DAN MORALES 

Al-rORNEY GENERAL 

Qwice of tip! mtornep 

&ate of Qexae 

December 11.1991 

Q3eneral 

Honorable Travis S. Ware 

Chinal District Attorney 

Lubbock County 

P. 0. Box 10536 

Lubbock, Texas 794083536 

Opinion No. DM-67 

Re: Operation of a jail commissary 

under section 351.0415 of the Local 

Government Code (RQ-148) 

Dear Mr. Ware: 

You ask several questions about the operation of a jail commissary under 

section 351.0415 of the Local Government Code. Section 351.0415(a) provides as 

follows: 

The sheriff of a ‘county with a population of under 1,000,000 

according to the last federal census may operate, or contract 

with another person to operate, a commissary for the use of the 

prisoners committed to the county jail. The commissary must be 

operated in accordance with rules adopted by the Commission 

on Jail Standards. 

The sheriff has exclusive control of the commissary funds and is to maintain 

commissary accounts showing the amount of proceeds from the commissary 

operation and the amount and purpose of disbursements made from the proceeds. 

Id subset. (b). Subsection (c) sets out the purpose for which the sheriff may use 

“commissary proceeds.” The county auditor has authority to examine ‘jail 

commissary accounts.” Id subset. (d). See genem& Attorney General Opinions 

DM-19 (1991); JM-1121 (1989); MW-439 (1982); MW-143 (1980); C-67 (1963); 

Letter Qpinion LQ-90-42 (1990). 

You describe a situation in which the sheriff has contracted with a third party 

for the operation of a jail commissary. and you ask several questions about the 

application of section 351.0415 in that context. Your first question is whether the 

commissioners court has any authority in regard to the terms and conditions of such 

a contract. 

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Honorable Travis S. Ware - Page 2 4 DM-67) 

Generally, the sheriff does not have authority to contract for the county. 

Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941); Attorney General Opinion DM-19. 

In this case, however, the legislature has given the sheriff express authority to enter 

into a contract for the operation of a jail commissary. The commissioners court has 

no authority to control the sheriffs exercise of discretion in this regard. See 

generally Attorney General Opinions JM-1121 (1989); MW-439 (1982); H-1190 

(1978). The sheriff must, of course, exercise his discretion in accordance with the 

constitution and with his statutory authority. 

A significant limitation on the sheriffs authority to contract is the prohibition 

in article III, section 51, of the Texas Constitution on the donation of public funds or 

property. That provision does not prohibit the sheriff from contracting with a 

private party to operate a jail commissary, but it does require that the county obtain 

an adequate quid pro quo. Dot&on v. Marshall, 118 S.W.2d 621, 624 (Tex. Civ. 

App.--Waco 1938, writ dism’d). You state that the lease in question requires the 

operator to provide television sets and to pay 50 cents per square foot annually for 

the space used to house the commissary. Whether this particular contractual 

arrangement satisfies article III, section 51, is a fact question, which we cannot 

resolve in the opinion process. 

You also ask whether the operator’s payments to the sheriff are “commissary 

proceeds” that must be used for the benefit of inmates. Section 351.0415 makes 

clear that any money the sheriff receives that is attributable to the operation of the 

commissary is to be used for the benefit of inmates. See generally Attorney General 

Opinion MW-439 at 4. 

Your third question is whether the county auditor may review the accounts 

maintained by the commissary operator. Subsection (b) of section 351.0415 

provides that the sheriff has exclusive control of the commissary funds and that the 

sheriff is to maintain commissary accounts showing the amount of proceeds from the 

commissary operation and the amount and purpose of disbursements made from the 

proceeds. Subsection (d) provides as follows: 

At least once each quarter of a county’s fiscal year, or more 

often if the county auditor desires, the auditor shall, without 

advance notice, fully examine the jail commimary accounts. The 

auditor shall verify the correctness of the accounts and report 

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the findings of the examination to the commissioners court of 

the county at its next term beginning after the date the audit is 

completed. 

Taken together, those provisions establish the county auditor’s right of access to 

records showing the amount of money taken in by the commissary and the 

disbursements from that money. The county auditor cannot be denied access to 

such records, even if they are actually maintained by the commissary operator. The 

county auditor would have no right to inspect other records of the operator. 

SUMMARY 

The county commissioners court may not interfere with the 

sheriffs exercise of discretion in contracting for the operation of 

a jail commissary under section 351.0415 of the Local 

Government Code. Any funds the sheriff receives that are 

attributable to the operation of the commissary are to be used 

for the~benefit of inmates in accordance with section 351.0415. 

The county auditor is authorized to review commissary accounts, 

even if the accounts are maintained by the operator of the 

commissary. 

DAN ‘MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret) 

Special Assistant Attorney General 

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Honorable Travis S. Ware - Page 4 (DM-67) 

RENBA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

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