              THE   ATTOKSET          GENERAL
                       OF   TEXAS




                        March 28, 1990


Mr. Fred Toler                         Opinion No.   JR-1152
Executive Director
Texas Commission on Law                Re:   Status of contract
   Enforcement Officer                 jailers for certain pur-
   Standards and Education             poses   (RQ-1871)
1606 Headway Circle, Suite 100
Austin, Texas   78754

Dear Mr. Toler:

     Your questions concern the status of jailers   employed
in a jail operated by a private vendor under contract with a
county, and the authority of the Texas    Commission on Law
Enforcement Officer  Standards  and Education  to establish
standards for jailers and other jail personnel under section
415.0541 of the Government Code. Section 415.0541 provides:

            (a) The commission    [Commission on Law
        Enforcement Officer Standards and Education]
        shall establish   minimum   physical, mental,
        educational, and moral standards for persons
        employed or used in the operation of a county
        jail.

            (b) The commission's authority and power
        applies to all county   jail personnel.   The
        commission shall have additional    staff  to
        carry out this section.

            (c) Not later than one year after     the
        date that the commission    establishes stan-
        dards for county jail personnel, each county
        must have all iail oersonnel certified bv the
        commission.

            (d) A standard requiring a person to have
        a degree of formal   education or the eguiva-
        lent does not apply to a person       who was
        employed or whose services   were used in the
        operation of a county jail on August      29,
        1977.   (Emphasis added.)




                                 P- 6081
Mr. Fred Toler - Page 2    (JM-1152)




     Subchapter F of chapter     351 of the Local Government
Code authorizes counties to contract for privately run jail
facilities.   Section   351.101 authorizes   the commissioners
court of a county, with the approval of the sheriff of the
county, to contract with     a private   organization to place
low-risk inmates   in a detention center.      Section   351.102
provides that the commissioners court may contract with         a
private vendor to provide for the maintenance or      management
of a jail, detention center, work camp, or related facility.
Section 351.103 requires the private vendor to operate        the
facility in compliance with minimum standards adopted by the
Commission on Jail    Standards and to receive     and retain   a
certification of compliance from the commission.         Section
351.103 further provides for regular, on-site monitoring       by
the sheriff.

     You ask the following questions:

        1. Are the Subchapter       F  contract  county
        jailers, county jailers within the definition
        and licensing   requirement   of Chapter   415,
        even though   these persons are employed     by
        private entities as opposed to the sheriff?

        2. If these   Subchapter  F contract   county
        jailers are not county jailers as defined   in
        Chapter 415, then are these persons     'other
        county jail personnel' within the meaning   of
        Section 415.0541?

        3. The legislative history     of Chapter   415,
        and its predecessor     Article   4413    (29aa)
        V.A.C.S. reflects a modification in wording
        in that the word certify has been changed     to
        the word   license, throughout    Chapter   415.
        Therefore, can the word 'certify' in Section
        415.0541 be interpreted as authorizing       the
        Commission   to license   'other county     jail
        personnel?l

        4. If the answer to question three is in the
        affirmative, then   is the Commission    autho-
        rized to establish    pre-licensing   standards
        and licensing   tests  for the   'other county
        jail personnel,# and as license holders     are
        these persons    subject  to the suspension,
        revocation and training provisions    contained
        in Chapter 415?

        5. If the answer to question four is in the
        negative, then which provisions  of Chapter
        415 apply to these persons?



                               P. 6082
Mr. Fred Toler - Page 3   (JM-1152)




        6. Was it the legislative    intent that the
        phrase *for persons employed   or used in the
        operations of a county jail' be interpreted
        to apply to only those persons    who are not
        county jailers as defined in Chapter 415, but
        who exercise care, custody, control or super-
        vision of inmates; or was it the legislative
        intent that the phrase apply to everyone   who
        is associated   with the operations    of the
        jail,   for   example: secretaries,    medical
        personnel and other personnel,    who provide
        support for the jail operations?

     In your first question you ask whether jailers employed
by private vendors under contract with a county come within
the definition and licensing requirements of Chapter 415 of
the Government Code. Subsection    (2) of section 415.001   of
the Government   Code defines   %ounty jailer"   to mean    'Ia
person designated   as a jailer or guard of a county      jail
under section 85.005, Local Government Code."   That  section
authorizes the sheriff to employ guards.

     Contract county jailers do not come within the defini-
tion of county jailer in section 85.005 of the Local Govern-
ment Code since they are employed    by the private   vendor
operating the facility rather than the sheriff, and they are
not subject to the licensing requirements of chapter 415 of
the Government Code.

     In your second question you ask whether contract county
jailers are other county  jail personnel within the meaning
of section ,415.0541.  Section  511.0011 of the Government
Code, formerly article   5115.1, V.T.C.S.,  defines  "county
jail" as 'Ia facility operated by or for a county for the
confinement of persons accused or convicted of an offense."

