OFFICE OF THE ATnxNEV GENERAL. STATE OF TEXAS 

JOHN CORNYN 

October 7, 1999 

The Honorable Tim Curry 

Criminal District Attorney 

401 West Belknap Street 

Fort Worth, Texas 76196-0201 

Opinion No. JC-0122 

Re: Whether a purchase from jail-commissary 

proceeds is subject to statutory competitive 

procurement requirements (RQ-0052-JC) 

Dear Mr. Curry: 

This office determined in Attorney General Opinion MW-439 that a purchase made withjailcommissary proceeds is subject to competitive procurement requirements. Tex. Att’y Gen. Op. No. 

MW-439 (1982) at 4. After that opinion was issued, the legislature adopted section 351.0415 ofthe 

Local Government Code,seeAct ofMay28,1989,71stLeg.,R.S., ch. 980, sec. 1,s 351.0415,1989 

Tex. Gen. Laws 4056, which gives the sheriff “exclusive control of the commissary funds” and 

restricts the kinds ofpurchases for which the sheriffmay expend commissary proceeds. TEX. LOCAL 

GOV'T CODE ANN. 5 351.0415(b)(l), (c) (V emon 1999). You ask whether section 351.0415’s 

adoption supersedes Attorney General Opinion MW-439 to the extent the opinion concludes that a 

purchase made with jail-commissary proceeds is subject to competitive procurement requirements 

found in the County Purchasing Act (the “Act”), chapter 262, subchapter C ofthe Local Government 

Code. See Letter from Honorable Tim Curry, Criminal District Attorney, to Attorney General John 

Comyn (Apr. 1,1999) (on file with Opinion Committee) [hereinafter “Request Letter”]. We believe 

it does. 

Attorney General Opinion JM- 112 1, about which you also ask, does not affect Attorney 

General Opinion MW-439. Attorney General Opinion JM-1121 applies to a contract for the 

operationofthecommissary. SeeTex. Att’y Gen. Op.No. JM-1121(1989) at 1; Letter &Brieffrom 

Honorable Tom O’Connell, Collin County Criminal District Attorney, to Sarah Woelk, Assistant 

Attorney General (Oct. 16, 1989) (on tile with Opinion Committee) (proposing that sheriff “may 

operate, or contract with another person to operate,” commissary). The opinion does not apply to 

a sheriffs authority (or lack thereof) to contract for goods or services to be purchased from 

commissary proceeds. A contract to operate ajail commissary differs from a contract to expend jailcommissaty proceeds, and the legal principles applicable to one may not apply to the other. Having 

disposed of Attorney General Opinion JM-1121, we turn to the issue you raise. 

We presume the funds at issue resemble the commissary proceeds described in Attorney 

General Opinion MW-439: 

A private vendor [operates the jail commissary] pursuant to a 

negotiated arrangement whereby the vendor pays a fixed sum (based 
The Honorable Tim Curry - Page 2 (JC-0122) 

upon prisoner population) and a percentage of the receipts for the 

concession. The purchase of items for sale, the prices to be charged 

for them, and other similar management decisions are left to the 

concessionaire. The amounts realized from the vendor are not 

“profits,” strictly speaking, but “income” in the nature of rental 

income. 

Tex. Att’y Gen. Op. No. MW-439 (1982) at 3. You indicate that the sheriff in your county has over 

$300,000 in jail-commissary proceeds. Request Letter, supua, at 1. 

The Act generally requires a county to competitively procure a contract requiring an 

expenditure exceeding $25,000 from the county treasury. TEX. LOCAL GOV’T CODE ANN. 5 

262.023(a),(b) (Vernon 1999),amendedbyActofMay21,1999,76thLeg.,R.S.,ch. 505,s 2,1999 

Tex. Sess. Law Serv. 2989,299O; see also TEX. LOCALGOV’TCODEANN. 5 262.022(l), (3) (Vernon 

1999) (defining “bond funds” and “current funds”). “Before a county may purchase one or more 

items under a contract that will require an expenditure exceeding $25,000 [from the county treasury], 

the commissioners court must comply with the competitive bidding or competitive proposal 

procedures prescribed by this subchapter.” Id. 5 262.023(a), amended by Act ofMay 21,1999,76th 

Leg., R.S., ch. 505, 5 2, 1999 Tex. Sess. Law Serv. 2989,299O; see also TEX. LOCALGOV’T CODE 

ANN. $5 262.022(3), .023(b). 

