Untitled Texas Attorney General Opinion ( 1991 )

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May 17,1991
Mr. Jack E. Crump Opinion No. DM-24
Executive Director
Texas Commission on Jail Standards Re: Whether detention centers and simi-
P. 0. Box 12985 lar facilities are “jails”for purposes of the
Austin Texas 78711 requirements of Local Government Code
section 351.006(d), (e) regarding single
cell and dormitory space in “county jails,”
and related questions (RQ-2125)
Dear Mr. Crump:
You ask the following questions felative to the authority of the Texas
Commission On Jail Standards under chapter 511 of the Government Code to
establish standards for various types of jail facilities:
Are low risk facilities, county correctional centers,
lock-ups, and detention centers considered jails?
May the Texas Commission on Jail Standards develop
standards for low risk facilities, county correctional centers, and
lock-up facilities?
If so, may these facilities be designed without using the
statutory requirement for jails?
The Commission on Jail Standards is required to establish “minimum
standards for the construction, equipment, maintenance, and operation of county
jails.” Gov’t Code 9 511.009(a)(l).’ You wish to know whether the commission may
establish standards for jail facilities that do not comply with standards for a
minimum percentage of single occupancy cells established for county jails by state
law. Subchapter A of chapter 351 of the Local Government Code, first adopted in
1957, states that the commissioners courts “shall provide safe and suitable jails for
their respective counties” and sets various standards, in addition to the minimum
percentage of single cells, that define safe and suitable jails. Acts 1987, 78th Leg.,
ch. 883, 3 1, at 2979; see, eg, Local Gov’t Code $5 351.004 (structural and
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Honorable Jack E. Cmmp - Page 2 (DM-24)
maintenance requirements), 351.005 (separation of various classes of prisoners),
351.006(a) - (c) (separate ceils, dormitories, and dayrooms; capacities of ceils and
dormitories), 351.007 (space requirements), 351.008 (access to dayroom), 351.009
(safety vestibule), 351.010 (sanitation and health), 351.011, 351.012 (furnishings),
351.013 (bunks). As you have cited in your request only section 351.006(d) and (e),
relating to singie ceIi and dormitory space, we understand your concern to be
focused on those provisions. Accordingly we address here only the applicability of
those provisions to the facilities in question.
Subsections (d) and (e) of section 351.006 of the Local Government Code
state:
(d) A county jail must provide enough one-person cells to
accommodate 30 percent or more of its total designated prisoner
capacity.
(e) A county jail may provide dormitory-type space to
accommodate not more than 40 percent of its total designated
prisoner capacity.
The standards set out in chapter 351 are the minimum standards for county
jails, and each county must comply with those standards and with the rules and
procedures of the Commission on Jail Standards. Locai Gov’t Code Q351.002. If a
jail does not comply with the state laws or the rules, standards, or procedures of the
Jail Standards Commission, the commission must make certain reports and may
ultimately prohibit confinement of prisoners in the jail. Gov’t Code $5 511.011,
511.012.
The commission’s rules for new jail construction, adopted in 1978 under its
authority to estabhsh standards for “county jaiIs,” provide that single cells should in
no event comprise less than 30 percent of the capacity of the facility. 37 T.A.C. $
259.54. Its rules for lock-ups and low-risk faciiitieql aiso adopted in 1978, do not
establish a minimum percentage of single ceiis. Id !N 259.150, 259.238. Your
1A lock-up%haU consist of one. or more. single cells aad may include multiple-occupancy cells,
or dormitories, for the temporary custody of inmates (not to exceed 72 hours) awaiting court
appcaranw or transfer to j& 37 TAC. 0 259.125. A low-risk facility houses inmates acntenced to
work dcasc, school relcasc, or we&end detention, or iamatcs who require minimal supmision. Id.
0 2592a2
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Honorable Jack E. Crump - Page 3 (DM-24)
questions raise. an issue as to the validity of the rules for lock-ups and low-risk
facilities, as well as the commission’s authority to adopt rules for other jail facilities
that do not require single cells for 30 percent of the capacity of the facility.
