Untitled Texas Attorney General Opinion ( 1991 )

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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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