                         Bffice of tiy I?lttornep @enera
                                 &ate of IICexae
DAN MORALES                            May 12,1992
 ATTORNEY
      GENERAL




    Mr. Jack E. Grump                  Opinion No. DM-119
    Executive Director
    Commission on Jail Standards       Re: Authority of the Commission on Jail
    P. 0. Box 12985                    Standards to promulgate rules regarding the
    Austin, Texas 78711                temporary emergency housing of county inmates,
                                       and related questions (RQ-351)

    Dear Mr. Grump:

           You have requested our opinion as to whether the Commission on Jail
    Standards (hereafter “the commission”) is authorized to adopt rules regarding
    temporary emergency housing of county inmates. Specifically, you ask:

             1. May the commission create standards authorizing facilities
                for temporary purposes?

             2. Does the commission have other alternatives to resolve non-
                compliant conditions (ie, crowded) except closure?

             3.   May the commission authorize the creation of facilities and
                  usage for longer than one year?

             4.   It is envisioned that temporary facilities would have only
                  one classification of inmate. Does the requirement of
                  Section 351.005 Local Government Code, which deals with
                  separation of inmates, limit construction to masonry, metal
                  or comparable material, provided the facility is structurally
                  sound?

            Your questions may be largely resolved by reference to Attorney General
    Opinion DM-24 (1991). In that opinion, we observed that the commission is
    empowered by section 511 of the Government Code “to promulgate rules
    establishing minimum standards for the ‘construction, equipment, maintenance, and

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Mr. Jack E. Crump - Page 2             (DM-119)




operation of county jails,’ and to enforce its rules and state laws relating to
standards for county jails.” Attorney General Opinion DM-24 at 3. The opinion
also noted that the definition of “county jail” under chapter 511 “encompasses
facilities that are not within the description of ‘safe and suitable jails’ found in
chapter 351 of the Local Government Code.” Id. Chapter 351 refers to the
“traditional county jail, and does not contemplate alternative incarceration facilities
such as a low-risk facility.” Id at 4. go long as a county maintains one traditional
“county jail” that ir subject to chapter 351, its other “jail”facilities are not necessarily
subject to those requirements.         Rather, they are subject to the regulations
promulgated by the commission under chapter 511. ‘The reasonableness of
standards [imposed by such regulations] developed for particular ancillary jail
facilities must be determined on a case-by-case basis.” Id at 5.

        Section 511.009(a) of the Government Code, directs the commission to, inter
alia:

          (1) adopt reasonable rules and procedures                 establishing
          minimum standards for the construction,                   equipment,
          maintenance, and operation of county jails;

          (2) adopt reasonable rules and procedures establishing
          minimum standards for the custody, care, and treatment of
          prisoners;

          . . ..


          (5) revise, amend, or change rules and procedures if necessary;

           .. . .


          (10) at least annually determine whether each county jail is in
          compliance with the rules and procedures adopted under this
          chapter.

Section 511.011 of the Government Code, provides that if the commission finds that
a facility “does not comply with state law or the rules, standards, or procedures of
the commission, it shall report the noncompliance to the county commissioners and
sheriff of the county responsible for the county jail and shall send a copy of the
report to the governor.” After a finding of noncompliance, the commission is
directed to “grant the county or sheriff a reasonable period of not more than one

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Mr. Jack E. Crump - Page 3            (DM-119)




year after the date of the report under Section 511.011 to comply with commission
rules and procedures and state law.” Gov’t Code 8 511.012(a). Jf the commissioners
or the sheriff so request, the commission is empowered to “grant reasonable
variances, clearly justified by the facts, for operation of a county jail not in strict
compliance with state law.” Id A variance may not, however, allow “unhealthy,
unsanitary, or unsafe conditions.” Id

       Section 511.012(b) permits the commission, by order, to “prohibit
confinement of prisoners in the county jail,” or to require the transfer of inmates
“necessary to bring the county jail into compliance.” Section 511.014(a) authorizes
the commission, “[iInstead of closing a county jail, [to] bring an action. . . to enforce
or enjoin a violation of Subchapter A, Chapter 351, Local Government Code, or a
commission rule, order, or procedure.” We construe the enforcement portions of
chapter 511, subsections 511.011 through 511.014. to apply both to the traditional
“county jail” governed by chapter 351 of the Local Government Code, and to those
adjunct and alternative facilities which are subject only to commission regulation.

        We turn now to your specific questions, addressing your second question first.
That question asks whether the commission, after finding a facility to be in non-
compliance with state law rules, standards, or procedures of the commission, has any
alternative to closing the facility if the non-compliance has not been remedied
within the one year period set by Government Code section 511.012(a). The
commission is authorized, but is not required, to “prohibit confinement of prisoners”
in a non-compliant facility. Id &!511.012(b); see a&o id 88 511.012(a), 511.014(a)
(discussed above). Again, the county jail must comply with Local Government Code
chapter 351, whereas other facilities need comply only with commission rules.

       Your remaining questions concern temporary emergency housing of county
inmates. The commission is empowered to “create standards authorizing facilities
for temporary purposes.” As we have indicated, only a traditional “county jail” must
comply with chapter 351. Other facilities housing county inmates need only comply
with rules promulgated by the commission under subsection 511.OO!XThose rules
may authorize emergency facilities, so long as the standards for such facilities are
“reasonable.”

       There is nothing in chapter 511 which would prohibit the commission from
authorizing the creation and usage of facilities for longer than one year. Subsection
511.012 refers to a maximum period of one year for compliance with commission
rules after notification of noncompliance, and subsection 511.009(10) requires that
the commission determine “at least ammally” whether a facility is “in compliance


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Mr. Jack E. Crump - Page 4            (DM-119)




with [its] rules and procedures.” As long as they are reasonable, however, the rules
for minimum compliance under subsection 511.009 may permit the use of a facility
for more than one year. Furthermore, a variance under subsection 511.012(a) may
be. granted for an indefinite period.

        Your last-question is,whether the requirement.of subsection 351.005 limits
construction to “masonry, metal or comparable material.” As we have previously
noted, chapter 351 applies only to a traditional county jail. Any ancillary or
alternative facility is subject only to the rules of the commission promulgated under
chapter 511. So long as the commission’s rules are reasonable, they need not
restrict construction to “masonry, metal or comparable material.“t

       Finally, we note that whether standards promulgated by the commission are
reasonable as applied to a particular facility must be determined on a case-by-case
basis. Whether such rules would be reasonable involves factual determinations that
camrot be resolved in the opinion process.

                                  SUMMARY

                Only a traditional county jail is subject to the requirements
           of chapter 351 of the Local Government Code. “Alternative
           incarceration facilities” are subject only to the regulations of the
           Commission on Jail Standards. As to such facilities, the
           commission may promulgate minimum standards which
           authorize (1) facilities for temporary purposes; (2) remedies for
           non-compliance other than closure of a facility; (3) facilities
           intended to be used for longer than one year; and (4) facilities
           which are not constructed of masonry, metal or comparable
           material.
                                                     Very truly yours,



                                                    DAN      MORALES
                                                    Attorney General of Texas




        lThewmmissioa’rules
                      s on prisonfacilitiesmust be consistent with the Eighth Amendment of
the United States Constitution.



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Mr. Jack E. Cmmp - Page 5            (DM-119)




WILL PRYOR
First Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEAHIcKs
Special Assistant Attorney General

h4ADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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