Can a Texas sheriff give away or sell old jail commissary equipment, and where does the sale money go?

Plain-English summary

Lori Kaspar, the Hood County Attorney, asked the Attorney General what a sheriff may do with old county jail commissary equipment. A county jail commissary is the store where inmates buy hygiene items and sundries, and the law lets the sheriff (or a designee) run it. The Hood County sheriff had replaced some commissary office equipment that had been bought with commissary proceeds. The old equipment still worked but the commissary staff no longer needed it. Kaspar asked two things: could the sheriff move the old equipment to another office in the department, and if not, did it have to be auctioned, with the money going into either the commissary account or the county's general fund?

On the first question, the AG concluded the sheriff cannot just hand the equipment to an office that would not use it for inmates. Under section 351.0415 of the Local Government Code, the sheriff has exclusive control of commissary funds, but those funds may be spent only on the narrow list of inmate-related purposes the statute sets out, and they cannot be used to cover the jail's regular operating budget. The AG explained that equipment bought with commissary money keeps the character of those funds even after it is no longer needed, so it still has to be used to benefit county jail inmates. Transferring it to an office, department, or entity that would not use it for inmate benefit would push the money past what the statute allows.

On the second question, the AG concluded the equipment can be sold, but the money stays with the commissary. Section 351.0415 does not spell out how to dispose of commissary-bought equipment, and the AG found no authority letting a sheriff sell it directly. Instead, if the sheriff decides the equipment no longer benefits inmates, he can ask the commissioners court to dispose of it as county surplus property under section 263.152, which allows competitive bid or auction. Although the general surplus-property rule says sale proceeds go to the general fund "or the fund from which the property was purchased," the AG concluded that proceeds from selling commissary-bought equipment keep their commissary character and should be deposited back into the commissary account the equipment came from.

The AG added a limit: whether any specific transfer of commissary property complies with section 351.0415 is a question of fact, and the opinion process cannot resolve those.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

County sheriffs (as the opinion described it): The opinion described the sheriff as having exclusive control of commissary funds and discretion over how commissary-bought equipment is used, but bound to keep using that equipment for the benefit of county jail inmates. It described a transfer to a non-inmate use as going beyond the permitted use of commissary funds, and described the proper path for unneeded equipment as asking the commissioners court to dispose of it as surplus.

Commissioners courts (as the opinion described it): The opinion described the commissioners court as the body that disposes of county surplus property under section 263.152, including by competitive bid or auction, and as required to deposit sale proceeds in the county treasury to the credit of the general fund or the fund from which the property was purchased. For commissary-bought equipment, the opinion described the destination as the commissary account.

County auditors (as the opinion described it): The opinion described the commissary accounts as subject to the commissioners court's oversight through the county auditor's annual examination under section 351.0415(d).

County Attorney Kaspar and Hood County (as the opinion described it): The opinion answered the two legal questions but treated whether the specific proposed transfer complied with section 351.0415 as a fact question outside the opinion process.

Common questions

Can a Texas sheriff move old commissary equipment to another part of the department?
Only if that office uses it for the benefit of county jail inmates. The AG concluded that equipment bought with commissary funds keeps the character of those funds, so transferring it to an office or department that would not use it for inmates would exceed the permitted uses of commissary money under section 351.0415.

What can commissary funds be spent on?
The AG explained that section 351.0415 limits commissary proceeds to inmate-related purposes, such as staffing and equipping the commissary, supplying inmates with clothing, writing materials, and hygiene supplies, and providing for the well-being, health, safety, and security of inmates. They cannot be used to fund the jail's budgetary operating expenses.

Can the sheriff sell the surplus equipment?
Not directly. The AG found no authority for a sheriff to sell commissary equipment on his own, but said the sheriff may ask the commissioners court to dispose of it as county surplus property under section 263.152, which allows competitive bid or auction.

Where does the auction money go, the commissary account or the general fund?
The AG concluded it goes back into the commissary account. Even though the general surplus-property statute lets proceeds go to the general fund or the fund the property came from, the proceeds of selling commissary-bought equipment keep their commissary character and may be used only as section 351.0415 allows.

Did the AG decide whether this exact transfer was legal?
No. The AG said whether a specific transfer complies with section 351.0415 is a question of fact, which the opinion process cannot resolve.

