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