TIHE A'ITORNEY GENERAL 

OP?%ZXAS 

Auwrr~. T-s 78711 

July 1, 1975 

The Honorable Joe Resweber 

~Harrie County Attorney 

Harris County Courthouse 

Houaton, Texan 77002 

Opinion No. H- 639 

Re: Whether the rtate and 

local sales tax must be collected 

on items sold to inmates of the 

Harris County Jail and Harris 

County RehabilitQtion Center 

from commirraries located at 

each facility. 

Dear Mr. Resweber: 

You have asked for our opinion as to whether commissaries,located 

within, the Harrio County Jail and the Harris County Rehabilitation Center 

muat collect the state and local sales tax on items sold to the iamates of 

theoe facilities. You explain the operation of the commirsaries aa follows: 

These commissaries operate independently and autonomously at each location. The Humble Rehabilitation 

Center is outside the boundaries of the City of Houston, 

and not in any other city, while the Downtown Jail is in 

the City of Houston. The items sold in both are what 

would normally be expected, .cigarettes, soft drinks, 

candies, coneumables, toiletries, and other such 

items which might be normally subject to sales tax. 

Sales are made only to inmates and not to anyone 

else. Each commissary is individually responsible 

for its own purchasing and stocking. Any proceeds 

from such sales beyond those needed for re-stocking 

are applied to the purchase of amenities which would 

otherwise not be available, for the exclusive use land 

benefit of those legally confined in the detention center 

or jail. 

p. 2811 
The Honorable Joe Resweber - Page 2 (H-639) 

Your question concerns only the applicability of the tax laws to the 

sales made by the Commissaries and not the legal status of the Commissaries 

otherwise. Attorney General Opinion C-67 (1963) held that the Sheriff of 

Tarrant County might supply necessary articles to prisoners “at cost” but 

that a profit making commissary in the Tarrant County jail was unauthorized, 

Since you have advised us that any proceeds above the cost of maintaining an 

inventory are used to supply amenities which wculd otherwise,be unavailable 

to prisoners and which the county is not otherwise obligated to provide; we 

assume without deciding that Attorney General Opinion C-67 is inappiicable 

in this case. 

Article 20.02, Taxation-General, imposes a statewide, “limited 

sales tax at the rate of four percent (4%) on the receipts from the sale at 

retail of all taxable items. . . ” which are subject to taxation under the 

Limited Sales, Excis’e and Use Tax Act, -articles 20.01 et seq, TaxationGeneral. 

Articles 1066c, V. T. C. S., known as the “Local Sales and Use Tax 

Act”, imposes a local sales tax “of one percent (1%) on the receipts from 

the sale at retail of all taxabie items within any city adopting such tax which 

items are subject to taxation by the State of, Texas under the Limited Sales, 

Excise and Use Tax Act. ” Sec. 2B, art. 1066~. The City of Houston has 

adopted the local tax. 

The retailer or seller of the items taxable under either Act is 

responsible for the collection of the tax or taxes at the time of the sale. 

Article 20.021 of the Limited Sales, Excise and Use Tax and section 6A of 

the Local Sales and Use Tax Act. 

Exemptions from the imposition of either the state or local tax are 

contained in article 20.04 of the Limited Sales, Excise and Use Tax Act, and 

it is necessary to consider if the commissariesfall within any of the exemptions. 

It sho.uld.firat, be observed, that, while sales to a county and, other 

political subdivisim of the State are exempt from the%position of the sales 

tax, article 20.04, subsection (H)(4), sales by a county or ,other political 

subdivision are not exempted from the tax under any provision of article 

20.04. 

p, 2812 
. - 

The Honorable Joe Resweber - Page 3 (H-639) 

However, another exemption, found in subsection (F) (3), has been 

applied to jail commissaries by the Comptroller of Texaa, the state officer 

charged with administering the state and local sales tax laws. This provision 

exempto! 

.’ Meals and food products (including soft drinks and 

candy) for human consumption when served to patients 

and inmates of hospitals ‘and other institutions 

licensed by the State for the care of human beings. 

Jails are authorized by state statute and the Texas State Department 

of Health is empowered to insure compliance with the statutory sanitation and 

health provisions applicable to jails. V. T. C. S., art. 5115. And the word 

“license” is defined by Webster’s Third New International Dictionary (1967) 

as “a right or permission granted.in accordance with law by a competent 

authority to engage in some business or occupation, to do some act, or to 

engage in some transaction . . . ‘0 a definition that could apply to the 

operation of a jail. Also see House Bill 272 enacted by the 64th Legislature 

(1975). 

Where the meaning of a statute is doubtful, the construction placed 

on it by the officer or ageney charged with administering the statute is entitled 

to weight. Calvert v. Kadane, 427 S. W. 2d 605 (Tex. Sup. 1968). As noted 

above, the Comptroller of Texas is empowered to administer the sales tax 

and has interpreted the exemption contained in subsection F(3) by memorandum, 

dated May 26, 1974, to E. J. Castillo, Director of Field Operations for the 

Comptroller from Fred Russ, Director of the Comptroller’s Sales Tax 

Division. The memorandum provided in part: 

It is requested that you have each District Office check 

with the county jails in the State to determine if commissaries are operating and making taxable sales to inmates. 

If such sales are made and a tax is not charged on taxable 

items sold, the commissary tpgst’secure a permit, poet 

bond and pay tax due, penalty and interest for prior’quarters. 

. . . 

Food items including soft drinks and candy are exempt from 

the tax under Article 20.04 (F)(3). 

p. 2813 
I - 

The Honorable Joe Resweber - Page 4 (H-639) 

We adopt the Comptroller’s interpretation of the applicability of the 

sales tax as applied to jail commiaaaries. 

Accordingly, the commissaries involved must collect the state wide 

sales tax as levied by the Limited Sales, Exdre and Use Tax Act on all items 

sold except food items including soft drinkr and candy. In addition, the Harris 

County Jail, which ia located in the City of Houston, must collect the city sales 

tax imposed by the Local Sales and Use Tax Act. However, the Rehabilitation 

Center, not being located within Houston, need not collect the city sales tax 

since the place of the sale determines whether a tax is due. V. T. C. S., art. 

1066c, section 6B(l). 

S’UMMARY 

The commissary of the Harris County jail must collect 

the state and city sales tax on all items sold except for 

food, soft drinks and candy. The commissary of the 

County Rehabilitation Center must collect the state sales 

tax on all items sold except food, soft drinks and candy, 

but need not collect the city sales tax. 

Very truly youxr, 

rst Assistants 

Opinion Committee 

jwb 

u Attorney General of Texas 

p. 2814