Untitled Texas Attorney General Opinion: KP-0495

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

June 25, 2025

Mr. Steven Daughety
Cherokee County Auditor
135 South Main, 3rd Floor
Rusk, Texas 75785

Opinion No. KP-0495

Re: Authorities and obligations regarding phone-card sales at a county jail (RQ-0570-KP)

Dear Mr. Daughety:

You ask a series of questions related to Cherokee County’s provision of phone services to
county jail inmates. 1 You tell us that the county jail’s phone services and commissary operations
are delivered by different outside providers by contract. Request Letter at 1. You explain that
inmates’ phone services were previously delivered through a “PIN debit system,” in which the
resulting revenue was placed in the County’s general fund. Id. But in January 2024, the Sheriff
notified your “office that the jail would be transitioning to phone card sales in place of phone PIN
debit time,” and the corresponding revenue from “these phone cards would be placed in the
[c]ommissary account.” Id.

On this backdrop, you first ask about the proper location for the deposit of phone card
revenues where “the ordering, fulfillment, and fund allocation for phone card transactions is
distinct and separate from that of commissary transactions.” Id. at 2. You next ask about the
parameters of placing phone card revenues “in the [c]ommissary profit account” and whether “the
Sheriff [may] have a second, separate operation for phone cards sales” where the revenue is treated
as commissary proceeds. 2 Id. Finally, you ask whether the Commissioners Court’s jail and
contracting authority authorizes it to “reinstate the PIN debit system” or if the “selection of phone
service methods solely lie with the Sheriff as keeper of the jail.” Id.

1
See Letter from Mr. Steven Daughety, Cherokee Cnty. Auditor, to Hon. Ken Paxton, Tex. Att’y Gen. at 2
(Nov. 1, 2024), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2024/RQ0570KP.pdf
(“Request Letter”).
2
We appreciate the background you provide regarding the purchase of phone cards from commissary
proceeds but do not understand you to ask whether commissary proceeds may be used to purchase phone cards. Id. at
2 n.1. That question involves fact issues that are beyond the scope of this opinion, Tex. Att’y Gen. Op. No. KP-0159
(2017) at 1, and we offer no comment on this issue.
Mr. Steven Daughety - Page 2

County jails must provide for inmate telephone and commissary privileges.
We begin by providing background on the telephone and commissary privileges that
county jails are obligated to provide. County jails must comply with the minimum standards
established by the Legislature in Local Government Code Chapter 351, subchapter A, as well as
the “minimum standards and the rules and procedures [set by] the Commission on Jail Standards.”
TEX. LOC. GOV’T CODE § 351.002. Relevant here, the Commission’s rules require jail facilities to
implement a telephone and commissary plan. See 37 TEX. ADMIN. CODE §§ 291.1, .3 (addressing
both, respectively).
Both plans concern privileges that must be provided to inmates. The inmate telephone plan
is a “written plan[] . . . governing the availability and use of inmate telephones” that must satisfy
several requirements set out by the Commission. Id. § 291.1. In relevant part, facilities must
provide for “reasonable access” of both local and long-distance telephone services that “may be
on a prepaid or collect basis.” Id. § 291.1(2). After booking, facilities also must provide telephone
access “on a prepaid or collect basis” and provide a “free telephone . . . for local calls” for certain
inmates. Id. § 291.1(1). The inmate commissary plan is a “written plan[] . . . governing the
availability and use of an inmate commissary which allows for the purchase of hygiene items and
sundries,” with various requirements as set out by the Commission. Id. § 291.3; see also Tex. Att’y
Gen. Op. No. DM-19 (1991) at 1–2 (describing a commissary as providing “toilet articles and
other personal items to inmates”).
Though county jails must provide both privileges, telephone and commissary privileges
are separate. See, e.g., Tex. Att’y Gen. Op. No. DM-19 (1991) at 2–3 (noting that the
“categorization” of “[t]elephone privileges and commissary privileges” indicates that the term
“commissary” does not include “pay telephones”); see also, e.g., Tex. Att’y Gen. LO-96-032
(1996) at 3 (reasoning that the Legislature adopted Section 351.0415 “based on the distinction
between telephone and commissary privileges” thereby preventing the Commission from
“includ[ing] telephone service within commissary services”). Indeed, the separate treatment of
these two privileges is recognized by the Commission’s treatment of the privileges as separate
rules. See 37 TEX. ADMIN. CODE §§ 291.1, .3. And the exercise of each of these inmate privileges
may also generate revenue. See, e.g., Tex. Att’y Gen. Op. No. GA-0814 (2010) at 2, 4 (referring
to revenue from the commissary and telephone services).
The separate treatment of inmate telephone and commissary privileges creates two
sources of phone revenue that are deposited in different funds and could result in
phone services and items offered under both privileges.
Your first two questions concern the parameters of where to deposit the phone cards’
revenue, focusing on when the “phone card revenue [should] go to the general fund or commissary
profit account.” Request Letter at 2. This requires us to consider the “nature of the particular
funds,” Tex. Att’y Gen. Op. No. KP-0019 (2015) at 2, and consider the “source” of the revenue
itself, Tex. Att’y Gen. Op. No. KP-0079 (2016) at 3. As you signal, the possible “sources” of
phone cards’ revenue relevant here are from the exercise of either telephone privileges or
commissary privileges. See Request Letter at 1.
Mr. Steven Daughety - Page 3