     Attorney General Opinion  WW-328 (1981) concluded    that
"a city jail holding  county prisoners pursuant to contract
thereby becomes a county jail for the purposes of article
5115.1, V.T.C.S. (now section 511.0011),   so that   its em-
ployees are required to be certified by the Texas Commission
on Law Enforcement Officer Standards and Education."    Since
a contract county jailer is a person employed or used in the
operation of a l@county jail,"  as that term   is defined   in
section 511.001, the commission has authority to "establish
minimum physical, mental,  educational and moral   standards"
for the certification of a "contract county jailer."

     In your third    question  you ask whether     the word
"certify," as used in section 415.0541, may be interpreted
as authorizing the commission to OOlicense'qother county jail
personnel.   We do not believe  that the term "certify"    is



                              P. 6083
Mr. Fred Toler - Page 4    (JM-1152)




equivalent to "license" used elsewhere in chapter 415. None
of the express licensing   provisions   apply to other   jail
personnel.   Section  415.0541  defines   the  authority  the
commission possesses in  establishing  standards for  persons
employed or used in the operation of the jail.

     While your fourth    question is predicated    on our con-
cluding that "certify" means ?License,e we will nevertheless
address the matter of establishment of standards for "other
jail personnel."   The intent of the Legislature to establish
standards for personnel other than jailers is evidenced        by
language employed in section 415.0541.     Subsections (a) and
(b) provide   that the commission     establish   standards   for
"persons employed or used in the operation of the jail"       and
the llcommission's authority and power applies to all county
jail personnel."    Subsection    (c) expressly   provides   each
county must   "have all jail personnel        certified   by the
commission."   Subsection    (b) states that    "the commission
shall have additional staff to carry out this section."

     You also ask in your      fourth question     whether   these
persons are subject    to the     llsuspension, revocation     and
training provisions   contained    in Chapter    415."     Section
415.031 provides for licensing and training of officers        and
county jailers.1   Section   415.001 defines    "officer" as '*a
peace officer   or reserve    law enforcement      officer."    We
understand your   question   to exclude    "county   jailers"   in
referring to "other   jail personnel."    By their terms,      the
provisions relating to training programs       for officers    and
county jailers are not applicable to "other jail personnel."
Nor do we believe other provisions with respect to suspen-
sion and revocation of licenses contained in section 415.060
to be applicable to "other jail personnel."          We conclude
that it was the intent of the Legislature that the commis-
sion establish standards    for all the remaining      personnel,
pursuant to section 415.0541, without regard to the reguire-
ments of chapter    43.5 relating   to an officer     and county
jailer.




     1. The commission is also charged with the responsi-
bility of licensing public security officers.      &g   Attorney
General Opinion JM-878 (1988).      To come within the defini-
tion of llpublic security officern as that term is defined in
section 415.001 of the Government     Code, the person must   be
employed as an armed     security officer   by the state or a
political subdivision.     Your question relative     to "other
county jail personnel"     excludes   consideration   of public
security officers.




                               P. 6084
    Mr. Fred Toler - Page 5    (JM-1152)




         Our disposition of your fourth question is dispositive
    of the  fifth question   relative to "which provisions    of
    Chapter 415 apply to these persons."

         Your sixth question asks whether the provision         "for
    persons employed or used in the operation of a jail" applies
    to persons    other than county    jailers   and persons     who
    exercise care, custody, control, or supervision of inmates.
    As noted in our answer to your fourth question,     subsection
    (b) of section 415.0541   expressly provides    that the com-
    mission's authority "applies to all county jail personnel."
    llpersonnelllis defined in Oxford American     Dictionary    498
    (1980) as "the body of people employed in any work,     staff."
    We believe   that it was the intent of the Legislature        to
    include all county jail employees     rather than   limit the
    provision of section 415.0541 to county jailers and persons
    who exercise   care, custody,  control,    or supervision     of
    inmates.                                                  .

                             SUMMARY

               Jailers employed in a jail operated by a
            private vendor under    contract with a county
            are not   Vounty    jailers" as that term      is
            defined   in section    85.005   of the    Local
P
            Government Code. Contract jailers are other
            county jail personnel    within the meaning    of
            section 415.0541 of the Government Code,      and
            the Texas    Commission   on Law     Enforcement
            Officer Standards and Education is authorized
            to establish standards    for certification    of
            these jailers    in accordance with    the pro-
            visions of this section.     The standards    for
            certification of    contract   jailers  and all
            other jail personnel are contained in section
            415.0541.   Other  provisions in chapter      415
            relative to licensing of officers and county
            jailers are not applicable.     The requirement
            that the commission    establish standards    for
            all county jail personnel     is not limited   to
            employees who exercise care, custody,        con-
            trol, or supervision of inmates.




                                           JIM     MATTOX
                                           Attorney General of Texas
P   MARY KELLER
    First Assistant   Attorney General



                                   Pa 6085
Mr. Fred Toler - Page 6       (JM-1152)




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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