Untitled Texas Attorney General Opinion

The Attorney General of Texas March 8, 1983 JIM MATTOX Attorney General Mr. Don R. Stiles Opinion No. JM-3 Supreme Court Buildin Executive Director P. 0. BOX 1254S Texas Adult Probation Commission Re: Whether a district adult Austin. TX. 78711.2S4S P. 0. Box 12427 probation department mey use 5121475-2501 Telex 91om74.12a7 Austin, Texas 78711 judicial district funds to Telecopier 512l47502SS purchase real property to use as a colnunity based correc- tional facility 1607 Main Sl.. Suite 14Ul oallrr. TX. 7sM1-4709 21417424944 Dear Mr. Stiles: You have asked these questions: 4824 Alberla Ave.. Suite 160 El Paso. TX. 799052793 “‘533-3484 1. Can a district adult probation department utilize judicial district funds to purchase land and/or buildings for use by the department as a 1220 Oallas Ave.. Suite 202 c-nity based correctional facility other than a Houston. TX. 7700269SS jail or prison? If the ansver is yes. who would 7 13mio.0666 hold title to the ,land and/or building? 606 Bromluay. Suite 312 2. Can a district adult probation department Lubbock. TX. 79401.3479 utilize judicial district funds to build a 8061747~5238 building, or to purchase and place a manufactured ! building, either mobile or fixed and attached to a 4309 N. Tanlh. Suite 6 foundation, upon land leased from a county, McAllan. TX. 7&W-105 private citizen. company or corporation to be used 5121682.4547 by the department as a colPunity based correctional facility other than a jail or prison? 200 Main Plaza. Suite 409 If the answer is yes. who would hold title to the San Antonio. TX. 762052797 building? 512122s.4191 You have Informed us that the term “judicial district funds” refers to the “stnte aid” which is authorized by article 42.121 of the Code of Criminal Procedure. Article 42.12 of the Code of Criminal Procedure created adult probation departments in the judicial districts of this state. Sec. 10(a). Section 10(g) of article 42.12 provides in pertinent part: It shall be the responsibility of the county or counties comprising the judicial district or P. 7 Mr. Don R. Stil~es- Page 2 (JM-3) geographical area served by such district probation department to provide physical facilities. equipment, and utilities for an effective and professional adult probation -and adult colPmunity-based correctional service. (Emphasis added). In Attorney General Opinion H-1218 (1978). this office construed this provision. vhich at that time was part of section 10(f) of article 42.12, in the following manner: In our oDinion. this Droviaion reauirea the counties to provide. from-their own funds and not from probation fees. 1:he physical facilities, equipment. and utilities need;ed for the probation office. All other expenses 5re to be paid from district funds. which include Drobation fees. Testimony before a legislative comktee indicated that Senate Bill No. 39 made the county responsible for facilities, utilities, and eauiDment. while the state was to be resDonsible for 'salaries. benefits. supplies, travel. and training. Tape of public hearing on S.B. 39, House Criminal Jurisprudence Comittee. March 29. 1977. See also Joint Advisory Committee on Governmental Operations - Subcomittee on Corrections, supre. (Emphasis added). See also Attorney General Opinion Mw-92 (1979). This opinion technically dealt only with the responsibility of the counties vis-a-vis "probation offices," but its reasoning is equally applicable to an "adult community-baaed correctional service." since this term is contained in the same portion of section 10(g) that refers to a "probation" service. Accordingly, we believe that section 10(g) imposes upon the counties which comprise "the judicial district or geographical area served by such district probation department" the responsibility of providing, inter alia, the "physical facilities" which are necessary for an "effective and professional . . . adult community-baaed correctional service." 1n our opinion, buildings needed to house comnity-b5sed correctional progra5raand services and the land upon which these buildings are situated constitute "physical facilities" within the meaning of section 10(g). It therefore follows that the responsibility for providing them rests with the county or counties to which section 10(g) refers. As we read your correspondence to this office, you essentially achnowledge thet the counties are responsible for providing "physical facilities" for an effective adult cormnunity-based correctional service. You contend, however, that state-aid furnished to judicial P. 8 I. . . Mr. Don R. Stiles - Page 3 (JM-3) districts under article 42.121 may also be used to establish such a facility. Admittedly. there is language in this article which can be read as supporting this conclusion. In our opinion. however. the legislature did not intend this language to be construed this broadly. Section 1.01 of article 42.121 provides: The purposes of this article are to make probation services available throughout the state, to improve the effectiveness of probation services. to provide alternatives to incarceration by providing financial aid to judicial districts for the establishment and improvement of probation services and