In general, the county treasurer receives “all money belonging to the county from whatever
source it may be derived.” TEX. LOC. GOV’T CODE § 113.003. County officers who collect “fees,
commissions, funds, and other money belonging to a county shall” deposit the money with the
county treasurer, who then “deposit[s] the money in the county depository in the proper fund to
the credit of the person or department collecting the money.” Id. § 113.021(a)–(b). But not all
funds held by a county official in his or her official capacity are funds “belonging to the county.”
Section 351.0415 of the Local Government Code, for example, authorizes a county sheriff “or the
sheriff’s designee” to operate the “commissary for the use of the inmates committed to the county
jail.” Id. § 351.0415(a). As part of this authority, the sheriff or sheriff’s designee has “exclusive
control of the commissary funds” 3 and “maintain[s] commissary accounts” related thereto. Id.
§ 351.0415(b)(1)–(2); see also Tex. Att’y Gen. Op. No. JS-0005 (2023) at 3 (explaining that
exclusive control means these individuals have “sole authority . . . to direct and regulate the
commissary funds”). Thus while commissary proceeds generated under Section 351.0415 are not
funds “belonging to the county” and would not be properly deposited with the county treasurer,
Tex. Att’y Gen. Op. No. GA-0791 (2010) at 3, inmate telephone privileges fall outside the scope
of Section 351.0415 and corresponding revenue would be deposited with the county treasurer, see,
e.g., Tex. Att’y Gen. Op. Nos. KP-0295 (2020) at 3 (concluding that “revenue derived from money
allocated from an inmate trust fund account to a phone service provider’s PIN debit account must
be credited to the general fund”), GA-0059 (2003) at 3 (concluding that “proceeds generated from
the inmate telephone contract . . . are county funds”).
Here, you acknowledge that the “phone card transactions [are] distinct and separate from
[the] commissary transactions” and explain that these phone cards “are not available through the
commissary order process.” Request Letter at 1–2. You also note that the phone cards are “acquired
directly” from the County’s “phone provider,” which is a different entity than the County’s
commissary provider. Id. at 2. As such, the resulting revenue must be deposited into the County’s
general fund because there can be no purchase from the commissary when the phone cards are not
items sold in the commissary. Though we acknowledge a phone card could qualify as a “sundry”
that can be sold in a commissary, Tex. Att’y Gen. Op. No. GA-0814 (2010) at 4, a commissary
purchase does not turn on possibilities.4 Commissary proceeds result from “a purchase from the
commissary” or, stated differently, a purchase derived from the commissary operation. See Tex.
Att’y Gen. Op. No. KP-0295 (2020) at 2 n.3, 3.
Even more, the phone cards you describe could not constitute a commissary purchase
because they are separate from the provision of the commissary privilege and derive from inmate

