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 inAttorney General Opinion MW-439 that apurchase made withjailcommissary proceeds is subject to competitive procurement requirements. Tex. Att’y Gen. Op. No. MW-439 (1982) at4. 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 forwhich the sheriffmay expend commissary proceeds. TEX.LOCAL GOV'T CODE ANN. 5 351.0415(b)(l), (c) (Vemon 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 inthe County Purchasing Act (the “Act”), chapter 262, subchapter Cofthe 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 acontract 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 afixed sum (basedThe 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 injail-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. 5262.022(l), (3) (Vernon 1999) (defining “bond funds” and “current funds”). “Before acounty may purchase one or more items under acontract that will require anexpenditure 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. 5262.023(a), amended byAct ofMay 21,1999,76th Leg., R.S., ch. 505, 52, 1999 Tex. Sess. Law Serv. 2989,299O; see also TEX.LOCALGOV’TCODE 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 acounty topurchase 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 byAct of May 27, 1985,69th Leg., R.S., ch. 641, § 1l(l), 1985 Tex. Gen. Laws 2377,2384, andreplaced by County Purchasing Act, Act ofMay 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 acontract 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) at4-5. 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 ofthe 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 acommissary in the county jail and to expend commissary proceeds. See TEX.LOCALGOV’TCODEANN.5351.0415 (Vernon 1999). Subsection (a) expressly authorizesThe Honorable Tim Curry - Page 3 (JC-0122)

acounty sheriff either to operate ajail commissary him- orherself orto contract with another person to do so. See id.535 1,0415(a). Subsections(b) and(c) pertain specifically to commissary proceeds:

(b) The sheriff
(1) has exclusivecontrol ofthe commissary funds; [and]

(2) shall maintain commissary accounts showing the amount ofproceeds 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 aprogram addressing the social needs ofthe county prisoners, including aneducational orrecreational 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 alibrary 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” atleast once each fiscal year and report his orher findings to the commissioners court. Id. 5351.0415(d).

Section 351.0415 is one of a growing number of statutes authorizing the creation of special funds that appear tobe outside of“county funds” for some or allpurposes. For example, article 59.06 ofthe Code ofCriminal 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 abudget has been submitted to the commissioners court. See id.art. 59.06(d). Similarly, the hot-check fund, established under article 102.007 ofthe 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 ofthe 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.CODEANN. 523.122(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 acontract on behalf ofthe county. See TEX.LOCALGOV’TCODEANN. 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 anexpenditure that a sheriffmay make without the assistance ofthe 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 orpower ofdirecting and regulating; domination, command, sway.” III OXFORD ENGLISHDICTIONARY 852 (1989); accord Carter v. Curter, 359 S.W.2d 184, 187 (Tex. Civ. App.-Waco 1962), writdism ’d, 362 S.W.2d 646 (Tex. 1962); see also TEX.GOV’TCODEANN.5311.Oll(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. 5 351,0415(c)) and how to select avendor.
Second, section 351.0415 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 ofcommissary suppliers every five years,” does not apply tothe expenditure ofcommissary proceeds. Cf:supra p. 1(explaining why Attorney General Opinion JM-1121(1989) does not apply). Consequently, while a sheriff may award acontract using acompetitive process, neither the Act nor section 351.0415 of the Local Government Code requires him or her to do so. Cf: id. 4351.0415(a), (b)(3). In light ofthis conclusion, we must conclude that section 351.0415 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 351.0415 ofthe 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 351.0415.

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