THE ATTOKSET GENERAL
OF TEXAS
March 28, 1990
Mr. Fred Toler Opinion No. JR-1152
Executive Director
Texas Commission on Law Re: Status of contract
Enforcement Officer jailers for certain pur-
Standards and Education poses (RQ-1871)
1606 Headway Circle, Suite 100
Austin, Texas 78754
Dear Mr. Toler:
Your questions concern the status of jailers employed
in a jail operated by a private vendor under contract with a
county, and the authority of the Texas Commission on Law
Enforcement Officer Standards and Education to establish
standards for jailers and other jail personnel under section
415.0541 of the Government Code. Section 415.0541 provides:
(a) The commission [Commission on Law
Enforcement Officer Standards and Education]
shall establish minimum physical, mental,
educational, and moral standards for persons
employed or used in the operation of a county
jail.
(b) The commission's authority and power
applies to all county jail personnel. The
commission shall have additional staff to
carry out this section.
(c) Not later than one year after the
date that the commission establishes stan-
dards for county jail personnel, each county
must have all iail oersonnel certified bv the
commission.
(d) A standard requiring a person to have
a degree of formal education or the eguiva-
lent does not apply to a person who was
employed or whose services were used in the
operation of a county jail on August 29,
1977. (Emphasis added.)
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Mr. Fred Toler - Page 2 (JM-1152)
Subchapter F of chapter 351 of the Local Government
Code authorizes counties to contract for privately run jail
facilities. Section 351.101 authorizes the commissioners
court of a county, with the approval of the sheriff of the
county, to contract with a private organization to place
low-risk inmates in a detention center. Section 351.102
provides that the commissioners court may contract with a
private vendor to provide for the maintenance or management
of a jail, detention center, work camp, or related facility.
Section 351.103 requires the private vendor to operate the
facility in compliance with minimum standards adopted by the
Commission on Jail Standards and to receive and retain a
certification of compliance from the commission. Section
351.103 further provides for regular, on-site monitoring by
the sheriff.
You ask the following questions:
1. Are the Subchapter F contract county
jailers, county jailers within the definition
and licensing requirement of Chapter 415,
even though these persons are employed by
private entities as opposed to the sheriff?
2. If these Subchapter F contract county
jailers are not county jailers as defined in
Chapter 415, then are these persons 'other
county jail personnel' within the meaning of
Section 415.0541?
3. The legislative history of Chapter 415,
and its predecessor Article 4413 (29aa)
V.A.C.S. reflects a modification in wording
in that the word certify has been changed to
the word license, throughout Chapter 415.
Therefore, can the word 'certify' in Section
415.0541 be interpreted as authorizing the
Commission to license 'other county jail
personnel?l
4. If the answer to question three is in the
affirmative, then is the Commission autho-
rized to establish pre-licensing standards
and licensing tests for the 'other county
jail personnel,# and as license holders are
these persons subject to the suspension,
revocation and training provisions contained
in Chapter 415?
5. If the answer to question four is in the
negative, then which provisions of Chapter
415 apply to these persons?
P. 6082
Mr. Fred Toler - Page 3 (JM-1152)
6. Was it the legislative intent that the
phrase *for persons employed or used in the
operations of a county jail' be interpreted
to apply to only those persons who are not
county jailers as defined in Chapter 415, but
who exercise care, custody, control or super-
vision of inmates; or was it the legislative
intent that the phrase apply to everyone who
is associated with the operations of the
jail, for example: secretaries, medical
personnel and other personnel, who provide
support for the jail operations?
In your first question you ask whether jailers employed
by private vendors under contract with a county come within
the definition and licensing requirements of Chapter 415 of
the Government Code. Subsection (2) of section 415.001 of
the Government Code defines %ounty jailer" to mean 'Ia
person designated as a jailer or guard of a county jail
under section 85.005, Local Government Code." That section
authorizes the sheriff to employ guards.
Contract county jailers do not come within the defini-
tion of county jailer in section 85.005 of the Local Govern-
ment Code since they are employed by the private vendor
operating the facility rather than the sheriff, and they are
not subject to the licensing requirements of chapter 415 of
the Government Code.
In your second question you ask whether contract county
jailers are other county jail personnel within the meaning
of section ,415.0541. Section 511.0011 of the Government
Code, formerly article 5115.1, V.T.C.S., defines "county
jail" as 'Ia facility operated by or for a county for the
confinement of persons accused or convicted of an offense."
