What can a Texas sheriff legally spend jail commissary money on?

Plain-English summary

The Executive Director of the Texas Commission on Jail Standards asked the AG whether particular uses of jail commissary proceeds by a county sheriff violate section 351.0415 of the Local Government Code. The two examples were a sheriff using commissary money to compensate and buy equipment for a deputy who is not assigned to the jail, and a sheriff using commissary money to recruit and pay the salary of a jail employee who is not part of an inmate program. One county had reasoned that the unassigned deputy could be called in during an emergency like a riot to help secure the jail, and some sheriffs were using commissary funds for staff recruitment or training and development.

The AG started by declining the specific question. Whether a particular expenditure from a commissary account is proper is a question of fact, and the AG does not decide fact questions in opinions. Instead, the AG laid out the governing rules. Section 351.0415 lets a sheriff operate a commissary for the use of county jail inmates, under the Commission on Jail Standards rules. It gives the sheriff exclusive control over the commissary funds but limits spending to five categories. The category most relevant here, subsection (c)(5), covers physical plant improvements, technology, equipment, programs, services, and activities that provide for the well-being, health, safety, and security of the inmates and the facility.

The AG stressed that the sheriff's discretion has limits. Commissary funds may not be used to fund the budgetary operating expenses of a county jail, and the money must generally benefit the county jail's inmates. A court of appeals had described the funds as subject to county oversight and spendable only for limited purposes associated with the county jail operation.

Applying those standards in a general way, the AG signaled skepticism without making the call. With few facts about the unassigned deputy's job or the equipment, the AG noted that the deputy's not being assigned to the jail suggests the function may not be associated with the jail operation, and questioned whether the chance of that deputy responding to an inmate riot is too remote to count as an expenditure for the inmates' and facility's well-being, health, safety, and security under (c)(5). On recruitment and training, the AG said more facts were needed, but that spending on general recruitment, training, and development, rather than specifically staffing programs or services for inmate well-being and security, would fall outside (c)(5). The AG left the determination to the sheriff in the first instance, subject to administrative review by the Commission on Jail Standards and judicial review for abuse of discretion.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG 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

The Texas Commission on Jail Standards (as the opinion described it): The opinion told the requesting agency that whether a specific commissary expenditure is proper is a fact question outside the opinion process, while confirming that the Commission has administrative review over a sheriff's commissary spending and that those expenditures must comply with section 351.0415.

County sheriffs (as the opinion described them): The opinion treated the sheriff as holding exclusive control over commissary funds and as the official who determines in the first instance whether an expenditure fits section 351.0415, bounded by the rule that the money cannot fund the jail's budgetary operating expenses and must generally benefit inmates, with the determination subject to judicial review for abuse of discretion.

County commissioners and county budget officials (as the opinion described them): The opinion described commissary proceeds as subject to county oversight and spendable only for limited purposes associated with the county jail operation, separate from the jail's operating budget.

Common questions

Can a sheriff spend jail commissary money on a deputy who isn't assigned to the jail?
The AG did not decide this specific question because it turns on facts. It noted, though, that a deputy not assigned to the jail suggests a function not associated with the jail operation, and questioned whether a remote chance of riot response satisfies subsection 351.0415(c)(5).

Can commissary funds pay for general staff recruitment and training?
The opinion said more facts were needed, but that spending on general recruitment, training, and development, not tied to staffing programs or services for inmate well-being and security, would fall outside subsection 351.0415(c)(5).

What are commissary proceeds allowed to be used for?
The opinion explained that section 351.0415 limits spending to five categories, requires the funds to generally benefit county jail inmates, and bars using them to fund the jail's budgetary operating expenses.

Who decides whether a commissary expenditure is proper?
The opinion said the sheriff decides in the first instance under his or her exclusive control of the funds, subject to administrative review by the Commission on Jail Standards and judicial review for abuse of discretion.

Background and statutory framework

Section 351.0415 authorizes a county sheriff to operate a commissary for the use of inmates committed to the county jail, under the rules of the Commission on Jail Standards (Tex. Loc. Gov't Code § 351.0415(a); 37 Tex. Admin. Code §§ 251.1-301.2). It gives the sheriff exclusive control over the commissary funds but limits spending to five categories (Tex. Loc. Gov't Code § 351.0415(b)(1), (c)(1)-(5)). Subsection (c)(5) covers physical plant improvements, technology, equipment, programs, services, and activities that provide for the well-being, health, safety, and security of the inmates and the facility (Tex. Loc. Gov't Code § 351.0415(c)(5)). The propriety of a particular expenditure is a question of fact not appropriate to the opinion process (Tex. Att'y Gen. Op. Nos. GA-1094 (2014) at 2 n.4, GA-0446 (2006) at 18).

