             THE    ATTORNEY        GENERAL
                       OF   TEXAS




Honorable Dan V. Dent       Opinion No.   JM-1212
District Attorney
P. 0. Box 400               Re: Location of a prisoner work
Hillsboro, Texas   76645    program facility established by
                            section 496.054 of the Govern-
                            ment Code   (RQ-1884)

Dear Mr. Dent:

     You ask two questions relating to the housing of in-
mates who are participants in the Work Program Plan" estab-
lished by the Board of Pardons and Paroles Division of the
Texas Department of Criminal Justice.

     Subchapter C of chapter 496 of the Government       Code
authorizes the Board of Pardons and'paroles     Division   to
establish the work program plan. Under the plan, eligible
persons in the custody of the Institutional Division of the
Department of Criminal Justice,   either in a unit of the
institutional division or a county jail, are granted      the
privilege of working  outside the state prison system at a
work facility owned and operated by a county or municipal-
ity. Gov't Code 55 496.052(b), 496.053. Persons assigned
to a work facility under the plan remain in the legal and
technical custody of the pardons and paroles division.    Id.
55 496.053, 496.054(b)(2).

     To be eligible to receive participants in the program,
a facility must     be a    "secure community     residential
facility," allowing the supervision and monitoring of the
residents' interior and exterior movements and activities.
Id. §§ 496.051(4), 496.052(a).   It must be certified by the
American Correctional Association, provide on-site   industry
programs allowing  full-time participation   by residents  of
the facility, and it must be operated pursuant to contract
between the pardons and paroles division and the county or
municipality.  Id. 5 496.052(a), (b).    The county or muni-
cipality may subcontract with a private vendor to construct,
operate, or manage the facility. Id. § 496.052(d).




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     The pardons and paroles division is required to      grant
work program privileges under "such rules, regulations,     and
conditions as provided by this Act." Id. S 496.051.       Rule:
making authority is granted by section 496.054(b)(3),     which
provides that the "Texas Board of Criminal Justice        shall
adopt rules for the conduct of residents transferred      under
this Act."

     Subsection 3(a) of section 496.054, entitled "Quarter-
ing of Work Program Residents,"     is the focus of your
inquiry. It provides the following:

       The pardons and paroles division shall, as the
       need becomes evident, designate facilities    in
       the area of such resident's employment,      for
       quartering residents with work program    privi-
       leges. A resident may not be granted work
       program privileges   until suitable  facilities
       for quartering  such resident have been pro-
       vided in the area where the resident has
       obtained employment or has an offer of employ-
       ment, or in a designated    work facility that
       combines  employment   facilities and     living
       quarters  for the resident and is located
       within 100 miles of that resident's     recorded
       place of residence.   (Emphasis added.)

Subsection 3(a) forbids the relocation  of an inmate to a
work facility unless suitable quarters are available    in
either of two settings. Your questions are directed to the
second set of circumstances.

     You first ask what constitutes a work program  partici-
pant's "recorded place of residence" for purposes of deter-
mining the area to be served by a designated work  facility.
You also ask whether a person in the custody of the pardons
and paroles division may be quartered in a work facility
that is more than 100 miles from the person's      "recorded
place of residence."

     Information  furnished to        indicates that     your
questions are prompted by proposayz of the city of Itasca
and Red River County to construct separate work program
facilities. We are advised that the pardons and paroles
division has computed the eligible work program   population
by construing subsection 3(a) of section 496.054 to provide
that residents of a county are eligible if any part of the
county is within 100 miles of the work program facility.   In
effect, the pardons   and paroles division    construes   the




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    Honorable Dan V. Dent - Page 3   (JM-1212)




    phrase "recorded place of residence"  to mean the county   in
    which the person maintains   residence.  The importance    of
    this decision is illustrated by applying the definition    to
    the competition between Red River County and the city      of
    Itasca.

         A brief submitted by the city of Itasca contains     a
    number of exhibits,  including maps and tables showing the
    number of eligible work program participants    in counties
    within a loo-mile radius of the proposed sites. The maps
    show that only a small portion of Dallas County is within a
    loo-mile radius of Clarksville,  which we understand is the
    site of the Red River County facility. All of Dallas County
    is within a loo-mile radius of Itasca.

