Does a Texas county's inmate phone commission go to the sheriff's commissary or the county general fund?

Plain-English summary

County jails make money on inmate phone calls. A phone service provider runs the system and pays the county a commission. The question in this opinion was where that commission goes: into the jail commissary fund, which the sheriff controls and can spend on inmate benefits, or into the county's general fund in the county treasury. Washington County's situation had changed. It used to sell prepaid phone cards to inmates through the commissary, and kept that money as commissary funds. Under a new arrangement, the provider created a PIN debit account for each inmate, and an inmate would move money out of his personal inmate trust account straight into that phone account to buy call time. The county attorney asked the AG which pot the commission belonged in.

The AG walked through the rules. As a default, county officers must deposit money they receive with the county treasurer. There is an exception: Local Government Code section 351.0415 gives the sheriff exclusive control of "commissary funds," which the sheriff can hold outside the treasury and spend only for inmate-benefit purposes set by statute. But telephone privileges are treated separately from commissary privileges, and a line of prior AG opinions had held that money a county gets from an inmate telephone provider is generally county funds for the treasury, not commissary funds. The one wrinkle was a 2010 opinion (GA-0814) that treated revenue from prepaid phone cards as commissary proceeds, because in that setup the sheriff bought the cards and resold them in the commissary like any other commissary item.

The AG found Washington County's new system fell on the treasury side of that line. Under the PIN debit plan, the inmate buys phone time directly from the provider, not from the commissary. Because the money never passes through a commissary purchase, it never becomes "commissary proceeds" or "commissary funds" under section 351.0415, and so it is not subject to the sheriff's exclusive control. The AG concluded the revenue must be credited to the county's general fund.

Currency note

This opinion was issued in 2020. 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

For Washington County and other counties running inmate phone service through a provider's PIN debit system, the opinion's reading turned on how the inmate paid. When the inmate moved trust-account money directly to the phone provider to buy call time, without a commissary purchase in between, the AG treated the resulting commission as county funds bound for the general fund, outside the sheriff's commissary control. The opinion distinguished the older prepaid-phone-card setup, where the sheriff bought and resold cards in the commissary, which had made that revenue commissary proceeds. For sheriffs, county auditors, and county attorneys, the practical marker the AG drew was whether the funds actually flowed through a commissary purchase under section 351.0415; if they did not, the money was the county's general-fund revenue. The opinion also separated the inmate trust account governed by Government Code section 501.014 from the sheriff's commissary account governed by section 351.0415, treating them as distinct.

Common questions

Q: Where does inmate phone commission money go in a Texas county jail?
A: It depends on how the inmate pays. The AG concluded that when an inmate buys phone time directly from the provider through a PIN debit account, the commission is county funds that must be credited to the county general fund, not the sheriff's commissary fund.

Q: Why isn't it commissary money under the sheriff's control?
A: Because the money never passes through a commissary purchase. The AG read section 351.0415 to make funds "commissary proceeds" only when an inmate uses trust funds to buy something from the commissary; buying phone time straight from the provider does not qualify.

Q: Wasn't prepaid phone card revenue treated as commissary funds before?
A: Yes, in a 2010 opinion, because there the sheriff bought the cards and resold them in the commissary like any other commissary item. The AG distinguished that setup from the direct PIN debit purchase.

Q: Is the inmate trust account the same as the commissary account?
A: No. The AG explained that an inmate trust account under Government Code section 501.014 is separate from the sheriff's commissary account under Local Government Code section 351.0415.

Background and statutory framework

County officers must generally deposit funds with the county treasurer for the county depository (Local Government Code sections 113.001, .003, .021). Section 351.0415 is an exception: it gives the sheriff exclusive control of "commissary funds," lets the sheriff operate a jail commissary and hold its proceeds outside the treasury, and limits spending to statutorily designated inmate-benefit purposes. The Commission on Jail Standards adopts the governing rules, including an inmate commissary plan (37 Tex. Admin. Code § 291.3) and a separate inmate telephone plan (37 Tex. Admin. Code § 291.1). Inmate money is held in a trust account under Government Code section 501.014. The AG relied on a line of prior opinions treating telephone revenue as county funds (KP-0079 (2016), GA-1041 (2014), GA-0059 (2003), DM-19 (1991)), distinguished GA-0814 (2010) (prepaid card resale = commissary proceeds), and cited GA-0791 (2010) and GA-0534 (2007) on the sheriff's exclusive control and on distinguishing commissary funds from inmate personal funds. The opinion cited Hatfield v. Scott, 306 F.3d 223 (5th Cir. 2002) and Reed v. State, 269 S.W.3d 619 (Tex. App.-San Antonio 2008, no pet.) on the practice of some facilities labeling an inmate trust account an "inmate commissary account."

