                             QMfice     of the Elttornep           QBeneral
                                           @date of IICexae
DAN MORALES                                   May 13.1992
 ATTORNEY
      GENERAL



    Honorable Joe S. Falco, Jr.                   Opinion No. DM-120
    Grimes County Attorney
    Cmmty Courthouse                              Re: Whether Grimes County may construct
    P. 0. Box 439                                 its new jail at a location in the county
    Anderson, Texas 77830                         outside the county seat (RQ-336)

    Dear Mr. Falco:

           You ask whether the Commissioners Court of Grimes County, Texas, may
    construct its new county jail in a location within Grimes County but outside of the
    county seat. You state that the present county jail facility is located in the
    unincorporated town of Anderson, which is the county seat. The jail facilities are
    inadequate and substandard, and a new facility must be constructed.. You wish to
    know if the new jail may be built in Navasota, an incorporated city in Grimes
    County, approximately ten miles from the county seat.

           County jails have ordinarily been located at the county seat, and under
    former law, certain county jails were required to be located at the county seat. See
    Attorney General Opinion M-637 (1970) (if county has only one jail, it must be
    located at county seat); 35 D. BROOKS,COUNTYAND SPECIALDISTRICTLAW
    9 20.52 (Texas Practice 1989); see also Attorney General Opinion O-2201 (1940)
    (county jail may be located outside of county seat). An examination of current
    provisions on the location of a county jail demonstrates that the Grimes County
    Commissioners Court is authorized to locate the new jail anywhere in the county
    including outside of the county seat.

           Statutes on the location of county jails are codified in chapter 2921 and at
    section 351.001 of the Local Government Code. We will begin by looking at section
    351.001, which provides as follows:

             lThe title of ehaptcr 292 of the Local Government Code is “Auxiliary County Buildings.
    However, the heading of a chapter does not hit or expand the meaning of a statute. Gov’t Code
    0 311.024. Thus, we cannot assume that all provisions of chapter 292 on the location of county jails
    pertain only to awiliary county jails.



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Honorable Joe S. Falco. Jr. - Page 2 (DM-12 0 )




              (a) The commissioners wurt of a wunty shag provide safe
          and suitable jails for the county.

              (b) The jails must be located at the county seat U&W the
          wun@havon&onej~inwhichcasethejaiImaybelocated
          a?lyw~inthecountyatthf?diraetionofthew~~
          wuli.

Local Gov’t Code 0 351.001 (emphasis added). Subsection (a), formerly article
5115, was recoditled in 1987 as section 351.001 of the Local Government Code.
Another 1987 enactment, House Bii 16 of the 78th Regular Legislative Session,
adopted the provision now codified as subsection (b) of section 351.001. Acts 1987.
70th Leg., ch. 92,s 4; see ako Acts 1989,71st Leg., ch. 1,s 64(e) (wnforming section
351.001 to 1987 enactment). The bill analysis to House Bill 16 stated that under
current law, a county with only one county jail must locate it in the wunty seat.
House Comm. on County Affairs, Big Analysis, H.B. 16, 78th Leg. (1987). The
purpose of the big was stated as follows:

              H.B. 16 allows the Commissioner’s Court of a county having
          only one county jail to locate [it] anywhere in the county that the
          Commissioner’s Court deems appropriate.




       A 1989 amendment to section 292.001 of the Local Govermnent Code gives
the commissioners court even broader discretion than does section 351.001 with
respect to choosing the location of the county jail. Section 292.001 provides in part:

               (a) The commissioners court of a county may purchase,
          wnstruct, or provide by other means,. . . a building or rooms,
          other than the wurthouse, for the housing of county or district
          offices, county or district courts, justice of the peace courts,. . .
          or county jail facilities, . . . if the wmmissioners court
          determines that the additional building or rooms are necessary.

              (b) The building or rooms must be located in the county
         seat. However, if the buildingor nwms are for houdng countyjail
         ftac#ia,the building or rooms may be located anywhere in the
         wunty at the discretion of the commissioners court


                                          p.   617
Honorable Joe S. Falco, Jr. - Page 3 WI- 12 0 )




Local Gov’t Code 0 292.001 (emphasis added). The emphasized language was
added in 1989. Acts 1989,71st Leg., 1st C.S., ch. 31. 0 1. The predecessor of this
statute was adopted in 1957, codified as sections 1 and 2 of article 237Ob. V.T.C.S,
and recodEed in 1987 as section 292.001 of the Local Government Code. Acts
1957,SSth Leg., ch. 476, at 1386, Acts 1987,7Oth Leg., ch. 149.0 1. As adopted, it
provided that all such buildings or rooms, including those for county jail facilities,
must be located at the wunty seat. Acts 1957,55th Leg., stp~.~ The bill analysis to
the 1989 amendment gave the following background for this provision:

                 Section 292.001 of the Local Government Code prohibits
            the building of a county jail facility at any location other than the
            county seat. The law can be worked around by contracting with
            another county to house their prisoners, thus making the jail
            facility an interlocal jail under Article 4413(32c), V.T.C.S.

