.THEATTORNEYGENERAL 

OF %-ICXAS 

The Honorable Chet Brooks, Chairman Opinion No. H-610 

Joint Committee on Priaon Reform 

Senate Chamber Re: Purposes for which the 

Auetin, Texas 78711 Department of Corrections 

may expend moneys from the 

Educational 61 Recreational 

Fund. 

Dear Senator Brooks: 

You have requested our opinion regarding the purposes for which 

the Department of Corrections may expend moneys from the “Educational 

and Recreational Fund. ” 

The Educational and Recreational Fund has been recognized in 

every eneral appropriations act since 1957. Acts, 55th Leg., R. S. , 

1957. e h. 385. at 1049. The Department of Corrections appropriation 

for the current biennium contains the following provision: 

All receipts from the operation of the 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 of the 

biennium beginning September 1, 1973, and 

deposited in the local Educational and Recreational 

Fund, are hereby appropriated to the Department of 

Corrections subject to the following provisions: 

A. Salaries of personnel employed out of 

the Educational and Recreational Fund need 

not conform with the provisions of the 

Classification Plan. 

b. ?sudn tunh s’tifl’be expenheh o&y tiiLn 

the advance, written approval of the Board 

of Corrections. 

Acts. 63rd Leg., R. S., 1973, Ch. 659, at 1947-48. The precise 

language of this rider has appeared in every general appropriations act 

since 1965. See -, Acts 5.9th Leg., R.S., 1965, ch. 720 at 1767-68. 

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The Honorable Chet Brooks - Page 2 (H-610) 

In 1938, the Attorney General was asked if money collected in the 

Educational and Recreational Fund could be spent to acquire land near the 

penitentiary in Huntsville 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 to the 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 in any manner 

through appropriations, is administered for the benefit of the inmates. . . 

and is under the control of the Prison Board. ” In an Opinion dated March 15, 

1938 and found in Book 380 at page 887 of the Attorney General’s Letter 

Opinion Collection, H. L. Williford, Assistant Attorney General, advised 

then Chairman of the Prison Board Joseph Wearden: 

If the terms, conditions, and requirements of 

your duties and powers with respect to the 

management of such fund are discretionary, and 

I think they are, you probably have power to use 

such fund for the benefit of the convicts, and your 

discretion as trustees is the only limitation placed 

upon your power to manage such fund. I see 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 of the convicts in the manner above 

stated in the absence of any express statutory prohibition, if same is consistent with the proper management 

of the State Prison System. 

In 1963, Dr. George Beto, then Director of the Texas Department of 

Corrections made a request which resulted in Attorney General Opinion 

C-133 (1963) about the propriety of accepting certain advertising for the 

Annual Prison Rodeo souvenir program. In making 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. 

p. 2702 
The Honorahle Chet Brooks - Page 3 (H-610) 

In connection with your request, we have been advised by the 

present Director of the Department of Corrections, W. J. Estelle, Jr., 

that the Texas Board of Corrections, acting as a Board of Trustees, is 

responsible for the control and supervision of the Educational and Recreational Fund, that the fund was created to receive the proceeds from the 

operation of the commissaries, the Prison Rodeo, and minor incomeproducing activities, and that all income of the 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 of Corrections, the 

long-established and consistent characterization of the fund as a trust 

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, 146 S. W. 2d 206 (Tex. Civ. App. -- Austin 1940, writ dism., 

judg.corr. ); Turle y v. Tobin, 7 S. W. 2d 949 (Tex. Civ. App. -- 

Austin 1928, writ refused); Gmohundro v. Matthews, 341 S. 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 of labor 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 to be inconsistent with the 

purposes of the 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 of the prisoners in any manner consistent with the purposes 

of the trust, the proper management of the prison system, and the 

statutes of this state. 11 Tex. Jur. 2d, Charities $11, et seq.; see 

V. T.C.S. art. 6166a, et seq. You have asked whether certain specific 

uses of the 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 of the prisoners. may be 

invested or spent for the prisoners’ benefit in any manner 

consistent with the purposes of the trust, the proper 

management of the prison system, and the statutes of 

this state. 

Attorney General of Texas 

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The HonorablC Chet Brooks - Page 3 (~-610) 

Opinion Committee 

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