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DAN MORALES
 ATTORNEY
      GENERAL                               July 29,1996
     The Honorable Robert Junell                 Okion No. DM-404
     Chair, Committee on Appropriations            -
     Texas House of Representatives              Re: Whether the Texas Commission on Jail
     P.O. Box 2910                               St~dards has jurisdiction over a prison hous-
     Austin, Texas 78768-2910                    iq only federal inmates (RQ-883)

     Dear Representative Junelh

             The United States Attorney Geenerdhas sole authority to control and manage a
     federal penal and correctional institution. Under her direction, the federal Bureau of Pris-
     ons manages and regulates all federal penal and correctional institutions. You rekr to the
     Eden Detention Center, a penal and corrccuonal institution, that houses only federal pris-
     oners and that the City of Eden leases and operates pursuant to a contract with the federal
     government. You ask whether the Texas Commission on Jail Standards may regulate and
     inspect the Eden Detention Center. Because fhderal law vests in the United States Attor-
     ney General and the federal Bureau of Prisons sole authority to control, manage, and
     regulate federal penal and correctional institutions, we conclude the Texas Commission on
     Jail Standards has no jurisdiction over the Eden Detention Center.

             You state that in 1985 the City of Eden executed an intergovemmental agreement
     with the federal Bureau of Prisons, whereby the city agreed to provide custody, care,
     treatment, and subsistence of federal prisoners.I In accordance with the agreanent, the
     city leased the Eden Detention Center, which currently is owned by a nonprofit corpora-
     tion organized under the Texas Non-Profit Corporation Act.* A corporation specializing
     in prison management manages the Eden Detention Centers

              You aver that the Eden Detention Center has housed only federal inmates and de-
     tflillws:
               With the exception of a few month9 period of non-occupancy of [the
               detention center] caused by a tire, the City has continuously housed
The Honorable Robert Junell - Page 2              (DM-404)




            federal inmates at [the de-tentioncenter] under the [itergovemmental
            agreement]. The only other persons incarcerated at [the detention
            center] since October 1985 have been federal inmates/detainees
            placed in [the center] under an intergovernmental services agreement
            with [the Immigrationand Natmah&ion Service]. [The detention
            center] is not and has never been used as a municipaljail or detention
            fkcility. It has never been used to house inmates or detainees of the
            City, of the State of Texas[,] or any of its political subdivisions.
Furthermore, you state that the federal Bureau of Prisons has, since the Eden Detention
Center opened in 1985, monitored, inspected, and overseen the detention center’s opera-
tiOltS.

        You indicate that the Texas Commissionon Jail Standards (the “commission”) be-
lieves it may monitor and regulate the Eden Detention Center. As we understand the
commission’s argument, it believes Local Government Code chapter 361 requires the
.commission’sinvohment. Local Government Code section 361.061 authorizes the gov-
erning body of a municipalityto contract with a private vendor to operate or manage a jail
or detention center. Nevertheless, the contract must require the private vendor to comply
with the commission’s minimtmt standards and to be certified by the commission.4 The
commission evidently construes chapter 361 to apply to a penal and correctional facility
that a private vendor operates for a municipality but that houses federal prisoners exclu-
sively. You ask four specific questions about the commission’s authority to monitor and
regulate the Eden Detention Center. Because we determine that the commission has no
authority to monitor and regulate the Eden Detention Center, we need not aitswer your
speciiic questions.

         We derive our answer from federal law. Under 18 U.S.C. 8 4001, the United
States Attorney General has sole authority to control and manage a federal penal and cor-
rectional institution. Under the Attorney General’s direction, the federal Bureau of
Prisons has charge of the management and regulation of all federal penal and correctional
institution.s.5 Federal law tixes the duty of care the Bureau of Prisons owes to federal
prisoners, and that law prevails over an inconsistent state law.6

        The Attorney General may contract with a political subdivision of a state for the
imprisonment or care of United States priaoners7 We assume that, pursuant to this
statutory authority, the federal government contracted with the City of Eden to house fed-


          ‘Lccd Gov’tCkdc5 361.062(l).