This office determined in 1982 that items purchased from commissary proceeds must be 

purchased by the commissioners court, not by the sheriff, and that such purchases are subject to 

statutory competitive procurement requirements. See Tex. Att’y Gen. Op. No. MW-439 (1982) at 

3-5. Contemporaneous state law-the Act’s forerunner-required a county to purchase all supplies 

for the use of the “county or any of its officers, departments, or institutions” on the basis of 

competitive bids. See id. at 4 (quoting TEX. REV. CIV. STAT. ANN. art. 1659a, repealed by Act of 

May 27, 1985,69th Leg., R.S., ch. 641, § 1 l(l), 1985 Tex. Gen. Laws 2377,2384, and replaced by 

County Purchasing Act, Act of May 27, 1985,69th Leg., R.S., ch. 641, 5 1, 1985 Tex. Gen. Laws 

2377, 2377-79). Because at that time (before the adoption of section 351.0415 of the Local 

Government Code) the sheriff had no authority either to enter a contract on behalf of the county or 

to spend commissary proceeds, the opinion suggests that the sheriff may not expend or determine 

how to expend the proceeds. See Tex. Att’y Gen. Op. No. MW-439 (1982) at 4-5. To the contrary, 

commissary proceeds must be “subject to public accountability and statutory safeguards respecting 

its expenditure.” Id. at 3. Thus, the opinion concludes, only a commissioners court may expend 

commissary proceeds, and the court must do so in compliance with applicable competitive 

procurement requirements. See id. at 5. 

Subsequently, the legislature adopted section 351.0415 of the Local Government Code, see 

Act ofMay28,1989,71stLeg.,RS.,ch. 980, sec. 1,s 351,0415,1989Tex. Gen. Laws4056,which 

authorizes a sheriff to operate a commissary in the county jail and to expend commissary proceeds. 

See TEX. LOCAL GOV’T CODE ANN. 5 35 1.0415 (Vernon 1999). Subsection (a) expressly authorizes 
The Honorable Tim Curry - Page 3 (JC-0122) 

a county sheriff either to operate a jail commissary him- or herself or to contract with another person 

to do so. See id. 5 35 1,0415(a). Subsections(b) and(c) pertain specifically to commissary proceeds: 

(b) The sheriff 

(1) has exclusive control of the commissary funds; [and] 

(2) shall maintain commissary accounts showing the 

amount of proceeds from the commissary operation and the amount 

and purpose of disbursements made from the proceeds; 

(c) The sheriff may use commissary proceeds only to: 

(1) fund, staff, and equip a program addressing the social 

needs ofthe county prisoners, including an educational or recreational 

program and religious or rehabilitative counseling; 

(2) supply county prisoners with clothing, writing 

materials, and hygiene supplies; 

or 

(3) establish, staff, and equip the commissary operation; 

(4) fund, staff, and equip a library for the educational use 

of county prisoners. 

Id. 5 351,0415(b), (c) (emphasis added); see also Tex. Att’y Gen. Op. No. MW-143 (1980) at 2 

(concluding that sheriff may operate jail commissary at profit). The county auditor must “fully 

examine the commissary accounts” at least once each fiscal year and report his or her findings to the 

commissioners court. Id. 5 351.0415(d). 

Section 35 1.0415 is one of a growing number of statutes authorizing the creation of special 

funds that appear to be outside of“county funds” for some or all purposes. For example, article 59.06 

of the Code of Criminal Procedure creates, for the disposition of forfeiture proceeds, “a special fund 

in the” county or municipal treasury to benefit the prosecutor’s office or the local law-enforcement 

agency. TEX. CODE GRIM. PROC. ANN. art. 59.06(c) (Vernon Supp. 1999). While the beneficiary 

prosecutor or law-enforcement agency has sole authority to determine how to expend the forfeiture 

fund, the money may be spent only after a budget has been submitted to the commissioners court. 

