December 12, 1990
Mr. Jack E. Crump Opinion No. JM-1260
Executive Director
Texas Commission on Re: Whether minimum jail standards
Jail Standards established by section 511 of the
P. 0. Box 12985 Government Code are applicable to
Austin, Texas 78711 jails operated for a municipality
by a private entity (RQ-2069)
Dear Mr. Crump:
You ask whether minimum jail standards adopted by the
Texas Commission on Jail Standards pursuant to section
511.009 of the Government Code are applicable to jails
operated for a municipality by a private entity. You ask:
Do Minimum Jail Standards developed as a
requirement of Section [511.009] apply to
jails . . . operated by a private entity for
a municipality?
Do requirements to provide consultation and
technical assistance, review of plans, and
inspection apply to these facilities?
Does this statute apply to those facilities
already in existence [that] are operated by a
private vendor for a municipality?
Section 361.061 of the Local Government Code, formerly
codified as article 5115e(a), V.T.C.S., provides that the
governing body of a municipality may contract with 'Ia
private vendor or a county" for the operation and mainte-
nance of a jail.
Section 361.062 of the Local Government Code, formerly
codified as article 5115e(b), sets out the conditions that
must be included in such a contract. Subsection (1) of
section 361.062 states:
A contract made under this subchapter must:
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Mr. Jack E. Crump - Page 2 (JM-1260)
(1) require the private vendor or county
to operate the facility in compliance with
minimum standards of construction, equipment,
maintenance, and operation of jails adopted
by the Commission on Jail Standards and
receive and retain a certification of compli-
ance from the commission.
Your concern is prompted by the provisions of section
511.009 of the Government Code authorizing the commission to
adopt reasonable standards for the operation of county
jails. Because section 511.009 refers only to the commis-
sion's power to adopt standards for countv iails, YOU
question whether this rulemaking authority is extended to
municipal jails operated by a private entity under section
361.061.
Section 511.009 is a nonsubstantive recodification of
article 5115.1, V.T.C.S., originally enacted in 1975. H.B.
272, Acts 1975, 64th Leg., ch. 480, at 1278. Section
511.009 sets forth the general duties of the commission:
(a) The commission shall:
(1) adopt reasonable rules and pro-
cedures establishing minimum standards for
the construction, equipment, maintenance, and
operation of the county jails:
(2) adopt reasonable rules and pro-
cedures establishing minimum standards for
the custody, care, and treatment of prison-
ers ;
(3) adopt reasonable rules establishing
minimum standards for the number of jail
supervisory personnel and for programs and
services to meet the needs of prisoners:
(4) adopt reasonable rules and proce-
dures establishing minimum requirements for
programs of rehabilitation, education, and
recreation in county jails:
(5) revise, amend, or change rules and
procedures if necessary:
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Mr. Jack E. CNmp - Page 3 (JM-1260)
(6) provide to local government offi-
cials consultation on and technical assis-
tance for county jails:
(7) review and comment on plans for the
construction and major modification or
renovation of county jails;
(8) require that the sheriff and
commissioners of each county submit to the
commission, on a form prescribed by the
commission, an annual report on the condi-
tions in each county jail within their
jurisdiction, including all information
necessary to determine compliance with state
law, commission orders, and the rules adopted
under this chapter:
(9) review the reports submitted under
Subdivision (8) and require commission
employees to inspect county jails regularly
to ensure compliance with state law, commis-
sion orders, and rules and procedures adopted
under this chapter: and
(10) at least annually determine
whether each county jail is in compliance
with the rules and procedures adopted under
this chapter.
(b) A commission rule or procedure is not
unreasonable because compliance with the rule
or procedure requires major modification or
renovation of an existing jail or construc-
tion of a new jail.
