Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
May 12, 1978
Honorable Jerome Chapman Opinion No. H-1166
Texas Commissioner
State Department of Human Resources Re: Authority of the Depart-
Austin, Texas ment of Human Resources to
license or certify certain juve-
Honorable Henry Wade nile detention facilities under
District Attorney article 695a-3, V.T.C.S.
Sixth Floor, Records Building
Dallas, Texas 75202
Gentlemen:
Mr. Chapman inquires whether the Department of Human Resources has
authority under the Child Care Licensing Act of 1975, V.T.C.S. art. 695a-3, to
license correctional facilities operated by the Texas Youth Council and
county juvenile detention facilities operated pursuant to Title 3 of the Family
Code. He asks whether article 2, section 1 of the Texas Constitution, which
provides for separation of powers, or any statute prevents the licensing of
these facilities. Mr. Wade inquires whether the Dallas County Boys’ Home
established under articles 5138a and 5138b is subject to licensing under the
Child Care Licensing Act.
The purpose of the Child Care Licensing Act is to establish statewide
minimum standards for the safety of children in child care facilities and to
regulate the conditions of such facilities through a licensing program
administered by a division within the Department. V.T.C.S. art. 695a-3, SS 1,
3. “Child care facility” is defined as
a facility providing care, training, education, custody,
treatment, or supervision for a child who is not related
by blood, marriage, or adoption to the owner or
operator of the facility, for all or part of the 24-hour
day. . . .
Section 2(3). “Child caring institution” is defined as
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a child care facility which provides care for more than 12
children for 24 hours a day, including facilities known as
children’s homes, halfway houses, residential treatment
camps, emergency shelters, and training or correctional
schools for children.
Section 2(6). These definitions are certainly broad enough to include juvenile
detention facilities in the coverage of the Act, provided that no other provision of
law requires their exclusion. Facilities operated by the State are exempt from the
licensing requirement, but they must be certified as complying with applicable
provisions of the Act and standards, rules, and regulations promulgated thereunder.
Sections 4(b)(l), 14. Facilities operated by political subdivisions are not exempted
from licensing. See section 2(15); compare Attorney General Opinion H-104 (1973).
Title 3 of the Family Code gives the juvenile court exclusive original
jurisdiction over proceedings relating to delinquent children and children in need of
supervision. Family Code SS 51.01, 51.04. See V.T.C.S. art. 1926a. Section 51.12 of
the Family Code provides for the operatixof facilities used for the temporary
detention of juveniles during proceedings under Title 3 of the Family Code. See
Family Code SS 51.13(c)(l), 54.01. Under article 51.12, the county provides the plz
of detention, but “the juvenile court shall control the conditions and terms of
detention and detention supervision. . . .I’ The juvenile court also certifies the
facility pursuant to the following provision:
(c) In each county, the judge of the juvenile court and
the members of the juvenile board, if there is one, shall
personally inspect the detention facilities at least annually
and shall certify in writing to the authorities responsible for
operating and giving financial support to the facilities that
they are suitable for the detention of children in accordance
with:
(1) the requirements of Subsection (a) of this section
[relating to separation of juvenile and adult offenders1 ;
(2) the requirements of Article 5ll5, Revised Civil
Statutes of Texas, 1925, as amended, defining ‘safe and
suitable jails,’ if the detention facility is a county jail;
and
(3) recognized professional standards for the deten-
tion of children.
Section 51.12 (bracketed material added).. Children may not be placed in a facility
unless it has been certified as suitable for detention.
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In our opinion, section 51.12 provides an independent certification scheme for
the facilities it covers, with its own inspection procedures and standards. Cf.
Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex. Civ. AZ
- Amarillo 1971, writ ref’d n.r.e.1 (responsibility for administering adult probation
placed wholly on courts). If article 695a-3 were construed to apply to the county
juvenile detention institutions referred to in section 51.12, the two provisions would
be brought into conflict. The standards promulgated under article 695a-3 might
differ from those set out in section 51.12; in addition, each provision grants a
different entity the authority to determine whether a place is suitable for children.