Background and statutory framework

Section 351.0415 of the Local Government Code authorizes a county sheriff or the sheriff's designee to operate a county jail commissary where inmates buy hygiene items and sundries (Tex. Loc. Gov't Code Ann. § 351.0415(a) (West 2005); see 37 Tex. Admin. Code § 291.3 (2014)). The sheriff or designee has "exclusive control of the commissary funds" and must keep accounts of the proceeds and disbursements (id. § 351.0415(b)(1)-(2)), which the commissioners court reviews through the county auditor's annual examination (id. § 351.0415(d)). Commissary proceeds may be used only for the inmate-related purposes the statute lists, including the well-being, health, safety, and security of the inmates, and may not be used to fund the jail's budgetary operating expenses (id. § 351.0415(c), (g)).

The AG reasoned that because the sheriff has exclusive control of commissary funds, he has discretion over how commissary-bought equipment is used, but that the equipment "retains the character of those funds" even when no longer needed, so it must keep benefiting county jail inmates (citing Tex. Att'y Gen. Op. Nos. GA-0901 (2011) and GA-0791 (2010)). A transfer to a use that does not benefit inmates would therefore exceed the statute, while whether a particular transfer complies is a fact question outside the opinion process (Tex. Att'y Gen. Op. No. GA-0446 (2006)).

On disposition, section 351.0415 is silent, so the AG turned to the general county surplus-property statute. Section 263.152 lets a commissioners court dispose of surplus property by competitive bid or auction (Tex. Loc. Gov't Code Ann. § 263.152 (West Supp. 2014)), and section 263.156(1) directs that sale proceeds be deposited "in the county treasury to the credit of the general fund or the fund from which the property was purchased" (id. § 263.156(1)). Reading those provisions together with section 351.0415, the AG concluded that proceeds from selling commissary-bought equipment keep their commissary character and should go into the commissary account. The statute defines "surplus property" as personal property that is not salvage or routine waste, is not currently needed or required for foreseeable needs, and still has some usefulness (id. § 263.151(2)(A)-(D)).

Citations

Statutory and rule provisions:

• Tex. Loc. Gov't Code Ann. § 351.0415(a) (West 2005) (sheriff may operate jail commissary)
• Tex. Loc. Gov't Code Ann. § 351.0415(b)(1)-(2) (West 2005) (exclusive control of funds; accounts)
• Tex. Loc. Gov't Code Ann. § 351.0415(c), (g) (West 2005) (permitted uses; no jail operating expenses)
• Tex. Loc. Gov't Code Ann. § 351.0415(d) (county auditor's annual examination)
• Tex. Loc. Gov't Code Ann. § 263.152 (West Supp. 2014) (disposition of county surplus property)
• Tex. Loc. Gov't Code Ann. § 263.156(1) (West 2005) (deposit of sale proceeds)
• Tex. Loc. Gov't Code Ann. § 263.151(2)(A)-(D) (West 2005) (definition of surplus property)
• 37 Tex. Admin. Code § 291.3 (2014) (Inmate Commissary Plan)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. GA-0791 (2010), GA-0901 (2011), GA-0446 (2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1094
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1094.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 15, 2014

The Honorable Lori J. Kaspar Opinion No. GA-1094
Hood County Attorney
1200 West Pearl Street Re: Disposition of surplus property purchased
Granbury, Texas 76048 with proceeds of the sheriff's commissary
account (RQ-1207-GA)

Dear Ms. Kaspar:

You ask about the disposition of certain property belonging to a county jail commissary.[1] Local Government Code section 351.0415 authorizes a county sheriff or the sheriff's designee to operate a county jail commissary, through which inmates can purchase hygiene items and sundries. TEX. LOC. GOV'T CODE ANN. § 351.0415(a) (West 2005); see 37 TEX. ADMIN. CODE § 291.3 (2014) (Tex. Comm'n on Jail Standards, Inmate Commissary Plan). You state that the sheriff of Hood County recently replaced certain commissary office equipment that had been purchased with commissary proceeds.[2] Brief at 1. You explain that the old equipment is still functional but is no longer needed by the commissary staff. Id. You first ask whether the sheriff can transfer[3] the old equipment to another office within the sheriff's department without violating section 351.0415. Id.