Citations and references

Statutory provisions:

• Tex. Loc. Gov't Code § 351.0415; § 113.021
• Tex. Gov't Code § 501.014
• 37 Tex. Admin. Code § 291.1; § 291.3

Cases:

• Hatfield v. Scott, 306 F.3d 223 (5th Cir. 2002)
• Reed v. State, 269 S.W.3d 619 (Tex. App.-San Antonio 2008, no pet.)

Prior AG opinions referenced: KP-0079 (2016); GA-1041 (2014); GA-0814 (2010); GA-0791 (2010); GA-0534 (2007); GA-0059 (2003); DM-19 (1991).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0295
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0295.pdf

Original opinion text

March 16, 2020

The Honorable Renee Ann Mueller
Washington County Attorney
100 East Main Street, Suite 200
Brenham, Texas 77833

Opinion No. KP-0295

Re: Whether revenue generated from inmates' use of a PIN debit system to pay for phone time must be credited to the county jail commissary account or to the county general fund (RQ-0309-KP)

Dear Ms. Mueller:

You ask whether revenue generated from inmates' use of a PIN debit system to pay for phone time must be credited to the county jail commissary account controlled by the sheriff or to the county general fund.[1] You inform us that, to comply with an administrative rule requiring phone service for inmates, the county contracts with a telephone service provider to provide inmates with prepaid and collect phone services. Request Letter at 1; see also 37 TEX. ADMIN. CODE § 291.1(2) (Tex. Comm'n on Jail Standards, Inmate Telephone Plan). Under the contract, the service provider pays the county a commission on calls of all types. Request Letter at 1. You state that previously the jail commissary sold prepaid telephone cards in set amounts to the inmates and retained proceeds from the sale of the cards as commissary funds. Id. at 2. Under the current plan, however, the service provider creates a PIN debit account for each inmate, and the inmate may allocate funds from the inmate's trust account to the PIN debit account in order to obtain phone services. Id.[2] You ask whether the proceeds the county receives from the telephone service provider under the PIN debit plan should be credited to the commissary account or to the general fund of the county. Id.

Generally, county officers must deposit funds they receive from whatever source with the county treasurer for placement in the county depository. TEX. LOC. GOV'T CODE §§ 113.001, .003, .021(a), (b); see generally Tex. Att'y Gen. Op. No. GA-0814 (2010) at 1. As an exception to that general rule, section 351.0415 of the Local Government Code grants the county sheriff or designee exclusive control of "commissary funds." TEX. LOC. GOV'T CODE § 351.0415(b)(1) ("Commissary Operation by Sheriff or Private Vendor"). That statute authorizes the sheriff to operate a jail commissary, maintaining "commissary accounts" and records of proceeds from the commissary operation and disbursements made from the proceeds. Id. § 351.0415(b)(1), (2). The sheriff may expend proceeds from the operation of the commissary only for statutorily designated purposes for the benefit of the inmates. Id. § 351.0415(c), (g). Thus, while the commissary statute does not define its terms, the funds and accounts needed to operate a commissary and the proceeds derived from commissary operations are "commissary funds" under the statute, subject to the sheriff's exclusive control. See id. § 351.0415. As such, commissary funds are not funds "belonging to the county" that the sheriff must deposit with the county treasurer. See Tex. Att'y Gen. Op. No. GA-0791 (2010) at 3 (stating "the sheriff's 'exclusive control' of the commissary fund also means that the sheriff retains custody of the fund instead of having to deposit it with the county treasurer pursuant to section 113.021(a)").[3]

Section 351.0415 further requires the sheriff to operate a jail commissary according to rules adopted by the Commission on Jail Standards ("Commission"). TEX. LOC. GOV'T CODE § 351.0415(a). The Commission's commissary rule requires a facility to implement a written plan "which allows for the purchase of hygiene items and sundries," and requires commissary proceeds to be expended according to the commissary statute. 37 TEX. ADMIN. CODE § 291.3 (Tex. Comm'n on Jail Standards, Inmate Commissary Plan). A different Commission rule requires a facility to provide inmates with local and long-distance telephone access, which can be on a prepaid or collect basis. Id. § 291.1 (Inmate Telephone Plan). Because telephone privileges are separate from commissary privileges, several attorney general opinions conclude that generally the proceeds a county receives from a provider of inmate telephone services are not commissary funds subject to the sheriff's control and therefore must be paid to the county treasurer. See, e.g., Tex. Att'y Gen. Op. Nos. KP-0079 (2016) at 3 (stating that revenue from pay telephones and telephone services are not commissary proceeds and must be held in the county treasury), GA-1041 (2014) at 3 (concluding that any revenue from voice-over-internet services are "county funds"), GA-0059 (2003) at 3 (determining that revenues generated by a contract between an inmate telephone service provider and a county constituted county funds), DM-19 (1991) at 2-3 (concluding that proceeds from pay telephones located in jail are not commissary funds and must be deposited with the treasurer).

