Do inmate phone commission funds belong to the Virginia sheriff's office or to the locality's general fund?

Plain-English summary

The Sheriff of Petersburg asked three questions about inmate phone commission funds: do they have to be redirected back to the sheriff's office, can the sheriff maintain a separate account for them, and does it matter where the city treasurer initially deposits them?

The AG answered no, no, and no. Inmate phone commissions belong to the locality unless the sheriff and the locality agree otherwise.

The key statute was § 53.1-127.1. That section authorizes sheriffs to operate jail commissaries and tells what to do with the proceeds. It says commissary "net profits" go to inmate benefit programs (education, recreation, or other). Then it adds, in a separate sentence, that funds "from such operation of a store or commissary and from the inmate telephone services account shall be considered public funds." The AG parsed those two sentences carefully. The first sentence directs commissary profits to inmate use. The second sentence merely classifies both commissary funds and phone-service funds as "public funds." Only the commissary side gets the inmate-benefit earmark. Phone commissions are public funds, but no statute redirects them back to the sheriff for inmate use.

Because the General Assembly named the commissary and the telephone services account separately and directed only commissary net profits to inmate benefit, the omission of phone commissions from that earmark was deliberate. So absent an agreement between the sheriff's office and the locality, phone commissions remain the locality's to appropriate as it sees fit.

On the separate-account question, § 15.2-1615(A) requires sheriffs to deposit all money received "intact and promptly with the county or city treasurer." The only exceptions are funds collected for the Commonwealth or a locality pursuant to a court order, statutory fees, and prisoner trust funds under Board of Corrections procedures (§ 53.1-68). Phone commissions don't fit either exception, so the sheriff cannot keep them in a separate account. They must be deposited with the treasurer.

On the third question (whether the treasurer can put the funds initially into an investment account rather than the city's general fund), § 58.1-3127(A) directs the treasurer to collect amounts payable to the locality and to account for and pay over the revenue as the law provides. Provided public funds are properly accounted for and distributed, the manner of initial deposit doesn't change ownership. The funds are the city's regardless of which account they hit first.

Currency note

This opinion was issued in 2012. 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.

Common questions

Could a city voluntarily give phone commission revenue to the sheriff?
Yes, by agreement. The AG explicitly noted that the locality is free to appropriate phone commission funds as it sees fit, which includes appropriating them back to the sheriff for inmate programs if it wants. The statutory baseline is just that the locality decides.

Why does the commissary statute treat phone funds differently?
The opinion didn't speculate about legislative intent. The General Assembly chose to direct commissary net profits to inmate benefit and named the telephone services account separately without doing the same. That's the statute as written.

Are inmate trust funds different from commission funds?
Yes, very different. Inmate trust funds are individual prisoners' personal money, held under Board of Corrections procedures (§ 53.1-68). Those are not commission revenue and they don't go into the locality's coffers.

Could the sheriff lobby the city council for inmate-program funding?
Yes. The opinion was about who gets the funds initially, not about whether the locality can later appropriate them for sheriff-led inmate programs. The locality has full discretion to allocate.

Background and statutory framework

Sheriffs and treasurers are constitutional officers whose authority and duties are prescribed by general law or special act. The Dillon Rule of strict construction applies to them, limiting their powers and responsibilities to those conferred by statute.

Section 53.1-127.1 authorizes a sheriff to establish a commissary in a correctional facility and directs commissary net profits to inmate benefit. It also designates both commissary funds and "the inmate telephone services account" as "public funds," but does not extend the inmate-benefit direction to the phone fund.

Section 15.2-1615(A) requires sheriffs to deposit all money received intact and promptly with the city or county treasurer or director of finance. The exceptions are funds collected on behalf of the Commonwealth or a locality pursuant to court order or statutory fees, and funds held in trust for prisoners under § 53.1-68.

Section 58.1-3127(A) directs the treasurer to collect amounts payable into the treasury and to account for and pay over the revenue as the law provides. Provided public funds are properly accounted for and distributed, the manner of initial deposit does not change ownership.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 15.2-1615 (sheriff deposit duties; exceptions)
• Va. Code § 53.1-68 (Board of Corrections prisoner trust procedures)
• Va. Code § 53.1-127.1 (commissary and inmate phone services accounts)
• Va. Code § 58.1-3127 (treasurer's collection and disbursement duties)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-068_Crawford.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

October 5, 2012

The Honorable Vanessa R. Crawford
Sheriff, City of Petersburg
8 Courthouse Avenue
Post Office Box 2209
Petersburg, Virginia 23803

Dear Sheriff Crawford:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented
You present several questions regarding funds generated from inmate telephone accounts in local correctional institutions. You first inquire whether such funds may be considered property of the sheriff's office and therefore must be reallocated back into the sheriff's office budget when those monies are received by the city treasurer and then deposited into the city's general fund. You also ask whether these funds may be maintained by the sheriff's office in a separate fund that is not processed through the treasurer's office. Finally, you ask whether the funds are still considered part of the city's general fund if they are electronically deposited into an investment account at the treasurer's office without first being deposited into the city's general fund.