Attorney General Opinion WW-328 (1981) concluded that
"a city jail holding county prisoners pursuant to contract
thereby becomes a county jail for the purposes of article
5115.1, V.T.C.S. (now section 511.0011), so that its em-
ployees are required to be certified by the Texas Commission
on Law Enforcement Officer Standards and Education." Since
a contract county jailer is a person employed or used in the
operation of a l@county jail," as that term is defined in
section 511.001, the commission has authority to "establish
minimum physical, mental, educational and moral standards"
for the certification of a "contract county jailer."
In your third question you ask whether the word
"certify," as used in section 415.0541, may be interpreted
as authorizing the commission to OOlicense'qother county jail
personnel. We do not believe that the term "certify" is
P. 6083
Mr. Fred Toler - Page 4 (JM-1152)
equivalent to "license" used elsewhere in chapter 415. None
of the express licensing provisions apply to other jail
personnel. Section 415.0541 defines the authority the
commission possesses in establishing standards for persons
employed or used in the operation of the jail.
While your fourth question is predicated on our con-
cluding that "certify" means ?License,e we will nevertheless
address the matter of establishment of standards for "other
jail personnel." The intent of the Legislature to establish
standards for personnel other than jailers is evidenced by
language employed in section 415.0541. Subsections (a) and
(b) provide that the commission establish standards for
"persons employed or used in the operation of the jail" and
the llcommission's authority and power applies to all county
jail personnel." Subsection (c) expressly provides each
county must "have all jail personnel certified by the
commission." Subsection (b) states that "the commission
shall have additional staff to carry out this section."
You also ask in your fourth question whether these
persons are subject to the llsuspension, revocation and
training provisions contained in Chapter 415." Section
415.031 provides for licensing and training of officers and
county jailers.1 Section 415.001 defines "officer" as '*a
peace officer or reserve law enforcement officer." We
understand your question to exclude "county jailers" in
referring to "other jail personnel." By their terms, the
provisions relating to training programs for officers and
county jailers are not applicable to "other jail personnel."
Nor do we believe other provisions with respect to suspen-
sion and revocation of licenses contained in section 415.060
to be applicable to "other jail personnel." We conclude
that it was the intent of the Legislature that the commis-
sion establish standards for all the remaining personnel,
pursuant to section 415.0541, without regard to the reguire-
ments of chapter 43.5 relating to an officer and county
jailer.
1. The commission is also charged with the responsi-
bility of licensing public security officers. &g Attorney
General Opinion JM-878 (1988). To come within the defini-
tion of llpublic security officern as that term is defined in
section 415.001 of the Government Code, the person must be
employed as an armed security officer by the state or a
political subdivision. Your question relative to "other
county jail personnel" excludes consideration of public
security officers.
P. 6084
Mr. Fred Toler - Page 5 (JM-1152)
Our disposition of your fourth question is dispositive
of the fifth question relative to "which provisions of
Chapter 415 apply to these persons."
Your sixth question asks whether the provision "for
persons employed or used in the operation of a jail" applies
to persons other than county jailers and persons who
exercise care, custody, control, or supervision of inmates.
As noted in our answer to your fourth question, subsection
(b) of section 415.0541 expressly provides that the com-
mission's authority "applies to all county jail personnel."
llpersonnelllis defined in Oxford American Dictionary 498
(1980) as "the body of people employed in any work, staff."
We believe that it was the intent of the Legislature to
include all county jail employees rather than limit the
provision of section 415.0541 to county jailers and persons
who exercise care, custody, control, or supervision of
inmates. .
SUMMARY
Jailers employed in a jail operated by a
private vendor under contract with a county
are not Vounty jailers" as that term is
defined in section 85.005 of the Local
P
Government Code. Contract jailers are other
county jail personnel within the meaning of
section 415.0541 of the Government Code, and
the Texas Commission on Law Enforcement
Officer Standards and Education is authorized
to establish standards for certification of
these jailers in accordance with the pro-
visions of this section. The standards for
certification of contract jailers and all
other jail personnel are contained in section
415.0541. Other provisions in chapter 415
relative to licensing of officers and county
jailers are not applicable. The requirement
that the commission establish standards for
all county jail personnel is not limited to
employees who exercise care, custody, con-
trol, or supervision of inmates.
JIM MATTOX
Attorney General of Texas
P MARY KELLER
First Assistant Attorney General
Pa 6085
Mr. Fred Toler - Page 6 (JM-1152)
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
.
P. 6086