Gov't Code 0 511.009.1
1. Subsection 9A was added by S.B. 289, Acts 1989,
71s.t Leg., ch. 20, at 297, to article 5115.1, V.T.C.S.,
without reference to its repeal and recodification as
section 511.009 of the Government Code. Subsection 9A
provides:
(a) On the request of a sheriff, the commission shall
(Footnote Continued)
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Mr. Jack E. Crump - Page 4 (JM-1260)
The legislature has by the express provisions of
section 361.062 evidenced its intent that the Commission on
Jail Standards' responsibility be enlarged to include
private vendors and counties operating a jail for a munici-
pality. Section 361.062 is the later enactment of the
legislature and we believe both statutes must be construed
together in order to give effect to the intent of the
legislature. See Gov't Code 5 311.025. In construing a
statute the courts may consider the consequences of a
particular construction. Section 361.061 allows munici-
palities to contract with a county as well as a private
vendor for the operation of a jail. To conclude that a
county operated municipal jail facility is subject to rules
of the commission while a municipal facility operated by a
private vendor is excepted from regulation would produce an
illogical result as well as create confusion in the adminis-
tration of the act.2
(Footnote Continued)
inspect a facility to determine whether there are
areas in the facility in which fire sprinkler heads
should not be placed as a fire prevention measure. In
making a decision under this section, the commission
shall consider:
(1) the numbers and types of inmates having
access to the area;
(2) the likelihood that an inmate will attempt
to vandalize the fire sprinkler system or commit
suicide by hanging from a sprinkler head: and
(3) the suitability of other types of fire
prevention and smoke dispersal devices available for
use in the area.
(b) If the commission determines that fire sprinkler
heads should not be placed in a particular area within
a facility, neither a county fire marshal nor a
municipal officer charged with enforcing ordinances
related to fire safety may require the sheriff to
install sprinkler heads in that area.
2. Attorney General Opinion MW-328 (1981) concluded
that city jails under contract with counties to hold county
prisoners are considered "county jails" under section
511.001 of the Government Code.
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c
We conclude that the requirements of section 511.009
of the Government Code are applicable insofar as they come
within the requirements of subsection (1) of section 361.062
of the Local Government Code that requires the operation of
the facility "in compliance with the minimum standards of
construction, equipment, maintenance, and operation of jails
adopted by the Commission on Jail Standards and [that the
facility] receive and retain a certification of compliance
from the commission."
Your second question is whether requirements to provide
consultation and technical assistance, review of plans, and
inspection apply to these facilities. We believe the re-
quirements stated by section 361.062 of the Local Government
Code for a contract entered into between a municipality and
a private vendor under that provision are sufficiently broad
to include the requirements that you ask about.
Your third question is whether section 361.062 of the
Local Government Code makes the section 511.009 of the Gov-
ernment Code requirements applicable to those facilities
already in existence operated by a private vendor for a
municipality. Former article 5115e(b), V.T.C.S., recodified
as section 361.062 of the Local Government Code, was adopted
in 1987 with an effective date of August 3, 1987. H.B. 85,
Acts 1987, 70th Leg., 2d C.S., ch. 35, at 123. A statute is
presumed to be prospective in its operation unless expressl:.-
made retrospective. Gov't Code § 311.022. The statute
also negates retrospective operation in that it applies t3
"contracts entered into under this article." We conclude
that the provisions of section 361.062 of the Local Govern-
ment Code are applicable to those facilities already ir.
existence, so long as the contract between the municipalit)
and a private vendor for the operation of the jail was
entered into on or after the statute‘s effective date of
August 3, 1987.
SUMMARY
Minimum jail standards adopted by the
Texas Commission on Jail Standards are
applicable to jails operated by a private
vendor for a municipality insofar as they
come within the requirements of section
361.062 of the Local Government Code that
require the operation of the facility I1
in
compliance with the minimum standards of
construction, equipment, maintenance, and
operation of jails adopted by the Commission
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c
on Jail Standards and receive and retain a
certification of compliance from the
commission." Requirements that the commis-
sion provide consultation and technical as-
sistance, review of plans, and inspection
apply to jails operated by a private vendor
for a municipality. The provisions of sec-
tion 361.062 of the Local Government Code are
applicable to jails operated by a private
vendor, so long as the contract between the
municipality and the private vendor for the
operation of the jail was entered into on or
after August 3, 1987, the effective date of
the prior codification of section 361.062.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
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