# .THEATTORNEYGENERAL OF %-ICXAS

TheHonorable Chet 

### Brooks, Chairman Opinion No. H-610 

### JointCommittee onPriaon Reform Senate Chamber Re: Purposes for which the 

### Auetin, Texas 78711 Department ofCorrections may expend moneys from the Educational 61Recreational Fund. Dear 

### Senator Brooks:

You have requested our opinion regarding the purposes for which the Department of Corrections may expend moneys from the “Educational 

### andRecreational Fund. ”

The Educational and Recreational Fund has been recognized in every eneral appropriations act since 1957. Acts, 55th Leg., R.S., 

### 1957.eh. 385. 

### at 1049. The Department of Corrections appropriation for the current biennium contains the following provision:

All receipts from the operation ofthe prison unit commissaries, prison-sponsored recreational shows and entertainment, all gifts and other income for inmate welfare accruing together with balances at the beginning of each year ofthe biennium beginning September 1, 1973, and deposited inthe local Educational and Recreational Fund, are hereby appropriated to the Department of Corrections subject to the following provisions: A. Salaries ofpersonnel employed out of the Educational and Recreational Fund need not conform with the provisions ofthe Classification Plan. 

### b. ?sudntunhs’tifl’be expenheho&y tiiLn the advance, written approval ofthe Board of Corrections. Acts. 63rd Leg., R.S., 1973, Ch. 659, at 1947-48. The precise language ofthis rider has appeared in every general appropriations act since 1965. See -, Acts 5.9thLeg., R.S., 1965, ch. 720 at 1767-68.

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The Honorable Chet Brooks - Page 2 

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In 1938, the Attorney General was asked ifmoney collected inthe Educational and Recreational Fund could be spent to acquire land near the penitentiary inHuntsville to be used as an athletic field and “deeded to the Prison Board as trustees for the Fund”

. The fund was described as “a local fund

. . . raised through receipts from admissions tothe various entertainments staged by the prisoners, and

. . . to the Walls at Huntsville, and through the profits derived from the operation of commissaries.
. . from which prisoners can make purchases.

. . .[It is] not derived inany manner through appropriations, is administered for the benefit ofthe inmates.
. . and is under the control ofthe Prison Board. ” Inan Opinion dated March 15, 1938 and found inBook 380 at page 887 ofthe Attorney General’s Letter Opinion Collection, H. L. Williford, Assistant Attorney General, advised then Chairman ofthe Prison Board Joseph Wearden: Ifthe terms, conditions, and requirements of your duties and powers with respect to the management of such fund are discretionary, and Ithink they are, you probably have power to use such fund for the benefit ofthe convicts, andyour discretion as trustees is the only limitation placed upon your power to manage such fund. Isee no reason why you could not purchase the land for the benefit of the prisoners.

. . *

.

. . .the trustees of such fund can probably invest the same for the benefit ofthe convicts inthe manner above stated inthe absence ofany express statutory prohibition, if same is consistent with the proper management ofthe State Prison System. In 1963, Dr. George Beto, then Director ofthe Texas Department of Corrections made a request which resulted inAttorney General Opinion C-133 (1963) about the propriety ofaccepting certain advertising for the Annual Prison Rodeo souvenir program. Inmaking the request, Dr. Beto explained that the net receipts from the rodeo were used for various rehabilitative services such as education, vocational education, religion, recreation, welfare, etc.

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Inconnection with your request, we have been advised by the present Director ofthe Department of Corrections, W. J. Estelle, Jr., that the Texas Board of Corrections, acting as aBoard of Trustees, is responsible for the control and supervision ofthe Educational and Recreational Fund, that the fundwas created to receive the proceeds from the operation ofthe commissaries, the Prison Rodeo, and minor incomeproducing activities, and that all income ofthe fund is dedicated to the general health, educational and recreational welfare of inmates. Although we have been furnished no trust indenture and have not found any general statutory authority (but see,, Education Code $2.9.03) for the establishment or collection of fund by the Texas Board ofCorrections, the long-established and consistent characterization ofthe fund as atrust fund and its tacit recognition as such by the Legislature since at least 1957, convinces us that it should be treated as such. Daniel v. Richcreek, 146S.W. 2d 206 (Tex. Civ. App. -- Austin 1940, writ dism., judg.corr. ); Turleyv. Tobin, 7S.W. 2d 949 (Tex. Civ. App. -- Austin 1928, writ refused); Gmohundro v. Matthews, 341S.W. 2d 401 (Tex. Sup. 1960). We think a confidential, fiduciary relationship exists between the Board of Corrections and the prisoners committed to its care with respect to the disposition oflabor and property (and the fruits thereof) donated to the fund. See V. T. C.S. art. 6166~. See Attorney General Opinion H-543:(197r The quoted provisions ofhe General Appropriations Act do not appear tobe inconsistent with the purposes ofthe trust.

You are therefore advised that, insofar as we can ascertain, the Texas Board of Corrections, can invest the fund, or spend it, for the benefit ofthe prisoners inany manner consistent with the purposes ofthe trust, the proper management ofthe prison system, and the statutes ofthis state. 11Tex. Jur. 2d, Charities $11, et seq.; see V. T.C.S. art. 6166a, et seq. You have asked whether certain specific uses ofthe funds are permissible, but the proper determination of such matters involves fact questions which we cannot resolve. SUMMARY The Educational and Recreational Fund, which is administered for the benefit ofthe prisoners. may be invested or spent for the prisoners’ benefit inany manner consistent with the purposes ofthe trust, the proper management ofthe prison system, and the statutes of this state.

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