cormsunity-basedcorrectional programs and facilities other than jails or prisons. and to establish uniform probation administration standards. (Pmphasis added). -See 14.01 (definition of "state-aid"). Section 4.03 provides: The district judge or judges in each judicial district shall present data to the commission. determined by the cotiasion, which is necessary to determine the amount of state financial aid needed for use in maintaining and improving probation aervicaa and community-based correctional programs and facilities other than jails or prisons in the district. Section 4.05 provides in part: (b) The fiscal officer designated for the district shall deposit all state-aid received under this article in a special fund of the county treasury, to be used solely for the provision of adult probation services and community-based correctional programs and facilities other than jails or prisons. You suggest that authority for adult probation departments to use state-aid for the purposes which you described in your questions can be found in the foregoing provisiona. which authorize the use of such aid for. inter alla. the "establishment" of community-based correctional "facilities." As noted, however, we disagree. We first note that the legislative history of article 42.121 suggests that the legislature did not Intend "state-aid" to be used to provide "physi~cal facilities" in which to house community-based correctional services and programs. -See Code Construction Act. P. 9 Mr. Don R. Stiles - Page 4 (JM-3) V.T.C.S. art. 5429b-2. §3.03(3) (legislative history may be considered in construing code provision). In testimony on the proposed statute before the House Committee on Criminal Jurisprudence, a representative of the Texas Correctional Association stated: The [Adult Probation Commisaionl would he a standard-setting agency that would subsidize probation services in each judicial district and each judicial district would maintain its autonomy. All judicial districts would have adequate probation services for the supervision and control of felons and misdemeananta. The county'a reaponaibflity would be to provide facilities. equipment, and utilities. while state aid would provide salaries, benefits, supplies, mileage for travel, training, etc. This effort parallels to a great degree the functions of the Texas Education Agency as it relates to the standard-setting agency and the distribution of funds while having local control and autonomy with the local district. (Emphasis added). Tape of public hearing on S.B. No. 39. supra. This testimony indicates that the legislature's intent in enacting articles 42.12 and 42.121 was to assign to both the counties and the state (acting through the Adult Probation Commission and, in turn, the judicial districts) certain specific responaibllitiea connected with the provision of community-based correctional services. and that the provision of "physical facilities" needed for such services la among the specific responsibilities of the counties. This was, of course. the thrust of Attorney General Opinion H-1218 (1978). We also believe that if the legislature had intended to allow state-aid to be used to build or purchase "physical facilities" for cmnity-baaed correctional programs. it would have provided answers to the many questions which would arise from this practice, &. (1) may a probation department use state-aid to purchase land or buildings at any time. or must it wait until a county certifies that it la unable to provide necessary "physical facilities"? (2) if a judicial district may make such purchases. in whose name would title be held? The fact that article 42.121 in no way addreaaea these issues persuades us that its provisions should not be interpreted as broadly as you suggest. In this context, we also note that although section 1.01 does contain language which arguably supports your conclusion, the language of section 4.03 cuts the other way. This provision states that the state-aid for which the judicial districts may apply is that needed for use in "maintaining and improving" probation services and community-based programs and facilities. "Hainteining p. 10 Mr. Don R. Stiles - Page 5 (JM-3) and improvi"g," in our opinion, neither denotes nor connotes "purchasing" or "building." In short, we conclude that the legislature moat likely intended article 42.121 state-aid to be used to establish, maintain, or improve probation and corrmpunity-based correctional programs and services. not to purchase or build "physical facilities" in which to house them. The provision of these facilities is among the specific reaponsi- bilities of the counties. Attorney General Opinion H-1218 (1978). SUMMARY Judicial diatricta are not authorized to use state-aid obtained under article 42.121 of the Code of Criminal Procedure to purchase land or buildings in which to house community-baaed correctional programs and services dzo#& - JIM MATTOX Attorney General of Texas TOM GREEN First Aaaistant Attorney General DAVID R. RICHARDS Executive Aasiatant Attorney General Prepared by Jon Bible Assistant Attorney General APPROVED: OPINION COMMITTEE Susan L. Garrison. Chairman Jon Bible Rick Gilpin David Harris Jim Hoellinger p. 11