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DAN MORALES                             April 24, 1991
 ATTORNEY
      GENLRAL

    Honorable D. C. Jim Dozier                   Opinion No.    DM-19
    County Attorney
    Montgomery County Courthouse                 Re: Disposition of proceeds generated
    Conroe, Texas 77301                          by inmates’ use of pay telephones in a
                                                 county jail (RQ-2)

    Dear Mr. Dozier:

             You ask about the proper disposition of proceeds from pay telephones in the
    county jail. As a general rule, county officers are to pay over county money, from
    whatever source derived, to the county treasurer. Local Gov’t Code §S 113.003,
    113.021. Another general rule is that allocation of county funds is within the
    discretion of the commissioners court. Weber v. Civ of Sachse, 591 S.W.2d 563 (Tex.
    Civ. App.--Dallas 1979, no writ);Anderson v. Wood, 152 S.W.2d 1054, 1086 (Tex.
    1941) (holding that article 5116, V.T.C.S., which makes sheriff responsible for
    operation of jail, gives sheriff no authority to contract for county independent of
    commissioners court); see Code Crim. Proc. art. 102.007 (hot check fund expendable
    at discretion of attorney responsible for the fund).

            You bring to our attention, however, a specific statute that governs proceeds
    from a jail commissary. Local Gov’t Code $351.0415. That provision authorizes
    sheriffs in certain counties to operate a jail commissary. If/. subset. (a). The
    commissary must be operated in accordance with rules adopted by the Commission
    on Jail Standards. Id. The sheriff has exclusive control of commissary funds, but
    may expend them only for specified purposes. Id. subsets. (b), (c). You ask whether
    proceeds from pay telephones at the county jail are governed by section 351.0415.
    Such proceeds would be governed by that section only if the legislature intended pay
    telephones to be part of the commissary. To understand what the legislature
    intended to encompass by the use of the term “commissary” in section 351.0415, it is
    helpful to review past attorney general opinions in regard to the authority of a
    sheriff to operate a jail commissary.

            Attorney General Opinion C-67 (1963) considered the legality of the
    operation of a jail commissary. The opinion noted that although there was no
    statutory authority for a jail “commissary,” a sheriffs authority to supply the “wants”
    of inmates authorized him to provide toilet articles and other personal items to




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Honorable    D. C. Jim Dozier - Page 2           (~~-19)




inmates at cost. In Attorney General Opinion MW-143 (1980) this office again
considered whether a county jail could operate a commissary. The opinion pointed
out that in 1975 the legislature had created the Commission on Jail Standards to
establish minimum standards for construction and operation of county jails and for
the care of prisoners, and that the commission had promulgated a rule requiring a
county jail to provide a commissary or to conduct a program allowing inmates to
obtain supplies. Acts 1975, 64th Leg., ch. 480, at 1278. This office held that the
creation of the commission and the commission’s promulgation of a rule regarding
commissaries gave a sheriff authority to operate a commissary. The opinion added
that proceeds from the commissary were to be used for the benefit of the inmates.
A subsequent opinion stated that a sheriff had no independent right to contract for a
jail commissary. Attorney General Opinion MW-439 (1982).

        In enacting section 351.0415 in 1989, the legislature codified and gave detail
to the conclusion in Attorney General Opinion MW-143 that proceeds from a jail
commissary were to be devoted to the benefit of jail inmates. Acts 1989, 71st Leg.,
ch. 980, at 4056. It also changed the result of Attorney General Opinion MW-439
by authorizing a sheriff to contract for the jail commissary. See generally Attorney
General Opinion JM-1121 (1989) (sheriff may make purchases for jail commissary
without consulting county purchasing agent). Of most significance to your question
is the fact that section 351.0415 specified that a jail commissary is to be operated in
accordance with rules adopted by the Commission on Jail Standards. Local Gov’t
Code 5 351&15(a).       Because the term “commissary” initially appeared in the rules
of the Commission on Jail Standards and because section 351.0415 was apparently
enacted to clarify the application of those rules, the rules of the commission are an
appropriate source to rely on in determining the scope of the term “commissary” in
section 351.0415.

        The rules of the commission do not contain a definition of “commissary.” See
37 T.A.C. § 253.1 (definitions). The commission’s rules regarding inmate privileges
in county jails, however, clarify the commission’s use of the term. 37 T.A.C. ch. 291.
A jail’s written plan for inmate privileges is to cover inmate privileges in a number
of different areas. Id. Telephone privileges and commissary privileges are treated
as separate categories. 37 T.A.C. 8 291.1(l), (3).1 That categorization indicates


         *Telephone privileges and commissary privileges have been listed as separrtte categories since
a rule regarding inmate privileges was first adopted in 1.976. 1 Tex. Reg. 3599 (1976).




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Honorable    D. C. Jim Dozier - Page 3   t DM-19 1




that the commission did not understand the term “commissary” to include pay
telephones.     Therefore, proceeds froni pay telephones in county jails are not
governed by section 351.0415 of the Local Government Code. Any proceeds the
sheriff receives should be paid to the county treasurer.

                                   SUMMARY

                Proceeds from pay telephones in county jails are not
            governed by section 351.0415 of the Local Government Code
            and should be paid to the county treasurer.




                                                     DAN      MORALES
                                                     Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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