         Under the pardons and paroles division's    reading  of
    subsection 3(a), all persons eligible to participate in the
    work program plan who reside anywhere in Dallas County are
    included in the eligible population for the Red River County
    facility. Assuming both facilities are awarded contracts by
    the pardons  and paroles division, any inmate from Dallas
    County assigned to one facility reduces the pool          of
    potential residents at the other.
p
         The city of Itasca's brief frames the issue thus:

            The issue then is whether the fact that the
            loo-mile radius of the Red River site touches
            a small portion  of Dallas County serves to
            bring everyone within that county within that
            radius.

         The term "recorded place of residence" is not defined
    in subchapter  C of chapter 496, nor is the pardons       and
    paroles division given specific guidance   in determining   a
    work program participant's recorded place of residence.    In
    ascertaining the meaning of this language, it is appropriate
    to consider, among other things,   legislative history,   the
    common law, laws on the same or similar subjects, the object
    sought to be attained, the consequences of a particular con-
    struction of the language, and the administrative  construc-
    tion of the term. See Gov't Code § 311.023.

         The legislative history of the work program plan does
    not resolve the issue of the meaning of "recorded place of
    residence."  Subchapter C of chapter 496 was enacted as part
    of a comprehensive  bill reorganizing  and amending  several
    laws governing the criminal justice system. H.B. 2335, Acts
    1989, 71st Leg., ch. 785, s 4.19, at 3523. The provisions




                                  P. 6411
Honorable Dan V. Dent - Page 4    (JM-1212)




authorizing the work program plan were added in conference
committee;  there   is no    recorded  legislative   history
available.  The substance of these provisions was originally
proposed during the same legislative session by a separate
bill, House Bill 2383. The legislative      history of that
proposal suggests one meaning of the phrase "recorded place
of residence."

     In its original form, House Bill 2383 made no reference
to the residence of an eligible inmate or the placement    of
an inmate in a work facility within a specified distance   of
the inmate's residence.     A committee   substitute    first
proposed that an eligible inmate could be placed in a work
facility that was within 80 miles of the inmate's    recorded
place of residence.

     Testimony of  the author of the bill at the public
hearing on House Bill 2383 reveals that the work program
plan was inspired by recommendations      of the Legislative
Budget Board to the Texas Department of Corrections (now the
institutional division).   Public Hearina on H.B. 2383 Before
the House Comm. on Corrections,   71s.t Leg. (April 19, 1989)
(testimony of Rep. Bob Melton) (tape available through House
Technical  Services).    The feature of the work program
receiving the greatest commentary was its effect on families
and dependents  of work program participants.        The work
program, it was reported, would contribute to.the preserva-
tion of the family unit by allowing the inmate to contribute
to his family's support and by allowing the family greater
and closer access to the inmate while he served the
remainder of his sentence. Id.; Public Hearinu on H.B. 2383
Before the House Comm. on Corrections, (April 19, 1989)
(testimony of Ann Lynn McElroy)     (tape available    through
House Technical Services).

     The recording   of this hearing contains   no testimony
confirming the pardons and paroles division's    construction
of the phrase   "recorded place of residence."   Indeed, the
only available public record of the legislative history     of
the work program provisions   suggests that the then 80-mile
radius should be measured from the actual residence of the
inmate's family or dependents    or the actual residence    in
which the inmate intends to settle following release      from
custody.

     The language of subsection 3(a) of section 496.054 was
changed in the conference committee on House Bill 2335 to
its present  form. The pardons    and paroles  division has
supplied us with a copy of a letter from Senator        Bob




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Honorable Dan V. Dent - Page 5     (JM-1212)




McFarland who co-chaired the conference committee that added
the work program provisions   to House Bill 2335.    Senator
McFarland writes that prior to adoption of the final con-
ference committee report he advised a member    of the com-
mittee that he understood the bill would bring Dallas within
the area served by the Red River County facility.     It is
inappropriate, however, to consider post-enactment    state-
ments of legislative intent when construing    an ambiguous
statute. See. e.s    Commissioners' Court El Paso Countv
El Paso Countv Shekiff's   DeDUtieS Ass'n, 620 S.W.2d 9%
(Tex. Civ. App. - El Paso 1981, writ ref'd n.r.e.).