However, in Attorney General Opinion GA-0814, this office considered whether proceeds derived from a commissary's sale of prepaid telephone cards to inmates constitute "commissary funds" subject to the sheriff's control. Tex. Att'y Gen. Op. No. GA-0814 (2010) at 1. Noting that the prepaid phone cards were to be purchased by the sheriff for resale to the inmates in the commissary, the opinion reasoned that they would be "indistinguishable from any other item that might be sold in a county jail commissary" and, therefore, revenue derived from selling the cards would constitute commissary proceeds subject to the exclusive control of the sheriff. Id. Reconciling that opinion with other precedent, this office summarized: "Revenue deriving from prepaid phone cards are part of the sheriff's commissary proceeds, which may be held outside the county treasury, whereas revenue from pay telephones and telephone services are not, in which case they are paid to the county treasurer." Tex. Att'y Gen. Op. No. KP-0079 (2016) at 3.

You tell us that the service provider has integrated the PIN debit accounts with an automated "commissary" system, whereby an inmate may choose to allocate funds from the inmate's trust account either to place an order for commissary items or to purchase "debit calling funds" for their PIN debit telephone accounts. Request Letter at 2-3. As you describe the arrangement, the inmate purchases "phone time" directly from the phone service provider, not the jail commissary. Id. Without a purchase from the commissary, the funds used by the inmate to obtain phone service never become "commissary proceeds" or "commissary funds" subject to the sheriff's exclusive control. See TEX. LOC. GOV'T CODE § 351.0415(b)(1). Accordingly, revenue derived from money allocated from an inmate trust fund account to a phone service provider's PIN debit account must be credited to the general fund of the county, not to the commissary funds under the exclusive control of the sheriff.

SUMMARY

Revenue derived from money allocated from an inmate trust fund account to a phone service provider's PIN debit account without passing through a facility's commissary account as described in section 351.0415 of the Local Government Code must be credited to the general fund of the county, not to the commissary funds under the exclusive control of the sheriff.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Renee Ann Mueller, Washington Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Aug. 26, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). An executive summary from the telephone service provider attached to your request defines "PIN" as "'Personal Identification Number or Inmate ID.'" Request Letter, Exhibit B at 7 (on file with the Op. Comm.).

[2] Section 501.014 of the Government Code provides for an inmate trust account to regulate an inmate's possession and use of money while in jail custody. See TEX. GOV'T CODE § 501.014. When an inmate arrives at a facility, the Department of Criminal Justice must take possession of all money on the inmate's person and credit it to an account created for the inmate. See id. § 501.014(a); see also id. § 491.001(a)(3) (definition of "Department"). Any other money the inmate receives during confinement must also be credited to the inmate trust account. Id. § 501.014(a). The Department may expend funds from the inmate trust account as required by law or policy, or otherwise as the inmate directs by written order. Id. When an inmate is discharged or released for various reasons, the Department must provide the inmate with the money held in the inmate's trust account. Id. § 501.015(a)(2).

[3] Some facilities may designate an inmate trust account as an "inmate commissary account," that is, an account made up of inmate trust funds that may be expended for commissary purchases. See Hatfield v. Scott, 306 F.3d 223, 224-25 (5th Cir. 2002); Reed v. State, 269 S.W.3d 619, 621 & n.1 (Tex. App.-San Antonio 2008, no pet.). But an "inmate commissary account" governed by Government Code section 501.014 is not a sheriff's "commissary account" governed by section 351.0415 of the Local Government Code. Compare TEX. GOV'T CODE § 501.014, with TEX. LOC. GOV'T CODE § 351.0415; see also Tex. Att'y Gen. Op. Nos. GA-0791 (2010) at 1 n.1 (distinguishing "commissary funds" from inmate's personal funds); GA-0534 (2007) at 1 (clarifying that an account referred to by the requestor as an "inmate's commissary account" was an account composed of funds taken from an inmate, earned by the inmate, or given by others for the inmate's use). Only when an inmate uses trust funds to make a purchase from the commissary do the funds become commissary proceeds under section 351.0415.