                                ATTORNEY GENERAL OF TEXAS
                                             GREG        ABBOTT




                                              November 13,2008



The Honorable John W. Segrest                            Opinion No. GA-0683
McLennan County Criminal District Attorney
219 North Sixth Street, Suite 200                        Re: Whether a county commissioners court may
Waco, Texas 76701                                        establish an electronic monitoring program under
                                                         Code of Criminal Pro'cedure article 42.035(b)
                                                         (RQ-0718-GA)

Dear Mr. Segrest:

        You write that the McLennan County Commissioners Court (the "commissioners court")
seeks to establish an electronic monitoring program, separate from a program established by the local
community supervision and corrections department, that may be imposed as a component of house
arrest under Code of Criminal Procedure article 42.035(b).1 See TEX. CODE CRIM. PROC. ANN. art.
42.035(b) (Vernon 2006). You ask whether the commissioners court has authority to establish such
an electronic monitoring program. 2

        Article 42.035(a) authorizes "[a] court in a county served by a community supervision and
corrections department that has an electronic monitoring program .... [to] require a defendant to
serve all or part of a sentence of confinement ... by submitting to electronic monitoring ...." Id.
art. 42.035(a). In different language, subarticle (b) also authorizes a judge to permit a convicted
defendant to serve the defendant's sentence "under house arrest, including electronic monitoring and
any other conditions the court chooses to impose ...." Id art. 42.035(b).

        A commissioners court has no express or implied authority under article 42.035 to establish
an electronic monitoring program that is separate from that established by a community supervision
and corrections department. See City ofSan Antonio v. City ofBoerne, 111 S.W.3d 22, 28 (Tex.
2003) (stating that a county commissioners court may exercise only those expressly conferred and


        lLetter from Honorable John W. Segrest, McLennan County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas, at 1-2 (May 22, 2008) (on file with the Opinion Committee, also available at
www.texasattorneygeneral.gov) [hereinafter Request Letter]; see also Letter from Honorable John W. Segrest, McLennan
County Criminal District Attorney, to Honorable Matt Johnson, Judge, 54th District Court, at 1 (May 20,2008) (attached
to Request Letter).

         2Telephone conversation with Honorable John Segrest, McLennan County Criminal District Attorney (Oct. 1,
2008).
The Honorable John W. Segrest - Page 2                    (GA-0683)



implied powers). Subarticle (b) does not specify the entity that may establish an electronic
monitoring program. See TEx. CODE CRIM. PROC. ANN. art. 42.035(b) (Vernon 2006). And
subarticle (c), which authorizes a court to require the defendant to pay the "the cost of electronic
monitoring," may be understood with reference to the county's responsibility to provide the local
community supervision and corrections department with "equipment"; thus, it does not implicitly
authorize a commissioners court to establish an electronic monitoring program. See id art.
42.035(c); see also TEX. GOV'T CODE ANN. § 76.008(a) (Vernon 2005) (setting out county's
responsibility in relation to the local community supervision and corrections department).

        In light of this answer, we do not address your second question regarding the legality of
certain aspects ofan electronic monitoring program established by a commissioners court. 3 Request
Letter, supra note 1, at 2.




          3We do not consider whether a county commissioners court could establish an electronic monitoring program
as part of a county correctional center or a county jail industries program. Nothing in your request or in any materials
submitted with your request indicates that the proposed electronic monitoring program would be a component of either
a correctional center or jail industries program. See TEX. Loc. GOV'T CODE ANN. §§ 351.181, .201(a) (Vernon 2005).
See generally Request Letter, supra note 1, and materials attached thereto. Nor do we consider a county commissioners
court's authority to establish an electronic monitoring program under article 17.44 ofthe Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 17.44 (Vernon 2005).
The Honorable John W. Segrest - Page 3      (GA-0683)



                                    SUMMARY

                     Texas Code of Criminal Procedure article 42.035 does not
              authorize a county commissioners court to establish an electronic
              monitoring program separate from that established by a community
              supervision and corrections department.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