In our opinion, the commMon’s authority to regulate county jails and to
establish standards for them applies to a wider class of jail facilities than that
described by chapter 351 of the Local Government Code. The commission may in
an appropriate case adopt standards for a jail facility that do not mandate a
minimum of 30 percent single cells.2
The Commission on Jail Standards was created to implement the state policy
that “ah county jail facilities in the state conform to certain minimum standards of
construction, maintenance, and operation.” Acts 1975,Mh Leg, ch. 480, at 1278. It
has authority to promulgate rules establishing minimum standards for the
“construction, equipment, maintenance, and operation of county jails,” and to
enforce its rules and state laws relating to standards for county jails. Gov’t Code 55
511.009,511.011- 511.014. In the act creating the commission, the legislature gave
“cams jail” the following broad definition:
‘county jti means any jai& lockup, or other facility thar is
opemted by or for a cow for the confinement of persons
accused or convicted of an offense.
Acts 1975, 64th Leg., ch. 480, 9 2, at 1279 (emphasis added); see Gov’t Code 9
511.001(2).
This definition of “county jail” encompasses facilities that are not within the
description of “safe and suitable jails” found in chapter 351 of the Local Government
Code. The comparative breadth of the above definition can be seen by examming
the statutory description of “safe and suitable jail.” The language shows that the
“safe and suitable jail” is built and operated by the county. A county that contracts
~rcLtionsbipbetween~pterSlldiheOovuMlentCodcmdchapter351oftheLoeal
Govcmmeti Code ia ~~OWB more ddy by the bmgua@ that &ted prior to the non-substantive
moditication than that io the coda We will therefore rely to some caent on the hguqe d the 1975
enactment that eatablishcd the Commission on Jail Standrrds and also reenaced the provkions on the
duty of the commissioners courts to establish safe and suitable jails. See Acts 1975,64tb Leg., C!L480,
atm3.
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Honorable Jack E. Crump - Page 4 (DM-24)
wltb another county whose jail is in compliance is exempted from the requirements
of the statute. Thus, the term “safe and suitable jails” does not include jails
operated “for”the county. Moreover, the legislation contemplates that the county
would have one all-purpose jail, as indicated by the use of the singular to refer to
‘jail”in the following quotation:
l’Tjhe term ‘safe and suitable’ jails shall be construed to mean
jails either now or hereafter constructed, except that, in lieu of
maintaining its own $17, any county whose population is not
large enough to justify building a new juil or remodeling its old
jail shall be exempt from the provisions of this Act by
contracting with the nearest available county whose jail meets
the requirements set forth in this Act.
Acts 1975,64th Leg., ch. 480.9 15, at -1283(emphasis added); see Local Gov’t Code
$3 351.001,351.003.3
The detailed provision on safety vestibules also indicates that chapter 351
relates to a traditional county jail, and does not contemplate alternative incarcera-
tion facilities such as a low-risk facility. Acts 1975,64th Leg., ch. 480, at 1284; Local
Gov’t Code 0 351.009.
It is well established that the Commission on Jail Standards has authority to
regulate facilities that would not be within the provisions of chapter 351. Previous
attorney general opinions have consistently ruled that the provisions now in
Government Code section 511.009 directing the commission to establish minimum
standards for “county jails” encompass any facilities used by a county for holding
county prisoners. See Attorney General Gpinions JM-272 (1984) (state-line justice
%&ion 351.001 of the Local Government Code was amended in 1959 by the addition of
subsection (b):
(b) The jails @ovided by the commissioners court] must be located at
thewunty~~thccountyharwlyoncjaiSinwhieheascthejailmaybc
located onywhcre in the county at the discretion of the commissioners court.
Acta 1989,71st Leg., ch. 1,s 64(e), at 70.
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Honorable Jack E. Grump - Page 5 (DM-24)
centers); MW-559 (1982) (holdi.ng cells in county facilities separate and distinct
from the couuty jail); see also Attorney General Gpiions JM-1260 (1990); MW-328
(1981) (city jail holding county prisoners under contract).
If particular jail facilides are not within chapter 351, they are necessar& not
subject to the requirements for single cells and dormitory space found in section
351.006(d) and (e) of the Local Government Code. The commission, in adopting
standards for such ancillary facilities, has discretion to impose these requirements by
rule.
By referring to “lockups” and to other jail facilities in the act creating the
commission, the legislature has recognized counties’ authority to establish more
than one kind of detention facility. The legislature also recognized that Texas
counties might differ as to the kind of jail facilities they needed, and authorized the
commission to grant variances from state law to county jails. Gov’t Code 3 511.012.