     Where legislative history is inconclusive one authority
concludes that it is appropriate     to decide an issue of
statutory construction   solely with intrinsic aids rather
than legislative history.    2A Singer, Sutherland  Statutorv
Construction 55 48.01, 48.02 (Sands 4th ed. 1984). We think
this rule is inappropriate here, since the Code Construction
Act permits consideration of legislative history in addition
to other factors in ascertaining the meaning of an ambiguous
statute. See Gov't Code § 311.023.      The preponderance  of
these additional factors supports a narrow construction    of
the phrase "recorded place of residence."

     Section 311.023 of the Government Code allows consider-
ation of laws on the same or similar subjects and the common
law in arriving at the meaning of a statute.     It is also
appropriate to examine the meaning of the same or similar
language in other statutes. See Texas Bank & Trust Co. v.
Austin, 280 S.W. 161 (Tex. 1926). When the same or similar
language is employed in the same connection in different
statutes, it will generally be construed to have the same
meaning in both unless a different meaning is indicated.
See Brown v. Darden, 50 S.W.Zd 261 (Tex. 1932). This rule
is particularly applicable where the meaning of the language
has been judicially determined. Id.

     The operative component of    the phrase "recorded place
of residence" is "residence.N~l    For purposes of determining



     1. Our research has shed no light on the meaning     of
the word "recorded" in the phrase "recorded place of resi-
dence." By "recorded," the legislature may have meant the
inmateIs place of residence as reflected in the records   of
the institutional division or pardons and paroles division
                                        (Footnote Continued)




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Honorable Dan V. Dent - Page 6    (JM-1212)




tuition rates at state institutions of higher education,
residence is defined simply as "domicile."        Educ. Code
§ 54.052(a)(l).   The Election Code also defines residence as
qqdomicile,u but adds that the term means    "one's home and
fixed place of habitation    to which he intends to return
after any temporary absence."   Elec. Code g 1.015(a).2   See
also Code Crim. Proc. art. 18.20, 5 l(13) (defining "reZ
dence" in the same terms for purposes of statute governing
interception of oral, wire, or electronic communications   by
law enforcement agencies).

     The courts caution that residence is an elastic     term
that is difficult to define. Mills v. Bartlett, 377 S.W.2d
636 (Tex. 1964). Residence may be temporary or permanent in
nature, but it generally   requires some condition   greater
than mere presence.   See Whitnev v. State, 472 S.W.Zd    524
(Tex. Crim. App. 1971).   Most cases characterize  residence
as a person's place of abode and use the terms residence,
abode, and dwelling  interchangeably.   See. e.a  Snvder 'v.
Pitts, 241 S.W.Zd 136 (Tex. 1951); Houston Priniincf Co.
Tennant, 39 S.W.2d   1089   (Tex. 1931): Whitnev v. Stat::
sunra; Carlos v. State, 705 S.W.Zd 359 (Tex. App. - Beaumont
1986, pet. ref'd): Farmer's Mut. Protective Ass'n of Texas
v. Wriaht, 702 S.W.2d 295, 297 (Tex. App. - Eastland   1985,
no,writ).  These authorities suggest that subsection 3(a) of
section 496.054 requires a measurement far more precise than
simply the county the inmate calls home.

     More important, "residence" takes its meaning in light
of the object or purpose of the law in which it is employed.
Switzerland General Ins. Co. v. Gulf Ins. Co., 213 -S.w.2d
161 (Tex. Civ. App. - Dallas 1948, writ dism'd).     Section



(Footnote Continued)
or some other public source. On the other hand, it may only
mean that the pardons and paroles division inquire of the
inmate where he considers  his residence to be or where he
intends to reside following release from custody.  In light
of the purposes   of the work program, it would     also be
appropriate to consider the residence of the inmate's family
where the inmate is under an obligation to provide   support
to the family.

