    The Attorney                General of Texas
                        May 12,     1978




Honorable Jerome Chapman                       Opinion No. H-1166
Texas Commissioner
State Department of Human Resources            Re:     Authority of the Depart-
Austin, Texas                                   ment of Human Resources to
                                               license or certify certain juve-
Honorable Henry Wade                           nile detention    facilities under
District Attorney                              article 695a-3, V.T.C.S.
Sixth Floor, Records Building
Dallas, Texas 75202

Gentlemen:

       Mr. Chapman inquires whether the Department of Human Resources has
authority under the Child Care Licensing Act of 1975, V.T.C.S. art. 695a-3, to
license correctional   facilities operated by the Texas Youth Council and
county juvenile detention facilities operated pursuant to Title 3 of the Family
Code. He asks whether article 2, section 1 of the Texas Constitution, which
provides for separation of powers, or any statute prevents the licensing of
these facilities.  Mr. Wade inquires whether the Dallas County Boys’ Home
established under articles 5138a and 5138b is subject to licensing under the
Child Care Licensing Act.

       The purpose of the Child Care Licensing Act is to establish statewide
 minimum standards for the safety of children in child care facilities and to
regulate the conditions of such facilities     through a licensing program
administered by a division within the Department.   V.T.C.S. art. 695a-3, SS 1,
3. “Child care facility” is defined as

             a facility providing care, training, education, custody,
             treatment, or supervision for a child who is not related
             by blood, marriage, or adoption to the owner or
             operator of the facility, for all or part of the 24-hour
             day. . . .

Section 2(3). “Child caring institution” is defined as




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           a child care facility which provides care for more than 12
           children for 24 hours a day, including facilities known as
           children’s homes, halfway houses, residential     treatment
           camps, emergency shelters, and training or correctional
           schools for children.

Section 2(6). These definitions are certainly broad enough to include juvenile
detention facilities in the coverage of the Act, provided that no other provision of
law requires their exclusion. Facilities operated by the State are exempt from the
licensing requirement, but they must be certified as complying with applicable
provisions of the Act and standards, rules, and regulations promulgated thereunder.
Sections 4(b)(l), 14. Facilities operated by political subdivisions are not exempted
from licensing. See section 2(15); compare Attorney General Opinion H-104 (1973).

        Title 3 of the Family Code gives the juvenile court exclusive original
jurisdiction over proceedings relating to delinquent children and children in need of
supervision. Family Code SS 51.01, 51.04. See V.T.C.S. art. 1926a. Section 51.12 of
the Family Code provides for the operatixof        facilities used for the temporary
detention of juveniles during proceedings under Title 3 of the Family Code. See
Family Code SS 51.13(c)(l), 54.01. Under article 51.12, the county provides the plz
of detention, but “the juvenile court shall control the conditions and terms of
detention and detention supervision. . . .I’ The juvenile court also certifies the
facility pursuant to the following provision:

              (c) In each county, the judge of the juvenile court and
           the members of the juvenile board, if there is one, shall
           personally inspect the detention facilities at least annually
           and shall certify in writing to the authorities responsible for
           operating and giving financial support to the facilities that
           they are suitable for the detention of children in accordance
           with:

                 (1) the requirements of Subsection (a) of this section
              [relating to separation of juvenile and adult offenders1 ;

                 (2) the requirements of Article 5ll5, Revised Civil
              Statutes of Texas, 1925, as amended, defining ‘safe and
              suitable jails,’ if the detention facility is a county jail;
              and

                 (3) recognized       professional    standards   for the deten-
              tion of children.

Section 51.12 (bracketed material added).. Children may not be placed in a facility
unless it has been certified as suitable for detention.




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Honorable Henry Wade           -   Page3     (H-1166)



       In our opinion, section 51.12 provides an independent certification   scheme for
the facilities it covers, with its own inspection procedures and standards.          Cf.
Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex. Civ. AZ
 - Amarillo 1971, writ ref’d n.r.e.1 (responsibility for administering adult probation
placed wholly on courts). If article 695a-3 were construed to apply to the county
juvenile detention institutions referred to in section 51.12, the two provisions would
be brought into conflict.      The standards promulgated under article 695a-3 might
differ from those set out in section 51.12; in addition, each provision grants a
different entity the authority to determine whether a place is suitable for children.
 These potential conflicts can be avoided by recognizing section 51.12 as a special
provision on certification    of the county juvenile detention facilities it describes,
which controls over the general child care licensing statute. See Trinity Universal
Insurance Company v. McLaughlin, 373 S.W.2d 66 (Tex. Civ. AK-            Austin 1963, no
writ).