The estabqent of the Commission on Jail Standards allowed for a degree of
flexiiility that the provisions for safe and secure jails did not allow.4 The language
of the statute establishing the Commission on Jail Standards as well as the policies
underlying the statute persuade us that the commission has. authority to adopt
reasonable standards for ancillary jail facilities that do not incorporate the
requirements of section 351.006(d) and (e). The reasonableness of standards
developed for particular ancillary jail facilities must be determined on a case-by-
case basis.
You note that the legislature has in recent years referred in statutes to kinds
of county detention facilities other than “jails.” See Local Gov’t Code g# 351.101
(county “may contract with a private organization to place low-risk county inmates in
a detention facility operated by the organization”), 351.102 (county may contract
with a private vendor to provide for a “jail, detentioncenfer, work camp, or related
facility”) (emphasis added); Acts 1987,7Oth Leg., ch. 18 at 47; Acts 1983,68th Leg.,
~1975~aMappuentlymotintcdio~bytiodioss~Tesreountyjaitwereby~d
largenotineompltnec~ththe~~e~f~orcountyjlibnowsctoutinLocalGovernmentCodc
chapter 3%. iduding the single cd dormitoy rqukments of section 351.006(d) and (e). See Texas
Legislative Council, Statutory Standards and Fwsat Conditions in Texas Jails, Report No. 62-2 (1973)
(201 county jails found not to provide single cells suflicient to accommcdate at least 30 percent of total
de&ad prisoner capacity). Moreover, &fore 1975 no state agency had authority to enforce
c0uBtie.sto comply with such statutory standards. Id at 34.
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Honorable Jack E. Grump - Page 6 (DM-24)
ch. 898, at 50@$ ree a& Local Gov’t Code 00 361.622 (“jai&lock-up,and other
detention facilities” in state&e justice center), 351.181 (coruuy correctional cmters)
(emphasis added); Acts 1989, 7lst Leg., ch 785, 0 3.03, at 3486; Acts 1979, 68th
Leg., ch. 760, at 1878.
We think it is clear that the facilities in question, where they are used by a
county for the confinement of county prisoners, are subject to the authority of the
Commission on Jail Standards. Local Government Code section 351.103(l)
specifically subjects fadlities constructed or operated by a private vendor under
section 351.1(n to commission standards and certification. With respect to “county
correctional centers,” established under Local Government Code sections 351.181 er
seq.,the commission’s authority must be exercised consistently with the provisions of
section 351.184 providing for commission cooperation with the Texas Department of
criminal Justice in adopting standards for certification of those &ilities for
purposes of state funding under Code of Criminal Procedure article 42.13, section
l!(b)(6). The provisions in Local Government Code sections 351.181 et seq., first
adopted in 1989, envision county correctional centers as distinct from the county jail
proper. Acts 1989,71st Leg., ch 785, 9 3.03, at 3486. Section 351.183 authorizes
establishment of such facilities for the housing of persons convicted of
misdemeanors, persons meeting conditions of probation, and persons incarcerated
for violation of conditions of probation; thus, they provide an alternative to
incarceration in a conventional jail for the specified types of prisoners. Since
county correctional facilities are distinct from the county jail proper, they are not
subject to section 351.006(d) and (e).
We conchtde that the county detention facilities you ask about - “low risk”
facilities, %&ups,” “detention centers,” and “county correctional centers” - are
“county jails” for purposes of commission jurisdiction over those facilities under
Government Code chapter 511. The commission has authority, however, to
establish reasonable standards for the design of such ancillary facilities which depart
from the single cell and dormitory requirements for “county jails” in Local
Government Code section 351.006(d) and (e).
SUMMARY
All county facilities used by a county for the confinement of
county prisoners are subject to the jurisdiction of the
Commission on Jail Standards under Government Code chapter
511. The commission has authority to establish reasonable
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Honorable Jack E. Cmmp - Page 7 (DM-24)
standards for the design of county detention facilities ancilhy to
the “county jail” proper that depart from the single cell
dormitory requirements for “county jails” in Local Government
Code section 351.006(d) and (e).
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARYKELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKIXY (Ret.)
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by William Walker and Susan L Garrison
Assistant Attotieys General
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