The sheriff's exclusive control authorizes the sheriff to determine whether an expenditure falls within subsection (c) (Tex. Loc. Gov't Code § 351.0415(b)(1); Tex. Att'y Gen. Op. Nos. GA-1094 (2014) at 2, GA-0901 (2011) at 2), but the discretion is bounded. A sheriff may not use commissary funds to fund the budgetary operating expenses of a county jail (Tex. Loc. Gov't Code § 351.0415(g)), and the funds must generally benefit county jail inmates (Tex. Att'y Gen. Op. Nos. GA-0901 (2011) at 2, GA-0791 (2010) at 2). A court of appeals noted that commissary proceeds are subject to county oversight and may be spent only for limited purposes associated with the county jail operation (Mills v. State, 941 S.W.2d 204, 208 (Tex. App.—Corpus Christi 1996, pet. ref'd); see Tex. R. App. P. 56.1(c)).

The sheriff determines the appropriateness of an expenditure in the first instance, subject to judicial review under an abuse of discretion standard and administrative review by the Commission on Jail Standards (Tex. Att'y Gen. Op. Nos. GA-0901 (2011) at 3, JC-0214 (2000) at 6, JM-1199 (1990) at 2-3). If the Commission finds a county jail out of compliance with state law or its rules, it reports the noncompliance to the county commissioners, sheriff, and governor (Tex. Gov't Code § 511.011), and may give the sheriff a reasonable period up to one year to comply (Tex. Gov't Code § 511.012(a)); commissary proceeds must be spent in accordance with section 351.0415 (37 Tex. Admin. Code § 291.3(5)).

Citations

Statutes and rules:

• Tex. Loc. Gov't Code § 351.0415(a), (b)(1), (c)(1)-(5), (c)(5), (g)
• Tex. Gov't Code §§ 511.011, 511.012(a)
• 37 Tex. Admin. Code §§ 251.1-301.2, 291.3(5)
• Tex. R. App. P. 56.1(c)
• Tex. Att'y Gen. Op. Nos. GA-1094 (2014), GA-0446 (2006), GA-0901 (2011), GA-0791 (2010), JC-0214 (2000), JM-1199 (1990)

Cases:

• Mills v. State, 941 S.W.2d 204 (Tex. App.—Corpus Christi 1996, pet. ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0159
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0159.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 8, 2017

Mr. Brandon S. Wood Opinion No. KP-0159
Executive Director
Texas Commission on Jail Standards Re: Whether certain expenditures of
Post Office Box 12985 commissary proceeds violate section
Austin, Texas 78711 351.0415 of the Local Government Code
(RQ-0149-KP)

Dear Mr. Wood:

    You ask whether specific expenditures of commissary proceeds by a county sheriff violate section 351.0415 of the Local Government Code. [1] Specifically, you ask whether a sheriff can use commissary proceeds to provide compensation and "purchase equipment for a deputy not assigned to the jail" or to "recruit and fund the salary of a jail employee not part of an inmate program." Request Letter at 1. The propriety of a particular expenditure from a commissary account is a question of fact that we cannot answer in an attorney general opinion, but we can provide general advice on the sheriff's authority. See Tex. Att'y Gen. Op. Nos. GA-1094 (2014) at 2 n.4, GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process.").

    Section 351.0415 of the Local Government Code authorizes a county sheriff to operate "a commissary for the use of the inmates committed to the county jail." TEX. LOC. GOV'T CODE § 351.0415(a) (requiring also that a commissary be operated under the rules of the Commission on Jail Standards), 37 TEX. ADMIN. CODE §§ 251.1-301.2 (Tex. Commission on Jail Standards, Part 9). Section 351.0415 gives the sheriff exclusive control over the commissary funds but limits the sheriff's authority to spend commissary proceeds to five categories of expenditures. See TEX. LOC. GOV'T CODE § 351.0415(b)(1), (c)(1)-(5). Of those five categories, we understand your primary concern involves the scope of subsection 351.0415(c)(5). See Request Letter at 1-2. Subsection 351.0415(c)(5) authorizes an expenditure of commissary proceeds for "physical plant improvements, technology, equipment, programs, services, and activities that provide for the well-being, health, safety, and security of the inmates and the facility." TEX. LOC. GOV'T CODE § 351.0415(c)(5). You tell us that one county interprets this provision to allow for the compensation and purchase of equipment for a deputy not assigned to the jail. Request Letter at 2. You explain that the "sheriff's reasoning [is] that the deputy could be called upon in an emergency, such as a riot, to assist in securing the jail." Id. You tell us further that some sheriffs use commissary proceeds "for staff recruitment or training development." Id.

