B-165138, OCTOBER 29, 1968, 48 COMP. GEN. 249
Highlights
PRISON OFFICIALS HAVE NO RIGHT TO WITHDRAW TRUST FUNDS WITHOUT THE INMATES SIGNED APPROVAL. REQUESTED OUR DECISION AS TO WHETHER THE FEDERAL GOVERNMENT IS DENIED THE RIGHT OF SETOFF AGAINST FEDERAL PRISONERS' TRUST FUNDS WITHOUT THE PRISONERS' CONSENT. THE GOVERNMENT IS TRUSTEE OF THE FUNDS AS PROVIDED IN 31 U.S.C. 725S. INASMUCH AS 31 U.S.C. 725S PROVIDES THAT THE FUNDS ARE TO BE DISBURSED IN COMPLIANCE WITH THE TERMS OF THE TRUST AND ONE OF THE TERMS REQUIRES THE PRISONER'S CONSENT TO ANY DISBURSEMENT. THE DEPARTMENT OF JUSTICE HAS RULED ON SEVERAL OCCASIONS THAT UNDER THE TERMS OF THE TRUST CONTRACT WITH PRISONERS THE PRISON OFFICIALS HAVE NO RIGHT TO WITHDRAW THE FUNDS WITHOUT THE INMATE'S SIGNED APPROVAL.
B-165138, OCTOBER 29, 1968, 48 COMP. GEN. 249
PRISONS AND PRISONERS - TRUST FUNDS - WITHDRAWAL SINCE UNDER TRUST CONTRACTS WITH PRISONERS, PRISON OFFICIALS HAVE NO RIGHT TO WITHDRAW TRUST FUNDS WITHOUT THE INMATES SIGNED APPROVAL, EVEN ON COURT ORDERS, ATTACHMENTS, LIENS OR OTHER LEGAL PROCESS FOR THE SATISFACTION OF CLAIMS, THE COMMISSARY MANAGEMENT MANUAL OF THE BUREAU OF PRISONS MAY BE REVISED TO PREVENT THE DISBURSEMENT OF FUNDS WITHOUT THE PRISONERS' CONSENT TO SATISFY THE CLAIMS OF THE GOVERNMENT FOR WILLFUL DESTRUCTION OF ITS PROPERTY. B-72468, APRIL 21, 1948, OVERRULED.
TO THE ATTORNEY GENERAL, OCTOBER 29, 1968:
BY LETTER OF AUGUST 23, 1968, THE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, REQUESTED OUR DECISION AS TO WHETHER THE FEDERAL GOVERNMENT IS DENIED THE RIGHT OF SETOFF AGAINST FEDERAL PRISONERS' TRUST FUNDS WITHOUT THE PRISONERS' CONSENT. THE GOVERNMENT IS TRUSTEE OF THE FUNDS AS PROVIDED IN 31 U.S.C. 725S.
A SPECIFIC CASE NOW BEFORE THE WARDEN OF THE UNITED STATES PENITENTIARY, LEAVENWORTH, KANSAS, CONCERNS THE RESPONSIBILITY OF THE WARDEN TO WITHDRAW FROM AN INMATE'S TRUST FUND ACCOUNT WITHOUT THE INMATE'S CONSENT AN AMOUNT OF MONEY ORDERED BY A WRIT OF EXECUTION IN SATISFACTION OF A COURT JUDGMENT AGAINST THE INMATE. THE ASSISTANT ATTORNEY GENERAL QUESTIONS THE GOVERNMENT'S RIGHT OF SETOFF AGAINST PRISONERS' TRUST FUNDS IN ANY CASE, INASMUCH AS 31 U.S.C. 725S PROVIDES THAT THE FUNDS ARE TO BE DISBURSED IN COMPLIANCE WITH THE TERMS OF THE TRUST AND ONE OF THE TERMS REQUIRES THE PRISONER'S CONSENT TO ANY DISBURSEMENT. THE DEPARTMENT OF JUSTICE HAS RULED ON SEVERAL OCCASIONS THAT UNDER THE TERMS OF THE TRUST CONTRACT WITH PRISONERS THE PRISON OFFICIALS HAVE NO RIGHT TO WITHDRAW THE FUNDS WITHOUT THE INMATE'S SIGNED APPROVAL, EVEN ON COURT ORDERS, ATTACHMENTS, LIENS OR APPARENTLY ANY OTHER LEGAL PROCESS FOR THE SATISFACTION OF CLAIMS.
THE ASSISTANT ATTORNEY GENERAL STATES THAT ONE EXCEPTION TO THIS GENERAL RULE IS THE ALLOWANCE OF SETOFF TO SATISFY CLAIMS OF THE UNITED STATES ARISING FROM WILLFUL DESTRUCTION OF GOVERNMENT PROPERTY BY INMATES WHILE INCARCERATED. THE EXCEPTION IS BASED ON A DECISION OF OUR OFFICE, B- 72968, APRIL 21, 1948, AND IS NOW INCORPORATED IN CHAPTER II, PARAGRAPH 23C OF THE COMMISSARY MANAGEMENT MANUAL, BUREAU OF PRISONS. THE BUREAU OF PRISONS NOW CONSIDERS THE EXCEPTION INCONSISTENT WITH THE GENERAL RULE WHICH DENIES SETOFF.
IN B-72968, WE HELD THAT THE GOVERNMENT'S RIGHT OF SETOFF WAS APPLICABLE TO PRISONERS' FUNDS. HOWEVER, IS SO RULING WE WERE NOT AWARE OF THE FACT THAT WITHDRAWAL OF THE FUNDS WITHOUT THE CONSENT OF THE PRISONER WAS CONTRARY TO THE TERMS OF THE TRUST.
WE BELIEVE THAT THE DEPARTMENT OF JUSTICE HAS A SOUND LEGAL BASIS FOR DENYING SETOFF AGAINST PRISONERS' TRUST FUNDS ESTABLISHED UNDER 31 U.S.C. 725S WHEN SETOFF WOULD BE CONTRARY TO THE TERMS OF THE TRUST. WE HAVE NO OBJECTION TO A REVISION OF THE COMMISSARY MANAGEMENT MANUAL WHICH WOULD PREVENT THE DISBURSEMENT OF FUNDS WITHOUT THE PRISONERS' CONSENT TO SATISFY THE CLAIMS OF THE GOVERNMENT FOR WILLFUL DESTRUCTION OF ITS PROPERTY. ACCORDINGLY, B-72968 SHOULD NO LONGER BE CONSIDERED APPLICABLE TO THESE CASES UNLESS SPECIFIC PROVISIONS ARE INCLUDED IN THE TERMS OF THE TRUST TO PERMIT WITHDRAWAL OF THE FUNDS WITHOUT THE CONSENT OF THE PRISONER.