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ATTORNEY GENERAL OF TEXAS GREG ABBOTT

The Honorable Lori J. Kaspar HoodCounty Attorney 1200 West Pearl Street Granbury,**T~xas** 76048

DearMs. Kaspar: December 15, 2014
OpinionNo. GA-1094 Re: Disposition ofsurplus property purchased with proceeds of the sheriffs commissary account (RQ-1207-GA)

You ask aboutthe disposition ofcertainproperty belongingto a countyjail commissary. 1 Local Government Code section 351.0415 authorizes a county sherifforthe sheriffs designee to operate a county jail commissary, through which inmates can purchase hygiene items and sundries. TEX. Loe. Gov'TCODE ANN. § 351.0415(a) (West 2005); 

### see 37 TEX. ADMIN. CODE §291.3 (2014) (Tex. Comm'n on Jail Standards, Inmate Commissary Plan). You state that the sheriff of Hood County recently replaced certain commissary office equipment that had been purchased with commissary proceeds.2 Briefat 1. You explain that the old equipment is still functional but is no longerneeded bythe commissary staff. 

### Id You first askwhetherthe sheriff can transfer3 the old equipment to another office within the sheriffs department without violating section 351.0415. 

### Id. Under section 351.0415, the sheriff or the designee "has exclusive control of the commissary funds" and must maintain "accounts showing the amount of proceeds from the commissary operation and the amount and purpose ofdisbursements made from the proceeds." TEX. Loe. Gov'TCODE ANN. § 351.0415(b)(l}--(2) (West 2005). The commissary accounts are subject to oversight by the county commissioners court through annual examinations of the

1Letter and Brieffrom Honorable Lori J. Kaspar, Hood Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at I (June 11, 2014), http://www.texasattomeygeneral.gov/opin("RequestLetter" and "Brief').
2 We understand the commissary proceeds you reference to be the proceeds generated by the operation of thejail commissary, notthe inmate's personal funds taken from him orher upon admission, earned while injail, or received from others andplacedinan account for the inmate'suse. See Tex. Att'yGen. Op. No. GA-0791 (2010) at 1, n.l (differentiatingthe types ofcommissary funds).
3We understand your use ofthe word "transfer" in this context to mean to give or donate without return consideration.The Honorable Lori J. Kaspar

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accounts by the county auditor. See id. § 351.0415(d). The commissary proceeds themselves "maybe used only for the purposes described in Subsection ( c)," whichpurposes include staffing and equipping the commissary for the social and educational needs ofthe inmates, supplying the inmates with clothing, writing materials, and hygiene supplies, and generally providing for "the well-being, health, safety, and security of the inmates." 

### Id. § 35l.0415(c)(l)-(5), (g). Commissary funds may not, however, be used "to fund the budgetary operating expenses ofa countyjail." 

### Id. § 351.0415(g). As the officer with exclusive control ofcommissary funds, the sheriffhas discretion to determine how equipment purchased with those funds is used. CfTex. Att'y Gen. Op. No. GA0901 (2011) at 3 (concluding that the sheriff is authorized to initially determine which commissary programs fall within section 351.0415). Even if no longer needed, equipment purchased with commissary funds nevertheless retains the character of those funds and, consequently, must be used to benefit inmates of the county jail in accordance with section 351.0415. TEX. Loe. Gov'T CODE ANN. § 351.0415(c), (g) (West 2005); see also Tex. Att'y Gen. Op. No. GA-0791 (2010) at 2 ("[T]he commissary fund mustbe used to benefit inmates of the county jail."). Thus, transferring commissary equipment that was purchased with commissary funds to an office, department, or entity that does not use the equipment for the benefit of county jail inmates would go beyond the permitted use of commissary funds establishedby section 351.0415.4 Assuming the sheriff cannot transfer equipment purchased with commissary funds to another office or department, you next ask whether "the surplus office equipment [must] be sold at auction and if so, [whether] the proceeds [must] be deposited back**in~o** the commissary account or into the general account ofthe county." Briefat 1-2. Section 351.0415 does not provide for the disposition of equipment purchased with commissary funds, and we are not aware of any authority expressly permitting a sheriff to sell such equipment, by auction or otherwise. You suggest that section 263.152 ofthe Local Government Code, which governs the disposition ofcounty surplus property,5 may require the equipment to be auctioned
. Id at 4. Section 263.152 provides several methods by which a commissioners court may dispose of surplus property, including by competitive bid or auction. TEX. Loe. Gov'T CODE ANN. § 263.152 (West Supp. 2014). If the sheriff determines that equipment purchased with commissary funds no longer has any use or benefit for countyjail inmates, nothing prohibits the sheriff from asking the commissioners court to dispose ofthe equipment pursuant to section

4Whether a specific transfer ofcommissary property to another office, department, or entity complies with section 351.0415 is ultimately a question offact thatwe cannot answer here. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions offact are not appropriate to the opinionprocess.").
5"Surplus property" is defined as personal property that "is not salvage property or items routinely discarded as waste;
... is not currently needed by its owner; ... is notrequired for the owner's foreseeable needs; and
... possesses some usefulness for the purpose for which it was intended." TEX. Loe. Gov'T CODE ANN
. § 263.151(2)(A)--(D) (West2005).The Honorable Lori J. Kaspar

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263.152. Commissioners courts are required to deposit the proceeds from the sale of surplus property "in the county treasury to the credit ofthe general fund 

### or thefundfrom which the property waspurchased." Id § 263.156(1) (West 2005) (emphasis added). Proceeds from the sale ofequipment purchased with commissary funds retain their character as commissary funds and may only be used in accordance with section 351.0415. Therefore, ifequipment purchased with**commi~sary** funds is sold at auction under section 263.152, the proceeds ofthe sale should be deposited into the commissary account from whichthe equipmentwas originallypurchased.The Honorable Lori J. Kaspar

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SUMMARY Transferring equipment purchased with commissary funds to an office or department within the sheriffs office that does not operate or use the equipment for the benefit ofcountyjail inmates would go beyond the permitted use of commissary funds established by section 351.0415 ofthe Local Government Code. Equipment purchased with commissary funds that no longer has any use orb nefit for countyjail inmates may be sold pw-suant to section 26"".152 ofthe Local Government Code. The proceeds from the sale may only be used in accordance with section 351.0415 and shoul d be deposited into the commissary account from whichthe equipmentwas originallypurchased.

DANIEL T. HODGE FirstAssistantAttorney General JAMES D. BLACKLOCK DeputyAttorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, OpinionCommittee StephenL. Tatum, Jr. Verytruly yours,

Attorney General ofTexas

Assistant Attorney General, Opinion Committee