DAN MORALES

Al-rORNEY GENERAL 

# Qwiceoftip!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 ajail commissary under section 351.0415of the Local Government Code. Section 351.0415(a) provides as follows: The sheriff ofa ‘countywith a population ofunder 1,000,000

according to the last federal census may operate, or contract with another person to operate, a commissary for the use ofthe prisoners committed to the countyjail. The commissary must be operated in accordance with rules adopted by the Commission onJail 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 inwhichthe sheriffhas contracted with a third party for the operation of a jail commissary. and you ask several questions about the application of section 351.0415in that context. Your first question is whether the commissioners court has any authority inregard to the terms and conditions ofsuch a contract.

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Generally, the sheriff does not have authority to contract for the county. Anderson v.Wood, 152S.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 ofajail 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 onthe sheriffs authority to contract isthe prohibition in article III, section 51,ofthe Texas Constitution onthe donation ofpublic funds or property. That provision does not prohibit the sheriff from contracting with a private party to operate ajail commissary, but itdoes require that the county obtain an adequate quid pro quo. Dot&onv. 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 isattributable to the operation of the commissary isto be used for the benefit ofinmates. SeegenerallyAttorney General Opinion MW-439at 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 ofthe commissary funds and that the sheriff isto maintain commissary accounts showingthe amount ofproceeds from the commissary operation and the amount and purpose ofdisbursements made from the proceeds. Subsection (d) provides asfollows:

At least once each quarter ofa county’s fiscalyear, or more often if the county auditor desires, the auditor shall, without advance notice, fully examine thejail 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 suchrecords, even ifthey are actually maintained by the commissary operator. The county auditor would have no right toinspect other records ofthe operator. 

### SUMMARY The county commissioners court may not interfere with the sheriffs exercise ofdiscretion 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 isauthorized to review commissary accounts, even if the accounts are maintained by the operator of the commissary.

DAN ‘MORALES Attorney General ofTexas WILL PRYOR First Assistant Attorney General MARY KELLER Deputy Assistant Attorney General JUDGE ZOLLIE STEAKLEY (Ret) Special Assistant Attorney General

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RENBA HICKS Special Assistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by Sarah Woelk Assistant Attorney General

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