Response
It is my opinion that Virginia law does not require the funds generated from inmate telephone commissions that are received by the treasurer and deposited into the city's funds to be reallocated back to the sheriff's office to be used within the facility for the benefit of the inmates. Further, it is my opinion that the sheriff's office may not establish and maintain a separate fund for such commissions. Finally, it is my opinion that the account into which the treasurer initially deposits the funds is irrelevant; they remain allocable to city.

Applicable Law and Discussion
Sheriffs and treasurers are constitutional officers whose authority and duties "shall be prescribed by general law or special act." Virginia follows the Dillon rule of strict construction, which dictates that local governing bodies have only those powers that are expressly granted, those that are necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable. The Dillon rule applies to constitutional officers, so that their power and responsibilities also are limited by statute.

With respect to your first question, § 53.1-127.1 authorizes the establishment of stores or commissaries in local correctional facilities. This statute also delineates the manner in which the proceeds from the operation of such stores are to be used. It additionally classifies both these monies and those generated from inmate telephone services as "public funds." Specifically, § 53.1-127.1 expressly provides:

Each sheriff who operates a correctional facility is authorized to provide for the establishment and operation of a store or commissary to deal in such articles as he deems proper. The net profits from the operation of such store shall be used within the facility for educational, recreational or other purposes for the benefit of the inmates as may be prescribed by the sheriff. The sheriff shall be the purchasing agent in all matters involving the commissary and nonappropriated funds received from inmates. The funds from such operation of a store or commissary and from the inmate telephone services account shall be considered public funds.

In construing a statute, we must "ascertain and give effect to the intention of the legislature [and] that intention must be gathered from the words used." Although § 53.1-127.1 refers to telephone service accounts, the sentence that references such accounts concerns only their treatment as public funds. This language does not expressly allocate the funds for correctional facility use. Rather, the portion of the statute dedicating any monies to such use references only "the net profits from the operation of such store[,]" with "such store" referring back to the store or commissary a sheriff may choose to operate. That the store or commissary authorized by § 53.1-127.1 is distinct from telephone services is clear from the General Assembly's decision to name them separately in the final sentence. I therefore conclude that, because the operable language does not include inmate telephone services accounts, funds derived from such accounts are not imputable to the sheriff. Thus, absent an agreement between the sheriff's office and the locality, such monies remain within the purview of the locality, to be appropriated as the locality deems appropriate.

Turning to your second question, § 15.2-1615(A) expressly provides that "[a]ll money received by the sheriff shall be deposited intact and promptly with the county or city treasurer or Director of Finance[.]" This section authorizes a separate account maintained by the sheriff only for

(i) funds collected for or on account of the Commonwealth or any locality or person pursuant to an order of the court and fees as provided by law and (ii) funds held in trust for prisoners held in local correctional facilities, in accordance with procedures established by the Board of Corrections pursuant to § 53.1-68.

As discussed above, funds generated from the inmate telephone commissions are not reserved for use by the sheriff to benefit inmates. Moreover, the funds otherwise do not fall within these exceptions. Thus, the sheriff may not establish or maintain a separate account for the funds generated from the inmate telephone commissions; rather, pursuant to § 15.2-1615(A), the sheriff must promptly deposit the funds with the city treasurer.

Moreover, and in response to your third question, § 58.1-3127(A) directs the treasurer to collect the "amounts payable into the treasury of the political subdivision of the Commonwealth served by the treasurer." Upon receipt, the "treasurer shall account for and pay over the revenue received in the manner provided by law." In general, provided public funds are properly accounted for and distributed, the manner in which they are deposited is irrelevant. Thus, funds properly attributed to the sheriff's office, regardless of whether they are initially deposited in the city's general fund account or a separate investment account, electronically or otherwise, remain within the purview of the sheriff's office. Nonetheless, as discussed above, the inmate telephone commissions are monies appropriately payable to the locality, not the sheriff's office. I therefore conclude that such funds must be submitted to the treasurer for depositing.

Conclusion
Accordingly, it is my opinion that Virginia law does not require the funds generated from inmate telephone commissions that are received by the treasurer and deposited into the city's funds to be reallocated back to the sheriff's office to be used within the facility for the benefit of the inmates. Further, it is my opinion that the sheriff's office may not establish and maintain a separate fund for such commissions. Finally, it is my opinion that the account into which the treasurer initially deposits the funds is irrelevant; they remain allocable to city.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General