3
An exception presently exists for a sheriff’s exclusive control in counties with a population of 2.1 million
or more. See TEX. LOC. GOV’T CODE § 351.04155(a); see also TEX. GOV’T CODE § 311.005(3) (defining
“population”). But Cherokee County does not qualify. U.S. CENSUS BUREAU, https://www.census.gov/quickfacts/
cherokeecountytexas (last visited Feb. 21, 2025) (reporting population of 50,412). Accordingly, we do not address the
exception further.
4
This office previously stated that “[r]evenue deriving from prepaid phone cards are part of the sheriff’s
commissary proceeds, which may be held outside the county treasury, whereas revenue from pay telephones and
telephone services are not, in which case they are paid to the county treasurer.” Tex. Att’y Gen. Op. No. KP-0079
(2016) at 3. This statement should not be read as classifying prepaid phone cards as commissary proceeds per se and
instead sought to highlight the effect of the separate treatment of telephone and commissary privileges on telephone
revenues. See id. (citing Tex. Att’y Gen. Op. No. GA-0814 (2010) at 3–5).
Mr. Steven Daughety - Page 4

telephone privileges. For example, in Attorney General Opinion GA-0814, this office considered
whether proceeds derived from a commissary’s sale of prepaid phone cards to inmates were subject
to the sheriff’s exclusive control. Tex. Att’y Gen. Op. No. GA-0814 (2010) at 1. The opinion
observed that the phone cards sold in the commissary lacked a “relevant basis for distinguishing”
them from “other commissary items” where phone cards were sold “separate from the telephone
service contract,” and there was no suggestion the “phone cards would replace the telephone
service contract[] or that inmates would always opt to use a prepaid phone card to
obtain . . . telephone service.” Id. at 4. An inmate also did not need to “procure” a phone card “to
obtain telephone service for himself.” Id. In other words, there was “no necessary correlation
between the sale of a prepaid phone card and the provision of toll telephone service in a county
jail.” Id. Accordingly, revenues from phone cards purchased as a commissary item with no
“correlation” with the provision of inmate telephone privileges are commissary proceeds. See id.
The situation you describe here contrasts with that in GA-0814, further highlighting the
separate nature between inmate telephone and commissary privileges. We understand from the
facts you provide that the phone cards, in addition to not being sold in the commissary, are offered
to provide inmates their required telephone privileges. Request Letter at 1 (noting that the phone
card replaced the PIN debit system previously in place). Thus, the phone cards you describe are
also not considered a commissary purchase that generates commissary proceeds because they are
necessarily correlated with the inmate telephone privilege. This further demonstrates that the
revenues from the phone cards you describe must be deposited in the County’s general fund.
This separation between inmate telephone and commissary privileges is key in addressing
your question as to whether a sheriff may “have a second, separate operation for phone card sales,”
where the revenue would be kept in the “[c]ommissary profit account.” Id. at 2. As discussed,
phone cards purchased from the Sheriff’s commissary operation would result in the Sheriff
retaining the revenue as commissary proceeds, but purchases derived from the exercise of inmate
telephone privileges would be deposited with the county treasury. See, e.g., Tex. Att’y Gen. Op.
No. KP-0295 (2020) at 2 n.3, 3. Thus, the separate treatment of telephone and commissary
privileges could result in a situation where both privileges offer some telephone service or item.
E.g., Tex. Att’y Gen. Op. No. GA-0814 (2010) at 1, 4. Accordingly, if the phone cards are
purchased as a commissary item with no “correlation” to the provision of inmate telephone
privileges, a sheriff may retain the revenue as commissary proceeds. Id. at 4. This is so even if the
County separately delivers the inmate telephone privileges by phone cards. See, e.g., id. at 1, 4.
The Commissioners Court may select the method of providing telephone privileges to
inmates so long as the method complies with the Commission’s associated rule.
We understand your last series of questions to concern whether the Commissioners Court
or the Sheriff selects the “phone service method” used by the County to provide inmate telephone
privileges. See Request Letter at 1–2. Accordingly, we look at the Commissioners Court’s
authority as applied to this privilege.
A commissioners court has the express powers granted to it by the Texas Constitution or
the Legislature, as well as “the implied authority to exercise the power necessary to accomplish its
assigned duty.” City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003); see also
TEX. CONST. art. V, § 18(b). Relevant here, a commissioners court possesses sole authority to
Mr. Steven Daughety - Page 5