          518U.8.C.5 4042(1);wdm28       C.F.RpartO,mbpartQ.

          WnitedStutesv. Munit,374U.S. 150,164-65
                                                (lW3); seedsu U.S. Cmm. art.VL

          ‘18 U.S.C. 8 4003;sc olpo28 CER 0 O.%(V).
The Honorable Robert June11- Page 3                 (DM-404)




tral inmates. Because the Eden Detention Center houses solely federal inmates,* it is a
federal penal and wtmctional institutions subject only to the United States Attorney Gen-
eral and, at her direction, to the federal Bureau of Prisons. The commission thus has no
jurisdiction over the Eden Detention Center.

         Jncidentagy, we do not believe the legislature ever contemplated that the wmmis-
sion would assume jurisdiction over federal penal and wrrectional institutions.
Government Code section 511.009(a) requires the commission to adopt minimum stan-
dards for the operation of county jails and for the treatment of inmates in the county jails.
While county jails is not defined to exclude an institution housing only federal prisoners
and detainees,*0we believe the legislature intended to so limit the detkition. In addition,
Local Government Code section 361.061 authorizes a municipality to contract with a pri-
vate vendor to operate a jail or detention center, but the private vendor must operate the
hility in wmpliance with standards adopted by the wmmission.tt While we tind nothing
that defines the terms “jail”or “detention center” for purposes of Local Government Code
chapter 361, we again believe the legislature intended to limit these terms to exclude art
institution housing only federal prisoners and detainees. Indeed, to construe either of
these statutes as applicable to a federal penal and wrrectional i&tution, thereby subject-
ing the institution to the wmmission’s jut&diction, would be inconsistent with the United
States Attorney General’s and the Bureau of Prison’s exclusive authority. The statutes
thus would violate the supremacy clause of the United States Constitution,t2 which re-
quires inconsistent state laws to yield to valid federal laws and mgulationsts We must
presume, however, that the legislature intends its enactments to be wnstitutional.t4

        Fiiy,    we must distinguish our wncluaion and Attorney General Opiion
JM-1260, in which we concluded that minimumstandards adopted by the commission ap-
ply to a municipaljail operated by a private vendor under Local Government Code chapter
361.15 The requestor in that instance was not wncemed with penal and wrrectional insti-
tutions located in the state housing only federal prisoners, in accordance with a wntract



       9C/: AttorneyGeoeralopinionMW-328 (1981)at 1.

       lOGovwnma Cedesection511.001(Z) d&es “cmmtyjait” as “a faciliv cpaxtcdLy or for a
onuyforthc confinrmentOfpcrsoWWWSCdOrCOnvictedd8llOffWSC."

        “Led    God code 5 361.062(l).

        ‘~8TAnscoNsT.alt.vl,cl.2.

        “~~Atlorny~opinion~-1269(199o)(It6(citingFirlcli~Frd             Sm. &LomA.&nv.
dr loCuesto, 458 U.S. 141,152(1982);Selrerv.Vej’hz,7% S.W.26 303 (2%. 1988)).

        “Expmrr    Gmes, 571S.W.2d888,893(Ct Caia Apf~ 1978)(a~ bauc).

        15Attomey
                Gowml o9inionJM.1260
                                   (1990)at 5.
The Honorable Robert Junell - Page 4         (DM-404)




between a municipality and the federal government. Because it is distinguishable, Attor-
ney General Opiion JM-1260 is irrelevant to your question.

                                 SUMMARY

              The Texas Commission on Jail Standards has no authority to
          regulate or inspect a penal and wrrectional ktitution housing only
          federal prisoners and detainees.

               The tams “county jail” in Govemment Code chapter 5 11 and
          “jail” and “detention center” in Local Government Code chapter 361
          do not include a penal and correctional institution housing only fed-
          eral prisoners and detainees.




                                                   DAN MORALES
                                                   Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAHJ.SHJRLBY
Chair, Opiion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General