These potential conflicts can be avoided by recognizing section 51.12 as a special
provision on certification of the county juvenile detention facilities it describes,
which controls over the general child care licensing statute. See Trinity Universal
Insurance Company v. McLaughlin, 373 S.W.2d 66 (Tex. Civ. AK- Austin 1963, no
writ).
We have found no evidence in the legislative history of an intent to require
dual certification of county juvenile detention facilities maintained pursuant to
article 51.12. The fiscal notes, which estimated the number of institutions that
article 695a-3 would add to the Department’s work load, did not mention such
facilities, even though every county is directed to provide them. In view of our
conclusion that article 695a-3 does not authorize the Department .to license the
facilities certified by the juvenile courts under section 51.12, we need not address
your question about the separation of powers clause.
If the juvenile court judge determines that a child has engaged in delinquent
conduct or conduct indicating a need for supervision, he must hold a disposition
hearing. Family Code SS 54.03, 54.04. After making specified findings at the
disposition hearing, he may place the child on probation in a public or private
institution or commit him to the Texas Youth Council. Family Code S 54.04. The
judge retains power to modify dispositions, except a commitment to the Texas
Youth Council. Family Code S 54.05; McAlpine v. State, 457 S.W.2d 426 (Tex. Civ.
App. - Houston Ilst Dist.] 1970, no writ). We find no Family Code provision
requiring the judge to inspect and certify the institutions in which he places
children following a disposition hearing.
The Dallas County Boys’ Home, about which Mr. Wade inquires, was
established under the authority of article 5136a, V.T.C.S., permitting certain cities
and counties acting jointly to establish and operate homes for dependent and
delinquent youth. A board of managers appointed by the commissioners court has
the general management and control of the home and its inmates. V.T.C.S. art.
5138b, S 1. We are informed that all of the Home’s residents have been determined
by juvenile courts to be dependent and neglected, delinquent, or in need of
supervision. See Family Code SS ll.03, 14.01, 14.02(b), 51.03. It is not used as a
temporary homg facility prior to adjudications by the juvenile court, and the
Dallas County Juvenile Board has not exercised any control over it. The Boys’
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Home is thus not a detention facility operated pursuant to article 51.12 of the
Family Code. We do not find a conflicting inspection system for the Boys’ Home,
nor any statute exempting it from licensing under article 695a-3. ln our opinion, it
is a child care facility subject to licensing under that Act.
The Texas Youth Council administers the State’s correctional facilities for
delinquent children. V.T.C.S. art. 5143d. No separate, conflicting inspection and
certification system is provided for TYC schools; nor do we find any other statute
which might operate to exempt them from certification under article 695a-3.
According to testimony before legislative committees, one purpose of article 695a-
3 was to remove the exemption formerly applicable to public facilities. -See
Attorney General Opinions H-423 (1974), H-104 (1973). The fiscal notes stated that
the bill would add 40 state-operated facilities to the Department’s workload. In
1977, the Legislature considered and rejected an amendment to the Child Care
Licensing Act which would have exempted TYC correctional facilities from its
provisions. S.B. 396, 65th Leg., R.S. In our opinion, institutions operated by the
Texas Youth Council are subject to certification under article 695a-3. Article 2,
section 1 of the Constitution does not prevent their certification by the
Department, since both agencies are in the executive branch. See generally
Attorney General Opinion H-6 (1973).
SUMMARY
Article 695a-3, V.T.C.S., the Child Care Licensing Act,
authorizes the Department of Human Resources to certify
juvenile detention facilities operated by the Texas Youth
Council and to license the Dallas County Boys’ Home
operated pursuant to articles 5138a and 5138b, V.T.C.S. It
does not authorize the Department to license county
detention facilities certified by juvenile courts under section
51.12 of the Family Code.
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&PPROVED:
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DAVID M. KENDALL, First Assistant
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C. ROBERT HEATH, Chairman
Opinion Committee
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