        We have found no evidence in the legislative history of an intent to require
dual certification   of county juvenile detention facilities maintained pursuant to
article 51.12. The fiscal notes, which estimated the number of institutions that
article 695a-3 would add to the Department’s work load, did not mention such
facilities, even though every county is directed to provide them. In view of our
conclusion that article 695a-3 does not authorize the Department .to license the
facilities certified by the juvenile courts under section 51.12, we need not address
your question about the separation of powers clause.

        If the juvenile court judge determines that a child has engaged in delinquent
conduct or conduct indicating a need for supervision, he must hold a disposition
hearing.      Family Code SS 54.03, 54.04. After making specified findings at the
disposition hearing, he may place the child on probation in a public or private
institution or commit him to the Texas Youth Council. Family Code S 54.04. The
judge retains power to modify dispositions, except a commitment to the Texas
Youth Council. Family Code S 54.05; McAlpine v. State, 457 S.W.2d 426 (Tex. Civ.
App. - Houston Ilst Dist.] 1970, no writ).       We find no Family Code provision
requiring the judge to inspect and certify the institutions       in which he places
children following a disposition hearing.

       The Dallas County Boys’ Home, about which Mr. Wade inquires, was
established under the authority of article 5136a, V.T.C.S., permitting certain cities
and counties acting jointly to establish and operate homes for dependent and
delinquent youth. A board of managers appointed by the commissioners court has
the general management and control of the home and its inmates. V.T.C.S. art.
5138b, S 1. We are informed that all of the Home’s residents have been determined
by juvenile courts to be dependent and neglected, delinquent, or in need of
supervision.  See Family Code SS ll.03, 14.01, 14.02(b), 51.03. It is not used as a
temporary homg      facility prior to adjudications by the juvenile court, and the
Dallas County Juvenile Board has not exercised any control over it. The Boys’




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     Home is thus not a detention facility operated pursuant to article 51.12 of the
     Family Code. We do not find a conflicting inspection system for the Boys’ Home,
     nor any statute exempting it from licensing under article 695a-3. ln our opinion, it
     is a child care facility subject to licensing under that Act.

             The Texas Youth Council administers the State’s correctional facilities for
     delinquent children. V.T.C.S. art. 5143d. No separate, conflicting inspection and
     certification  system is provided for TYC schools; nor do we find any other statute
     which might operate to exempt them from certification            under article 695a-3.
     According to testimony before legislative committees, one purpose of article 695a-
     3 was to remove the exemption formerly applicable to public facilities.              -See
     Attorney General Opinions H-423 (1974), H-104 (1973). The fiscal notes stated that
     the bill would add 40 state-operated    facilities to the Department’s workload. In
     1977, the Legislature considered and rejected an amendment to the Child Care
     Licensing Act which would have exempted TYC correctional             facilities from its
     provisions. S.B. 396, 65th Leg., R.S. In our opinion, institutions operated by the
     Texas Youth Council are subject to certification     under article 695a-3. Article 2,
     section 1 of the Constitution       does not prevent their certification          by the
     Department,     since both agencies are in the executive branch.           See generally
     Attorney General Opinion H-6 (1973).

                                         SUMMARY

                 Article 695a-3, V.T.C.S., the Child Care Licensing Act,
                 authorizes the Department of Human Resources to certify
                 juvenile detention facilities operated by the Texas Youth
                 Council and to license the Dallas County Boys’ Home
                 operated pursuant to articles 5138a and 5138b, V.T.C.S. It
                 does not authorize       the Department     to license county
                 detention facilities certified by juvenile courts under section
                 51.12 of the Family Code.

                                                  -U~Y          ww    I




&PPROVED:



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     DAVID M. KENDALL, First Assistant




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Honorable Jerome Chapman
Honorable Henry Wade        -   Page5    (H-1166)




C. ROBERT HEATH, Chairman
Opinion Committee

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