                        December 12, 1990



Mr. Jack E. Crump        Opinion No.    JM-1260
Executive Director
Texas Commission on      Re: Whether minimum jail standards
  Jail Standards         established by section   511 of the
P. 0. Box 12985          Government Code are applicable   to
Austin, Texas   78711    jails operated  for a municipality
                         by a private entity   (RQ-2069)

Dear Mr. Crump:

     You ask whether minimum  jail standards adopted by the
Texas Commission  on Jail Standards    pursuant   to section
511.009 of the Government    Code are  applicable   to jails
operated for a municipality by a private entity.   You ask:

        Do Minimum Jail Standards    developed   as a
        requirement of Section   [511.009] apply to
        jails . . . operated by a private entity   for
        a municipality?

        Do requirements to provide consultation    and
        technical assistance,  review of plans,    and
        inspection apply to these facilities?

        Does this statute apply to those   facilities
        already in existence [that] are operated by a
        private vendor for a municipality?

     Section 361.061 of the Local Government Code, formerly
codified as article 5115e(a), V.T.C.S.,   provides that the
governing body of a municipality     may contract with   'Ia
private vendor or a county" for the operation and mainte-
nance of a jail.

     Section 361.062 of the Local Government Code, formerly
codified as article 5115e(b),  sets out the conditions   that
must be  included in such a contract.    Subsection   (1) of
section 361.062 states:

        A contract made under this subchapter must:




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            (1) require the private vendor or county
        to operate the facility    in compliance with
        minimum standards of construction, equipment,
        maintenance, and operation   of jails adopted
        by the Commission    on Jail Standards    and
        receive and retain a certification of compli-
        ance from the commission.

     Your concern is prompted   by the provisions of section
511.009 of the Government Code authorizing the commission to
adopt reasonable  standards   for the operation     of county
jails. Because section 511.009 refers only to the commis-
sion's power to adopt standards       for countv iails, YOU
question whether this rulemaking authority     is extended  to
municipal jails operated by a private entity under     section
361.061.

     Section 511.009 is a nonsubstantive recodification    of
article 5115.1, V.T.C.S., originally enacted in 1975.    H.B.
272, Acts 1975, 64th Leg., ch. 480,      at 1278.     Section
511.009 sets forth the general duties of the commission:

        (a)   The commission shall:

               (1) adopt reasonable   rules and pro-
        cedures establishing  minimum   standards for
        the construction, equipment, maintenance, and
        operation of the county jails:

              (2) adopt reasonable   rules and pro-
        cedures establishing minimum   standards for
        the custody, care, and treatment of prison-
        ers ;

              (3) adopt reasonable rules establishing
        minimum standards  for the number of jail
        supervisory personnel  and for programs    and
        services to meet the needs of prisoners:

              (4) adopt reasonable  rules and proce-
        dures establishing  minimum requirements for
        programs of rehabilitation,   education, and
        recreation in county jails:

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




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                     (6) provide to    local   government    offi-
             cials    consultation  on and     technical    assis-
             tance    for county jails:

                     (7)   review and comment on plans for the
             construction       and  major   modification   or
             renovation of     county jails;

                   (8) require that     the   sheriff   and
             commissioners of each county submit to the
             commission,   on a form prescribed     by the
             commission, an annual report on the condi-
             tions in each county jail within         their
             jurisdiction,    including   all   information
             necessary to determine compliance with   state
             law, commission orders, and the rules adopted
             under this chapter:

                   (9) review the reports submitted   under
             Subdivision  (8)   and   require    commission
             employees to inspect county jails regularly
             to ensure compliance with state law,   commis-
             sion orders, and rules and procedures adopted
             under this chapter: and

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

             (b) A commission rule or procedure is not
             unreasonable because compliance with the rule
             or procedure requires major modification   or
             renovation of an existing jail or construc-
             tion of a new jail.

