note 2, at 2. However, the view articulated in Letter Opinion 97-030, that proceeds from the
inmate telephone contract must be used solely for the benefit of inmates, is based on authorities that
antedate the adoption of section 35 1.0415, and are thus no longer controlling. See, e.g., Tex. Att’y
Gen. Op. Nos. MW-143 (1980) (sheriff may operate a commissary only if “all profits are spent for
the benefit, education, and welfare of the jail inmates”), C-67 (1963) (operation of a profit-making
commissary is not authorized, but the sheriff may make necessary supplies available at cost to the
inmates).

         Attorney General Opinion DM- 19 (199 1) concluded that the commissary fund and inmate
telephone contract revenues are distinct, and that telephone contract revenues must be deposited in
the county treasury. Since the issuance of DM-19 in 1991, the legislature has not spoken to the
matter. As a result, proceeds generated from the inmate telephone contract in Denton County are
county funds; they must be paid into the county treasury; and they may be used for any legitimate
county purpose. Attorney General Letter Opinion 97-030 is modified to the extent it conflicts with
this opinion.
The Honorable Bruce Isaacks - Page 4             (GA-0059)




                                      SUMMARY

                         Revenues generated by the inmate telephone contract in
                 Denton County constitute county funds. Such funds are to be
                 paid into the county treasury and may be used for any legitimate
                 county purpose.     Attorney General Letter Opinion 97-030 is
                 modified to the extent it conflicts with this opinion.

                                             Very truly yours,




                                             AttowGeneral        of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