“make contracts binding on the county,” unless a statute provides otherwise. Anderson v. Wood,
152 S.W.2d 1084, 1085 (Tex. 1941). A sheriff, however, “has no authority to make contracts that
are binding on the county, except where he [or she] is . . . authorized to do [so] by statute.” Id. As
discussed, the Commission’s inmate telephone rule “requires that counties provide certain
telephone services to inmates” that meet various requirements. Tex. Att’y Gen. Op. No. GA-1041
(2014) at 2; 37 TEX. ADMIN. CODE § 291.1; see also supra p. 2 (discussing some of the inmate
telephone rule’s requirements). Unlike Section 351.0415 for jail commissaries, the legislative
directive requiring compliance with this Commission rule provides the Sheriff no authority to
contract for this privilege. Compare TEX. LOC. GOV’T CODE § 351.002, with id. § 351.0415.
Indeed, the “[S]heriff has no contracting authority regarding the provision of telephone services to
jail inmates.” Tex. Att’y Gen. LO-97-030 (1997) at 4, modified on other grounds, Tex. Att’y Gen.
Op. No. GA-0059 (2003) at 3. That authority rests instead with the Commissioners Court. Id. The
rule’s silence as to a specific delivery method to provide the privilege means that the
Commissioners Court has “broad discretion” in selecting the method when contracting for this
privilege. See 37 TEX. ADMIN. CODE § 291.1; Anderson, 152 S.W.2d at 1085.
Not only does the Commissioners Court’s contracting authority permit it to select the
method in which inmate telephone privileges are delivered, but doing so is consistent with its jail
authority. See generally TEX. LOC. GOV’T CODE §§ 351.001–.015 (concerning county jail
facilities). “Although the daily operation of the county jail is vested with the sheriff, the
commissioners’ court does have general responsibilities in connection with the operation of the
jail.” Pugh v. Rockwall Cnty., No. Civ.A. 3:98CV2142P, 2000 WL 351389, at *7 (N.D. Tex.
Mar. 10, 2000) (mem. op.). Commissioners courts are responsible for providing “safe and suitable
jails for the county,” TEX. LOC. GOV’T CODE § 351.001(a), that must meet various requirements,
see generally id. §§ 351.002–.015. Part of this responsibility extends to providing a jail that
complies with the Commission’s inmate telephone rule. Id. § 351.002; Pugh, 2000 WL 351389, at
*7 (“The commissioners’ court must ensure that the jails within its county conform to the
[Commission’s] standards.”). Again, the rule requires telephone privileges meeting various
requirements be provided to inmates but does not dictate a specific method to deliver this privilege.
See 37 TEX. ADMIN. CODE § 291.1. Instead, the delivery method falls within the Commissioners
Court’s “broad discretion.” See Tex. Att’y Gen. Op. No. GA-1041 (2014) at 2 (noting that “the
counties have ‘broad discretion to accomplish [the] purpose’” of providing inmate telephone
privileges (quoting Anderson, 152 S.W.2d at 1085)). Thus, the Commissioners Court’s authority
to provide safe and suitable jails includes selecting the delivery method of those privileges.
Accordingly, the Commissioners Court may reinstate the PIN debit system, through its
contracting and jail authority, so long as the chosen delivery method complies with the
Commission’s rule requirements regarding telephone privileges. 5

5
Though beyond the scope of this opinion, we note that federal regulations—like those promulgated by the
Federal Communications Commission, which are currently subject to pending litigation—may impose additional
requirements that affect the amount of revenue generated from inmate telephone privileges offered in county jails.
See, e.g., 47 C.F.R. §§ 64.6010 (concerning “Incarcerated People’s Communications Service rate caps” for interstate,
intrastate, and international audio services), .6030 (concerning “Inmate Calling Services Interim Rate Caps” for
interstate calls); see also, e.g., Tex. Att’y Gen. Op. No. GA-1041 (2014) at 2–3 (recognizing FCC rate caps may apply
to county jail telephone services).
Mr. Steven Daughety - Page 6

S U M M A R Y

Revenue from phone cards sales derived from the exercise
of inmate telephone privileges provided under the Texas
Commission on Jail Standards’ rule concerning inmate telephone
plans must be deposited in the county’s general fund. Revenue
derived from the purchase of phone cards as a jail commissary item,
bearing no correlation to the provision of inmate telephone
privileges, are commissary funds under the exclusive control of the
sheriff. It follows that phone card revenue must be deposited in the
general fund where the ordering, fulfillment, and fund allocation of
phone cards are separate from the commissary operation. The
separate treatment of inmate commissary and telephone privileges
could result in a situation where some telephone service or item is
offered under both privileges.

The Cherokee County Commissioners Court may reinstate
the PIN debit system, through its contracting and jail authority, so
long as the chosen method complies with the requirements in the
Commission’s rule concerning inmate telephone privileges.

Very truly yours,
f
KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

JOSHUA C. FIVESON
Chair, Opinion Committee

AMANDA K. ROMENESKO
Assistant Attorney General, Opinion Committee