    Gov't Code 0 511.009.1



          1.  Subsection 9A was added by S.B. 289, Acts 1989,
    71s.t Leg., ch. 20, at 297, to article   5115.1, V.T.C.S.,
    without   reference  to its repeal and recodification   as
    section 511.009 of the Government    Code.   Subsection 9A
    provides:

       (a)   On the request of a sheriff, the commission shall
                                             (Footnote Continued)




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Mr. Jack E. Crump - Page 4     (JM-1260)




     The legislature has by the express provisions         of
section 361.062 evidenced its intent that the Commission   on
Jail Standards' responsibility     be enlarged to     include
private vendors and counties operating a jail for a munici-
pality.  Section 361.062 is the later enactment of the
legislature and we believe both statutes must be construed
together in order to give effect to the intent of the
legislature. See Gov't Code 5 311.025.      In construing   a
statute the courts may consider      the consequences   of a
particular construction.   Section   361.061 allows munici-
palities to contract with a county     as well as a private
vendor for the operation    of a jail. To conclude that a
county operated municipal jail facility is subject to rules
of the commission while a municipal facility operated by a
private vendor is excepted from regulation would produce   an
illogical result as well as create confusion in the adminis-
tration of the act.2


(Footnote Continued)
   inspect a facility to determine    whether there are
   areas in the facility in which   fire sprinkler heads
   should not be placed as a fire prevention measure. In
   making a decision under this section, the commission
   shall consider:

         (1) the numbers     and    types    of   inmates   having
   access to the area;

        (2) the likelihood that an inmate will attempt
   to vandalize the fire sprinkler     system  or commit
   suicide by hanging from a sprinkler head: and

         (3) the suitability  of other types of fire
   prevention and smoke dispersal devices available for
   use in the area.

   (b) If the commission determines that fire sprinkler
   heads should not be placed in a particular area within
   a facility, neither a county     fire marshal   nor a
   municipal officer charged with enforcing    ordinances
   related to fire safety may require the sheriff to
   install sprinkler heads in that area.

     2. Attorney General Opinion MW-328     (1981) concluded
that city jails under contract with counties to hold county
prisoners  are considered   "county jails" under     section
511.001 of the Government Code.




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                                                          c



     We conclude that the requirements   of section  511.009
of the Government Code are applicable insofar as they come
within the requirements of subsection (1) of section 361.062
of the Local Government Code that requires the operation  of
the facility "in compliance with the minimum standards    of
construction, equipment, maintenance, and operation of jails
adopted by the Commission on Jail Standards and [that the
facility] receive and retain a certification of compliance
from the commission."

     Your second question is whether requirements to provide
consultation and technical assistance, review of plans,   and
inspection apply to these facilities.   We believe the re-
quirements stated by section 361.062 of the Local Government
Code for a contract entered into between a municipality   and
a private vendor under that provision are sufficiently broad
to include the requirements that you ask about.

     Your third question is whether section 361.062 of the
Local Government Code makes the section 511.009 of the Gov-
ernment Code requirements    applicable to those    facilities
already in existence operated by a private vendor       for a
municipality.   Former article 5115e(b), V.T.C.S., recodified
as section 361.062 of the Local Government Code, was adopted
in 1987 with an effective date of August 3, 1987. H.B.      85,
Acts 1987, 70th Leg., 2d C.S., ch. 35, at 123. A statute is
presumed to be prospective in its operation unless expressl:.-
made retrospective.     Gov't Code § 311.022.     The statute
also negates retrospective operation    in that it applies   t3
"contracts entered into under this article." We       conclude
that the provisions of section 361.062 of the Local Govern-
ment Code are applicable    to those facilities    already   ir.
existence, so long as the contract between the municipalit)
and a private vendor    for the operation    of the jail was
entered into on or after the statute‘s      effective date   of
August 3, 1987.

                        SUMMARY

           Minimum   jail standards   adopted by the
        Texas Commission    on   Jail Standards     are
        applicable to jails operated by a private
        vendor for a municipality insofar as they
        come  within the requirements     of    section
        361.062 of the Local Government      Code that
        require the operation    of the facility    I1
                                                     in
        compliance   with the minimum    standards   of
        construction,   equipment,  maintenance,    and
        operation of jails adopted by the Commission




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                                                            c



              on Jail Standards    and receive    and retain a
              certification     of   compliance     from      the
              commission."   Requirements    that the    commis-
              sion provide consultation     and technical     as-
              sistance, review of plans,        and inspection
              apply to jails operated     by a private    vendor
              for a municipality.     The provisions of sec-
              tion 361.062 of the Local Government Code are
              applicable to jails operated by a private
              vendor, so long as the contract between         the
              municipality and the private vendor for the
              operation of the jail was entered into on or
              after August 3, 1987, the effective date of
              the prior codification of section 361.062.




                                               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

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, opinion Committee

 Prepared by Tom G. Davis
 Assistant Attorney General




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