Under section 351.0415, the sheriff or the designee "has exclusive control of the commissary funds" and must maintain "accounts showing the amount of proceeds from the commissary operation and the amount and purpose of disbursements made from the proceeds." TEX. LOC. GOV'T CODE ANN. § 351.0415(b)(1)-(2) (West 2005). The commissary accounts are subject to oversight by the county commissioners court through annual examinations of the accounts by the county auditor. See id. § 351.0415(d). The commissary proceeds themselves "may be used only for the purposes described in Subsection (c)," which purposes include staffing and equipping the commissary for the social and educational needs of the inmates, supplying the inmates with clothing, writing materials, and hygiene supplies, and generally providing for "the well-being, health, safety, and security of the inmates." Id. § 351.0415(c)(1)-(5), (g). Commissary funds may not, however, be used "to fund the budgetary operating expenses of a county jail." Id. § 351.0415(g).

As the officer with exclusive control of commissary funds, the sheriff has discretion to determine how equipment purchased with those funds is used. Cf. Tex. Att'y Gen. Op. No. GA-0901 (2011) at 3 (concluding that the sheriff is authorized to initially determine which commissary programs fall within section 351.0415). Even if no longer needed, equipment purchased with commissary funds nevertheless retains the character of those funds and, consequently, must be used to benefit inmates of the county jail in accordance with section 351.0415. TEX. LOC. GOV'T CODE ANN. § 351.0415(c), (g) (West 2005); see also Tex. Att'y Gen. Op. No. GA-0791 (2010) at 2 ("[T]he commissary fund must be used to benefit inmates of the county jail."). Thus, transferring commissary equipment that was purchased with commissary funds to an office, department, or entity that does not use the equipment for the benefit of county jail inmates would go beyond the permitted use of commissary funds established by section 351.0415.[4]

Assuming the sheriff cannot transfer equipment purchased with commissary funds to another office or department, you next ask whether "the surplus office equipment [must] be sold at auction and if so, [whether] the proceeds [must] be deposited back into the commissary account or into the general account of the county." Brief at 1-2. Section 351.0415 does not provide for the disposition of equipment purchased with commissary funds, and we are not aware of any authority expressly permitting a sheriff to sell such equipment, by auction or otherwise. You suggest that section 263.152 of the Local Government Code, which governs the disposition of county surplus property,[5] may require the equipment to be auctioned. Id. at 4. Section 263.152 provides several methods by which a commissioners court may dispose of surplus property, including by competitive bid or auction. TEX. LOC. GOV'T CODE ANN. § 263.152 (West Supp. 2014). If the sheriff determines that equipment purchased with commissary funds no longer has any use or benefit for county jail inmates, nothing prohibits the sheriff from asking the commissioners court to dispose of the equipment pursuant to section 263.152. Commissioners courts are required to deposit the proceeds from the sale of surplus property "in the county treasury to the credit of the general fund or the fund from which the property was purchased." Id. § 263.156(1) (West 2005) (emphasis added). Proceeds from the sale of equipment purchased with commissary funds retain their character as commissary funds and may only be used in accordance with section 351.0415. Therefore, if equipment purchased with commissary funds is sold at auction under section 263.152, the proceeds of the sale should be deposited into the commissary account from which the equipment was originally purchased.

SUMMARY

Transferring equipment purchased with commissary funds to an office or department within the sheriff's office that does not operate or use the equipment for the benefit of county jail inmates would go beyond the permitted use of commissary funds established by section 351.0415 of the Local Government Code.

Equipment purchased with commissary funds that no longer has any use or benefit for county jail inmates may be sold pursuant to section 263.152 of the Local Government Code. The proceeds from the sale may only be used in accordance with section 351.0415 and should be deposited into the commissary account from which the equipment was originally purchased.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee

[1] Letter and Brief from Honorable Lori J. Kaspar, Hood Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (June 11, 2014), http://www.texasattorneygeneral.gov/opin ("Request Letter" and "Brief").

[2] We understand the commissary proceeds you reference to be the proceeds generated by the operation of the jail commissary, not the inmate's personal funds taken from him or her upon admission, earned while in jail, or received from others and placed in an account for the inmate's use. See Tex. Att'y Gen. Op. No. GA-0791 (2010) at 1, n.1 (differentiating the types of commissary funds).

[3] We understand your use of the word "transfer" in this context to mean to give or donate without return consideration.

[4] Whether a specific transfer of commissary property to another office, department, or entity complies with section 351.0415 is ultimately a question of fact that we cannot answer here. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process.").

[5] "Surplus property" is defined as personal property that "is not salvage property or items routinely discarded as waste; ... is not currently needed by its owner; ... is not required for the owner's foreseeable needs; and ... possesses some usefulness for the purpose for which it was intended." TEX. LOC. GOV'T CODE ANN. § 263.151(2)(A)-(D) (West 2005).