Attorney General Opinion KP-0271

KEN PAXTON ATTORNEY GENERAL OF TEXAS The Honorable Noble D. Walker, Jr. Hunt County District Attorney Po.st Office Box 441 Greenville, Texas 75403-0441 Dear Mr. Walker: September 24, 2019 Opinion No. KP-0271 Re: Whether a sheriff may expend commissary funds for a salary stipend for a deputy sheriff with duties related to operation of the commissary (RQ-0284-KP) You ask about a county sheriffs use of county jail commissary funds to finance a salary stipend for a deputy sheriff. 1 Your questions stem from section 351.0415 of the Local Government Code, which authorizes a sheriff to operate a commissary within certain administrative and expenditure parameters for use. by county jail inmates. See generally TEX. Loe. Gov'T CODE § 3 51. 0415. You set forth a list of ten duties, as relayed to you by the sheriff, outlining the deputy's responsibilities with regard to the commissary fund. Request Letter at 2-3. On the basis of those duties, you ask whether a sheriff may expend county jail commissary funds on a salary stipend for the deputy and, if so, whether the amount of the stipend must bear some reasonable relationship to the time and effort spent performing those duties. Id. at 3. A sheriff or his designee "may operate, or contract with another person to operate, a commissary for the use of inmates committed to the county jail." TEX. Loe. Gov'T Com~ § 351.0415(a). Subsection 351.0415(b) of the Local Government Code generally places the "exclusive control" of commissary funds in the hands of the sheriff.2 Id.§ 351.0415(b)(l). That said, a sheriff "may use commissary proceeds only" for the purposes set forth by statute, which are to: (1) fund, staff, and equip a program addressing the social needs of the inmates, including an educational or recreational program and religious or rehabilitative counseling; 1See Letter from Honorable Noble D. Walker, Jr., Hunt Cty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 3 (Apr. 17, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). 2Not applicable here, a narrow exception to the sheriff's exclusive control over commissary funds exists for a county meeting particular population and geographic requirements. See TEX. Loe. Gov'T CODE§ 351.04 l 55(a). The Honorable Noble D. Walker, Jr. - Page 2 (KP-0271) (2) supply inmates with clothing, writing materials, and hygiene supplies; (3) establish, staff, and equip the commissary operation and fund the salaries of staff responsible for managing the inmates' commissary accounts; ( 4) fund, staff, and equip both an educational and a law library for the educational use of inmates; or (5) fund physical plant improvements, technology, equipment, programs, services, and activities that provide for the well-being, health, safety,-and security of the inmates and the facility. Id. § 351.0415(c); see also id.§ 351.0415(a) (providing that the operation of the commissary fund must also comply with rules adopted by the Commission on Jail Standards). 3 Subsection 351.0415(c)(3) expressly allows the sheriff to use commissary funds to "staff ... the commissary operation and fund the salaries of staff responsible for managing the inmates' commissary accounts." Id. § 351.0415(c)(3). In addition, subsections 351.0415(c)(l) and (4) authorize the sheriff to use commissary funds to "staff' social needs programs, an educational library, and a law library, suggesting that expenditures associated with providing staff for those particular programs, such as salaries, could come within the parameters of the statute. Id.§ 351.0415(c)(l), (4). You tell us that among his or her duties, the chief deputy "supervises ... the commissary account" and "reviews [ and] approves expenditures and purchases" from the account. Request Letter at 2. While these activities·appear to fall within the scope of permissible expenditures for commissary proceeds under subsection 351.0415(c), this office cannot so conclude as a matter of law. See Tex. Att'y Gen. Op. No. KP-0159 (2017) at 1 ("The propriety of a particular expenditure from a commissary account is a question of fact that we cannot answer in an attorney general opinion."). Instead, the sheriffs authority to "use commissary proceeds only" for statutory purposes and his or her "exclusive control of the commissary funds" gives the sheriff the authority to initially determine whether the duties of the deputy fall within the scope of subsection 351.0415(c) so as to justify the expenditure, subject to administrative review by the Commission on Jail Standards as well as judicial review under an abuse of discretion standard. See TEX. Loe. Gov'T CODE § 351.0415(b)(l), (c); TEX. Gov'T CODE§ 511.011; see also Fort Bend Cty. Wrecker Ass 'n v. Wright, 39 S.W.3d 421, 425-26 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (concluding that a sheriff"has the power to make and enforce rules, regulations, and policy"); Tex. Att'y Gen. Op. No. KP-0159 (2017) at 2 (recognizing the actions of a sheriff are subject to judicial review under an abuse of discretion standard and administrative review by the Commission on Jail Standards). Regarding your second question, subsection 351.0415 does not directly address the relationship between the amount of commissary fund expenditures and the time and effort spent performing such authorized activities. However, judicial review under an abuse of discretion standard incorporates the principle that "a decision so arbitrary and unreasonable as to amount to 3Commissary proceeds may not, however, "fund the budgetary operating expenses of a county jail." Id. § 351.041 S(g). The Honorable Noble D. Walker, Jr. - Page 3 (KP-0271) a clear and prejudicial error oflaw" can form the basis for a mandamus action. Walker v. Packer, 827 S.W.2d 833,839 (Tex. 1992); see also Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) (holding that "a writ of mandamus may issue in a proper case to correct a clear abuse of discretion by a public official"). Thus, a court would likely conclude that an expenditure of commissary funds under subsection 351.0415(c) is not arbitrary if the amount of the expenditure is reasonable in light of the performance of the authorized activities. The Honorable Noble D. Walker, IL - Page 4 (KP-0271) SUMMARY The sheriffs "exclusive control" of commissary funds under subsection 351.0415(b)(l) of the Local Government Code and his or her authority under subsection 351.0415(c) to "use commissary proceeds only" for statutory purposes gives the Hunt County sheriff the authority to initially determine whether an expenditure is authorized, subject to administrative review by the Commission on Jail Standards and judicial review under an abuse of discretion standard. A court would likely conclude that an expenditure of commissary funds under subsection 351.0415(c) is not arbitrary if the amount of the expenditure is reasonable in light of the performance of the authorized activities. JEFFREY C. MATEER First Assistant Attorney General RYAN L. BANGERT Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee BECKY P. CASARES Very truly yours, KEN PAXTON Attorney General of Texas Assistant Attorney General, Opinion Committee