.THEATTORNEYGENERAL
OF %-ICXAS
The Honorable Chet Brooks, Chairman Opinion No. H-610
Joint Committee on Priaon Reform
Senate Chamber Re: Purposes for which the
Auetin, Texas 78711 Department of Corrections
may expend moneys from the
Educational 61 Recreational
Fund.
Dear Senator Brooks:
You have requested our opinion regarding the purposes for which
the Department of Corrections may expend moneys from the “Educational
and Recreational Fund. ”
The Educational and Recreational Fund has been recognized in
every eneral appropriations act since 1957. Acts, 55th Leg., R. S. ,
1957. e h. 385. at 1049. The Department of Corrections appropriation
for the current biennium contains the following provision:
All receipts from the operation of the prison
unit commissaries, prison-sponsored recreation-
al shows and entertainment, all gifts and other
income for inmate welfare accruing together with
balances at the beginning of each year of the
biennium beginning September 1, 1973, and
deposited in the local Educational and Recreational
Fund, are hereby appropriated to the Department of
Corrections subject to the following provisions:
A. Salaries of personnel employed out of
the Educational and Recreational Fund need
not conform with the provisions of the
Classification Plan.
b. ?sudn tunh s’tifl’be expenheh o&y tiiLn
the advance, written approval of the Board
of Corrections.
Acts. 63rd Leg., R. S., 1973, Ch. 659, at 1947-48. The precise
language of this rider has appeared in every general appropriations act
since 1965. See
- -, Acts 5.9th Leg., R.S., 1965, ch. 720 at 1767-68.
p. 2701
1 w
The Honorable Chet Brooks - Page 2 (H-610)
In 1938, the Attorney General was asked if money collected in the
Educational and Recreational Fund could be spent to acquire land near the
penitentiary in Huntsville to be used as an athletic field and “deeded to the
Prison Board as trustees for the Fund”. The fund was described as “a
local fund . . . raised through receipts from admissions to the various
entertainments staged by the prisoners, and . . . to the Walls at Huntsville,
and through the profits derived from the operation of commissaries. . . from
which prisoners can make purchases. . . . [It is] not derived in any manner
through appropriations, is administered for the benefit of the inmates. . .
and is under the control of the Prison Board. ” In an Opinion dated March 15,
1938 and found in Book 380 at page 887 of the Attorney General’s Letter
Opinion Collection, H. L. Williford, Assistant Attorney General, advised
then Chairman of the Prison Board Joseph Wearden:
If the terms, conditions, and requirements of
your duties and powers with respect to the
management of such fund are discretionary, and
I think they are, you probably have power to use
such fund for the benefit of the convicts, and your
discretion as trustees is the only limitation placed
upon your power to manage such fund. I see no reason
why you could not purchase the land for the benefit of
the prisoners.
. . * .
. . . the trustees of such fund can probably invest the
same for the benefit of the convicts in the manner above
stated in the absence of any express statutory prohibi-
tion, if same is consistent with the proper management
of the State Prison System.
In 1963, Dr. George Beto, then Director of the Texas Department of
Corrections made a request which resulted in Attorney General Opinion
C-133 (1963) about the propriety of accepting certain advertising for the
Annual Prison Rodeo souvenir program. In making the request, Dr.
Beto explained that the net receipts from the rodeo were used for various
rehabilitative services such as education, vocational education, religion,
recreation, welfare, etc.
p. 2702
The Honorahle Chet Brooks - Page 3 (H-610)
In connection with your request, we have been advised by the
present Director of the Department of Corrections, W. J. Estelle, Jr.,
that the Texas Board of Corrections, acting as a Board of Trustees, is
responsible for the control and supervision of the Educational and Recre-
ational Fund, that the fund was created to receive the proceeds from the
operation of the commissaries, the Prison Rodeo, and minor income-
producing activities, and that all income of the fund is dedicated to the
general health, educational and recreational welfare of inmates. Although
we have been furnished no trust indenture and have not found any general
statutory authority (but see,, Education Code $ 2.9. 03) for the establish-
ment or collection of fund by the Texas Board of Corrections, the
long-established and consistent characterization of the fund as a trust
fund and its tacit recognition as such by the Legislature since at least
1957, convinces us that it should be treated as such. Daniel v. Rich-
creek, 146 S. W. 2d 206 (Tex. Civ. App. -- Austin 1940, writ dism.,
judg.corr. ); Turle y v. Tobin, 7 S. W. 2d 949 (Tex. Civ. App. --
Austin 1928, writ refused); Gmohundro v. Matthews, 341 S. W. 2d 401
(Tex. Sup. 1960). We think a confidential, fiduciary relationship exists
between the Board of Corrections and the prisoners committed to its
care with respect to the disposition of labor and property (and the
fruits thereof) donated to the fund. See V. T. C. S. art. 6166~. See
Attorney General Opinion H-543:(197r The quoted provisions ofhe
General Appropriations Act do not appear to be inconsistent with the
purposes of the trust.
You are therefore advised that, insofar as we can ascertain,
the Texas Board of Corrections, can invest the fund, or spend it, for
the benefit of the prisoners in any manner consistent with the purposes
of the trust, the proper management of the prison system, and the
statutes of this state. 11 Tex. Jur. 2d, Charities $11, et seq.; see
V. T.C.S. art. 6166a, et seq. You have asked whether certain specific
uses of the funds are permissible, but the proper determination of such
matters involves fact questions which we cannot resolve.
SUMMARY
The Educational and Recreational Fund, which is
administered for the benefit of the prisoners. may be
invested or spent for the prisoners’ benefit in any manner
consistent with the purposes of the trust, the proper
management of the prison system, and the statutes of
this state.
Attorney General of Texas
p. 2703
The HonorablC Chet Brooks - Page 3 (~-610)
Opinion Committee
jwb
p. 2704