               Section 292.001 was passed near the turn of the century and
            many county officials believe it has outlived its otiginal intent

House Comm. on County Affairs, Bill Analysis H.B. 25,71st Leg., 1st C.S. (1989).

        The purpose of the amendment, according to the bill analysis, was to allow
“the county jail to be built anywhere within a county’s geographic boundaries at the
discretion of the commissioners court.” Section 292.001 of the Local Government
Code authorizes the county commissioners to locate the jail anywhere in the county,
whether or not it is the only jail in the county.

       Sections 292.002 and 292.004 of the Local Government Code also address
the location of the county jail. These statutes were both adopted in 1979 and their
provisions on the county jail have not been amended since then. Section 292.002 of
the Local Government Code expressly authorizes the wunty to build a jail outside
of the wunty seat:

           (a) The commissioners court of a county may provide an office
           building or a jail facility at a location in the county outside the



         2ArticIe 23X%, V.T.C.S., as em&d in 1957, see Acts 1957, 55tb Leg., ch. 476, at 1386,
authorized the co mmiasi~ers court to squire a courthouse building or a jail building “(ii addition to
the existbg eomtho~     and/or jail).’ Thus, it or&ally pertained to ~11amilky facility, but the
rele!mtlangurgchasbccnrepc.3lcd      Acts1!%9,7lstLe&dl.1,f64(f).


                                              p.    618
Honorable Joe S. Falw. Jr. - Page 4 (IX+ 12 0 1




         county seat in the same manner that is applicable to such a
         buildiqorfacilityatthecountyseat....

Local Gov’t Code 0 292.002. This language was derived from a 1979 enactment
formerly codified as V.T.C.S. article 237Ob-3,0# 13. Acts 1979,66th Leg., ch. 18, at
28.

      Another 1979 enactment, now codified as section 292.004 of the Local
Government Code appears to be inconsistent with section 292.002:

              (a) The commissioners wurt of a county may provide,
         inside~hemkcipa&d&gnakdarfhecowUyseat,arlauxiky
         wurthouse, u jail, . . . or any facility related to the administration
         of civil or uiminal justice. For purposes of this section, the
         municipality designated as the county seat includes territory
         added to the municipality after it became the county seat but
         excludes any part of the municipality outside the county.

              . . ..


             (f) This section does not limit the authority of the
         commissioners court under any other law relating to the
         providing of county facilities.

Acts 1979,66th Leg., ch. 174, at 382 (formerly codified as sections 1 - 3 and 6(a) of
article 1605a-5, V.T.C.S.) (emphasis added).

        The express permission given by section 292.004 for locating an auxiliary jail
in amtexed portions of the county seat indicates that it does not otherwise. authorize
the jail be located outside the boundaries of the original county seat. However,
sections 292.002 and 292.004 could have been harmonized even in 1979 by
construing them as cumulative, rather than inconsistent, in the authority they gave
the county to determine where to locate wunty jail fkilities. See genes& Attorney
General Opinion JM-606 (1986) (citing V.T.CS. articles 1605a-5,237Ob and several
other statutes as authorizing the creation of branch offices for county officers
outside the county seat and of auxiliary courthouses both at the county seat and
outside of it).

     The adoption of the 1989 amendment to section 292.001 establishes that the
wmmissioners court has authority to build jails outside the county seat. As the

                                         p.   619
Honorable Joe S. Falco, Jr. - Page 5 @M-l 20)




latest expression of legislative intent, this provision controls over any inconsistent
provision of the earlier-adopted section 292.004. Gov’t Code O3ll.U25(a).
Moreover, the 1989 amendment to section 292.001 pertains only to jails, while
section 292.004 pertains to several kinds of county facilities. In the event of an
hconcilable     conflict between a general provision and a special provision, the
special provision will prevail BSan exception to the general provision. Gov’t Code
0311.026(b). Accordingly, the Commissi oners Court of Grimes County has
authority under section 292.001 of the Local Government Code to build jail facilities
outside of the county seat.

                                   SUMMARY

              Article 292.001 of the Local Government Code authorizes a
          commissioners court to build a county jail at any location within
          the wunty, including a location outside of the county seat.




                                             DAN      MORALES
                                             Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARYKEJLER
Deputy Assistant Attorney General

RBNBAHIcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Susan L Garrison
Assistant Attorney General




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