    The types of expenditures about which you ask involve equipment and personnel that you suggest may not be directly associated with the jail. See id. at 2. As this office consistently recognizes, the sheriff's "exclusive control of the commissary funds" authorizes the sheriff to determine whether an expenditure falls within subsection 351.0415(c). TEX. LOC. GOV'T CODE § 351.0415(b)(1); see Tex. Att'y Gen. Op. Nos. GA-1094 (2014) at 2, GA-0901 (2011) at 2. The sheriff's discretion, however, is not without limitation. The Legislature expressly provided that a sheriff may not use commissary funds "to fund the budgetary operating expenses of a county jail." TEX. LOC. GOV'T CODE § 351.0415(g). Moreover, the sheriff must generally spend commissary funds to "benefit inmates of the county jail." Tex. Att'y Gen. Op. Nos. GA-0901 (2011) at 2, GA-0791 (2010) at 2. Thus, under subsection 351.0415(c)(5) the sheriff may use the commissary funds for "physical plant improvements, technology, equipment, programs, services, and activities that provide for the well-being, health, safety, and security of the inmates and the facility," provided that the expenditures do not fund the budgetary operating expenses of a county jail, and they generally benefit the inmates of the county jail. TEX. LOC. GOV'T CODE § 351.0415(c)(5). One Texas court of appeals, considering the nature of a sheriff's control over commissary funds, noted the limited nature of section 351.0415: "[C]ommissary proceeds are subject to county oversight and may be spent only for limited purposes associated with the county jail operation." Mills v. State, 941 S.W.2d 204, 208 (Tex. App.—Corpus Christi 1996, pet. ref'd). [2]

    You do not provide many facts with respect to the job functions of the deputy not assigned to the jail or the nature of the equipment purchased for use by that deputy, but the fact that the deputy is not assigned to the jail suggests his or her function may not be associated with the county jail operation within the scope of section 351.0415. Further, we question whether the possibility of the deputy responding to an inmate riot is a circumstance too remote to be reasonably considered an expenditure for a program, service, or activity that "provide[s] for the well-being, health, safety and security of the inmates and the facility" in satisfaction of subsection 351.0415(c)(5). TEX. LOC. GOV'T CODE § 351.0415(c)(5). Likewise, with regard to using commissary proceeds for staff recruitment or training and development, more factual information is needed to reach a conclusion about the propriety of the expenditure. However, spending the funds on general recruitment, training, and development, and not specifically for the staffing of programs or services that provide for the "well-being, health, safety, and security of the inmates and the facility," would fall outside the scope of subsection 351.0415(c)(5). While the sheriff must determine the appropriateness of these expenditures in the first instance, the sheriff's determination is subject to judicial review under an abuse of discretion standard, as well as administrative review by the Commission on Jail Standards. See Tex. Att'y Gen. Op. Nos. GA-0901 (2011) at 3 (recognizing the actions of a sheriff are subject to judicial review under an abuse of discretion standard), JC-0214 (2000) at 6 (same), JM-1199 (1990) at 2-3 (same); see also TEX. GOV'T CODE § 511.011 ("If the commission finds that a county jail does not comply with state law ... or the rules, standards, or procedures of the commission, it shall report the noncompliance to the county commissioners and sheriff of the county responsible for the county jail and shall send a copy ... to the governor."), 511.012(a) (giving sheriff a reasonable period up to one year "to comply with commission rules and procedures and state law"), 37 TEX. ADMIN. CODE § 291.3(5) (requiring that commissary proceeds be spent "in accordance with the Local Government Code § 351.0415").

                                  SUMMARY

                   Local Government Code section 351.0415 limits an
           expenditure of commissary proceeds to items or services that benefit
           inmates. Because of the sheriff's exclusive authority over
           commissary proceeds under section 351.0415, the propriety of an
           expenditure from those funds is a question for the sheriff to
           determine in the first instance subject to administrative review by
           the Commission on Jail Standards or judicial review for abuse of
           discretion.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Brandon S. Wood, Exec. Dir., Tex. Comm'n on Jail Standards, to Honorable Ken Paxton, Tex. Att'y Gen. (Feb. 13, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Upon review of the Mills v. State decision, the Texas Supreme Court determined that the judgment and the legal principles announced in the opinion of the court of appeals were correct. Thus, "[t]he court of appeals' opinion in the case has the same precedential value as an opinion of the Supreme Court." Tex. R. App. P. 56.1(c).