THE ATTORNEY GENERAL
OF TEXAS
September 21, 1989
Honorable Charles 0. Penick Opinion No. JM-log8
Criminal District Attorney
Bastrop County Re: Authority of a commission-
804 Pecan Street ers court to promulgate regula-
Bastrop, Texas 78602 tions regarding smoking in the
county jail, and related gues-
tions (RQ-1752)
Dear Mr. Penick:
You advise that the commissioners court is building a
new county jail in Bastrop County and "is attempting to make
rules concerning not allowing anyone, including inmates
incarcerated in the jail, to smoke anywhere in the
building."
In connection with the foregoing scenario you ask the
following questions:
1. Does the Commissioner's Court have the
authority to regulate whether inmates of the
jail may smoke or does this authority lie
solely in the discretion of the Sheriff?
2. Does smoking in d county jail by
inmates constitute a hazard to nonsmoking
inmates?
May smoking by inmates be prohibited
in i*county jail?
4. What rules may be dictated to the
Sheriff by the Commissioner's Court concern-
ing the operation of the jail? Is their
legal authority only to prov~ide the jail and
adequate funding to operate it?
5. What remedy would the Commissioner's
Court have against the Sheriff if a broad
operational guide line for the operation of
the jail was set by the Commissionergs Court
p. 5751
Honorable Charles D. Penick - Page 2 (JM-1098)
and the Sheriff did not abide by the guide--
lines?
In Wilson v. Lvnauah, 878 F.2d 846 (5th Cir. 1989), the
Fifth Circuit rejected a prison inmate's claim that exposure
to environmental tobacco smoke violated his Eighth Amendment
right to be free from cruel and unusual punishment.
However, we do not believe this holding can be construed to
vest an inmate or anyone else with a constitutional right to
smoke in a jail or a prison. Section 48.01 of the Penal
Code makes it an offense to smoke tobacco in public primary
and secondary schools, elevators, enclosed theaters or
movie-houses, libraries, museums, hospitals, transit system
buses, or intrastate buses. Attorney General Opinion JM-737
(1987) concluded that an ordinance by a home-rule city
prohibiting smoking in public places was not violative of
any state law. Prison officials are not required to meet
health and safety standards for persons who are not
incarcerated. uq 693 F.2d 566, 569 (5th Cir.
1982). Granting an inmate the right to smoke would be
ironic when such privilege is often denied non-incarcerated
citizens.
You ask whether the authority to regulate the smoking
'by inmates is within the province of the commissioners court
or the sheriff. Former article 5115, V.T.C.S., required the
commissioners court to provide a "safe and suitable jail."
Article 5115 was amended by House Bill 1314, Acts 1987, 70th
Leg., ch. 883, § 1, effective September 1, 1987, and such
amendment was carried forward and given effect as part of
section 351.001 of the Local Government Code. The amendment
contains detailed provisions defining the responsibilities
of the commissioners court in providing "safe and suitable
jails." Among the requirements with which the commissioners
court is charged is the responsibility of providing the jail
with proper sanitation, ventilation, cleanliness, health,
adequate security and safety conditions. The question of
whether the commissioners court has authority to determine
if county jail inmates smoke turns on whether it is
necessary to impose such a regulation to comply with the
commissioners court's responsibility under section 351.001.
The resolution of this question is dependent upon the
circumstances existing in a particular county jail and must
be resolved on a case-by-case basis. Such a factual determ-
ination is not within the province of the opinion process.
Section 351.041 of the Local Government Code (formerly
article 5116, V.T.C.S.) designates the sheriff as the
p. 5752
Honorable Charles D. Penick - Page 3 (JM-1098)
"keeper of the county jail" and provides he shall "exercise
supervision and control over the jail." In Attorney General
Opinion H-1190 (1978) it was stated that under then article
5116 the authority of the commissioners court over the jail
is limited to providing the jail adequate funding and broad
operational guidelines, and that the actual operation of the
jail is the responsibility of the sheriff.
Attorney General Opinion H-1190 stated that under then
article 5116 the authority to supervise, direct and control
the jail is vested in the office of the sheriff. Whirl
Kerq, 407 F.2d 781 (5th Cir. 1968), addressed the responsXl
bilities of the sheriff as keeper of the jail. In Whirl it
was stated "the statutory obligations of a Texas sheriff are
not amorphous ones . . . . Article 5116 places the
responsibility for the county jail directly upon the county
sheriff . . . .'I Id. at 794-795. We are of the opinion
that the sheriff as "keeper of the county jail" has the
discretion to make any reasonable rules relative to super-
vision of prisoners and the operation of the jail, including
whether smoking is allowed in the jail. In the event the
sheriff should permit smoking in the jail, the commissioners
court may only prohibit same if it falls within its respons-
ibility of providing a "safe and suitable jail" under
section 351.001 of the Local Government Code.1
We cannot address your second question because it
requires the resolution of fact issues. Also, Attorney
General Opinions address specific legal questions. We 'do
not provide the type of general legal advice that your
fourth and fifth questions call for. Therefore, we do not
answer those questions.
1. Section 351.002 states that the standards
prescribed by this subchapter are "minimum standards."
Article 5115.1, V.T.C.S., vests the Commission on Jail
Standards with authority to promulgate reasonable rules
relative to construction and operation of jails, including
establishing minimum standards for the custody, care and
treatment of prisoners. Section 351.002 provides that the
county jail must comply with the minimum standards and the
rules and procedures of the Commission on Jail Standards.
p. 5753
Honorable Charles D. Penick - Page 4 (JM-1098)
SUMMARY
The sheriff as "keeper of the county
jail" has the discretion to make reasonable
regulations relative to the supervision of
prisoners and operation of the jail, includ-
ing the authority to determine whether
smoking should be allowed in the jail. The
county commissioners court may prohibit
smoking by inmates in the county jail if it
falls within its responsibility to provide a
"safe and suitable jail" under section
351.001 of the Local Government Code.
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
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 5754