See id. art. 59.06(d). Similarly, the hot-check fund, established under article 102.007 of the Code of 

Criminal Procedure, “shall be deposited in the county treasury in a special fund to be administered 

by the” prosecutor whose office collects and processes a hot check. See id. art. 102.007(a), (f). 

“Expenditures from [the hot-check] fund shall be at the sole discretion of’ the prosecutor. Id. art. 
The Honorable Tim Curry - Page 4 (JC-0122) 

102.007(f). On the other hand, section 23.122 of the Tax Code creates the motor-vehicle-inventorytax escrow fund held outside the county treasury, the interest on which becomes the “sole property”of 

the county tax assessor-collector. TEX. TAX. CODE ANN. 5 23.122(c) (Vernon Supp. 1999). To the 

extent that the statutes creating special funds do not expressly specify, these special funds raise 

questions regarding their status as “county funds” and procedures applicable to them. 

We conclude that an expenditure from commissary proceeds need not be competitively 

procured. First, an expenditure from commissary proceeds is not subject to the Act. The Act 

contemplates that only the county commissioners court may enter a contract on behalf of the county. 

See TEX. LOCAL GOV’T CODE ANN. 5 262.023(a). The Act does not apply to purchases within the 

exclusive authority of a county official other than the county commissioners court. See id. 

Accordingly, the Act does not apply to an expenditure that a sheriffmay make without the assistance 

of the commissioners court. 

Because a sheriff may contract to expend commissary proceeds without the commissioners 

court’s assistance, the sheriff need not award contracts expending such proceeds using the Act’s 

competitive procurement procedures. Section 351.0415 gives the sheriff “exclusive control” of 

commissary funds. “Control” denotes “the function or power ofdirecting and regulating; domination, 

command, sway.” III OXFORD ENGLISH DICTIONARY 852 (1989); accord Carter v. Curter, 359 

S.W.2d 184, 187 (Tex. Civ. App.-Waco 1962), writ dism’d, 362 S.W.2d 646 (Tex. 1962); see also 

TEX. GOV’TCODE ANN. 5 311 .Ol l(a) (Vernon 1998) (directing interpreter to define statutory words 

consistently with grammar and common usage). Additionally, the sheriff has sole power to decide 

what items to purchase from commissary proceeds (within the statutory parameters, see TEX. LOC. 

GOV’T CODE ANN. 5 35 1,0415(c)) and how to select a vendor. 

Second, section 35 1.0415 does not require the sheriffto competitively procure purchases from 

commissary proceeds. Subsection (b)(3), which requires a sheriff to “accept new bids to renew 

contracts of commissary suppliers every five years,” does not apply to the expenditure of commissary 

proceeds. Cf: supra p. 1 (explaining why Attorney General Opinion JM-1121(1989) does not apply). 

Consequently, while a sheriff may award a contract using a competitive process, neither the 

Act nor section 351.0415 of the Local Government Code requires him or her to do so. Cf: id. 

4 35 1.0415(a), (b)(3). In light of this conclusion, we must conclude that section 35 1.0415 supersedes 

Attorney General Opinion MW-439 to the extent the opinion determines that the expenditure of 

commissary proceeds is subject to competitive bidding. 
TheHonorableTimCmry - Page 5 (JC-0122) 

SUMMARY 

A sheriff may expend commissary proceeds under section 

35 1.0415 of the Local Government Code without complying with the 

County Purchasing Act, chapter 262, subchapter C of the Local 

Government Code. To the extent Attorney General Opinion MW-439 

(1982) concludes that an expenditure from commissary proceeds must 

be competitively bid by the county commissioners court, it has been 

superseded by the enactment of section 35 1.0415. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

ELIZABETH ROBINSON 

Chair, Opinion Committee 

Kymberly K. Oltrogge 

Assistant Attorney General - Opinion Committee