April 25, 1963

Honorable Doug Crouch Opinion No. C- 67 DistrictAttorney Tarrant County Re: Various questionsrelative Fort Worth, Texas to the operationof the Tarrant County Jail CommlsDear Mr. Crouch: sax-y.

This office is in receipt of your request for an opinion concerningthe followingquestions:

"(1) Is the operationof a 'Commissary,' within the confines of the Tarrant County Jail, which .seI,ls

toilet articlesand authorizes Items for the exclusivepersonaluse and benefit of those legally confined therein,within the purview of the law. "(2) Would the operation,supervisionand control of such a facility,to Include purchasing of merchandise,be vested In:

a. The Sheriff b. The County Auditor c. The Commissioners Court

“(3) ILay

the purchaseof supplies necessary to such facilitybe effected from revenue and funds realized through the operation thereof. "(4) May any profit realized from the operation of such a facilitybe retained,used and accounted for, by the.Sherlff,for the purchase of uniforms and miscellaneous equipment to be used by the Sheriff's Office."
Your statement of the facts Is as follows:
"It has been a practice of long standing in Tarrant County, to provide a lcommlssaryt facilityHon. Doug Crouch, page 2 (C-67 )

for the exclusive use and benefit of persons legally confined in the County Jail.
'Items authorizedfor sale to such persons are purchasedby the County PurchasingAgent. "The facility Is operatedwithin the confines of the jail proper by the Sheriff. All revenue from the sale of the Items concerned Is transferred to the County Auditor,who in turn deposits same in the appropriatefund." The following statute Is pertinent to the questions propoundedthis office:

"Art. 5116. Sheriffand jailer "Each sheriff is the keeper of the jail of his county. He shall safely keep therein all prlsoners committedtheretoby lawful authority,subject to the order of the proper court, and shall be responsiblefor the safe keeping of such prisoners. The sheriff may anvolnta .laller to take charge of the jail, and suppiy the wants of those therern confined;but shall exercise a sunervlsionand control over the Jail." (Emphasis-added). The power of the Commissioners Court is limited to that conferredby the Constitution and statutes, either expresslyor by necessary lmpllcatlon. Von Rosenbergv. Iovett, 173 S.W. 308 (Tex.Clv.App.1915, error ref.); Roper v. Hall 260 S.W. 289 ~(Tez, Clv.App. 1925); Hill v.Sterrett, 252 S W 2d 466 (Tex. Clv.App 1952, error ref. n.r.e.).. After a thor$h search, this off& can find no express or Impliedauthority for the operationof a “commissary” such as you describe.

Article 5116, supra, authorizes the sheriffto&u~~ly the “wants” of those prisonersconfined in the jail. - fice has repeatedlyheld that the sheriff is authorizedto purchase all food and “necessary supplies" for the prisoners. Purther, that It Is not the duty of the Commissioners' Court, County Auditor or the County Purchasing Agent to purchase the food and necessary suppliesof the prisonersbut this duty is speclficallp imposed on the sheriff. Since all sheriffshave been compensate6 on a salarybasis since January 1, 1949, the sheriff cannot 'be allowed specific fees or commissions by the county for feeding the prisoners In jail, but he is entitled to all actual and

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necessary expenses Incurredby him for feeding the p"lsoners In his custody. AttorneyGeneral's OpinionsNos. V-359 (19&T), V-1188 (1951),and V-1232 (1951).

Since this office can find neitherexpress nor lmplied authority for the operationof a “commissary” as you described,which sells toilet articles, etc., for the use of prisoners In a county jail, we feel that the present operation of the commissary is not wlthln the purview of existing law. We are of the opinion that toilet articlesand other personal Items could be sold at cost to the prisonersto provide their wants, as It would be within the purview of Article 5116, Vernon's Civil Statutes. We are of the furtheropinion that the operation, supervision and control of such a facility, to lnelude purchasingof merchandise,is vested in the sheriff. SUMMARY The operationof a profit making "commissary" within the confines of the Tarrant County jail which sells toilet articlesand authorized Items for the exclusive personal use and benefit of those legally confined therein, is not authorizedeither expresslyor implledlyby existing law. However, the sheriff may supply at cost the necessary supplies for prisonersand the sheriffwould have control over the purchase of such items for the prisoners within his jail. Sincerely, XACGONER CARR AttorneyGeneral

BM:wb:mkh APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Polk Shelton Frank Booth Norman Suarez APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone. Bill Morse, Jr. Assistant

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