     2. An inmate of a penal institution does not, while an
inmate, acquire residence at the place where the institution
is located. Elec. Code 5 1.015(e).




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Honorable Dan V. Dent - Page 7   (~~-1212)




496.051 of the Government Code provides an inventory of     the
objectives of the work program plan:

          The board of pardons and paroles division
       of the Texas Department of Criminal Justice
       is hereby authorized to grant work program
       privileges, under the 'Work Program Plan,' as
       hereinafter   provided, which shall include
       programs and procedures for eligible persons
       in the custody of the institutional      division
       of the Texas Department of Criminal Justice
       to contribute   to court-ordered     restitution,
       pavment   of court COStS.     SUDDOrt    for the
       person's familv and denendents. savinas        for
       the oerson's release. and the exoenses of the
       person's room. board. and maintenance,      under
       such rules, regulations, and conditions         as
       provided by this Act.    (Emphasis added.)

Four objectives  of the work program plan relate to the
inmate's preexisting obligations to reimburse the state and
victims of his crimes and to support his family. The fifth
relates to the inmate's preparation     for his return to
society.

     We see no reason why the state's interests in recover-
ing court costs, restitution,   and expenses would require
placing an eligible inmate in a work facility that is within
100 miles  from the inmate's recorded place of residence.
The loo-mile radius of subsection      3(a) therefore   must
pertain specifically to the goals of providing support to
the inmate's family or dependents and easing the inmate's
return to society. We think a narrow, precise   construction
of the phrase  "recorded place of residence"   -- i.e.,  one
that defines   residence as a person's place of abode,
dwelling, or habitation  -- would be more   in keeping with
these goals.                                                      .   .

      As for the consequences  of the pardons   and paroles
division's construction  of "recorded place of residence,"
it might be argued that inconvenience    to the inmate and
families resulting  from the agency's application    of the
statute are minimal  in the case of Red River County when
compared to the ensuing administrative convenience.    While
that may be true in this instance, it is not difficult    to
envision a situation where this interpretation results    in
extreme hardship for those who were intended to benefit from
the loo-mile  radius limitation of subsection    3(a).   For
example, if a secure work facility were to be constructed in




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Honorable Dan V. Dent - Page 8     (JM-1212)




southern Ector County, its eligible inmate population   could
include inmates from as far away as Presidio    and the Big
Bend area, a distance of nearly 200 miles. This variation
is inconsistent  with the goals of supporting     family and
dependents and easing the inmate's transition to freedom.

     An accepted principle of statutory construction is that
the construction placed upon a statute by the agency charged
with its administration is entitled to great weight,       nc
parte Roloff, 510 S.W.Zd 913 (Tex. 1974); State v. Arkansas
Dock and Channel Co., 365 S.W.2d 220 (Tex. Civ. App. - San
Antonio 1963, writ ref'd), especially where contemporaneous,
or nearly so, with the statute itself. Burrouahs       Lvles
181 S.W.2d 570 (Tex. 1944); Stanf rd v. Butler    1:; S W.2d
269 (Tex. 1944); Attorney General gpinion JM-lli2 (199Oj , at
25. On the other hand, the courts will not respect         an
agency's interpretation of a statute that is contrary to the
clear meaning   of an unambiguous   statute.   Texas Health
Facilities Comm'n v. El Paso Medical, 573 S.W.2d 291    (Tex.
Civ. App. - Tyler 1978, writ ref'd n.r.e.); 2 Tex. Jur.   3d,
Administrative Law 5 7.   Furthermore, the courts will not
adhere to the construction of a statute by an administrative
agency where such construction    is clearly   erroneous   or
inconsistent with the enabling   statute. State v. United
Bondinc Ins. Co., 450 S.W.Zd 689 (Tex. Civ. App. - Austin
1970, no writ).

     The legislative history of the work program provisions,
the judicial construction of the term N'residence,t'and the
consequences of the pardons and paroles division's construc-
tion of subsection 3(a) of section 496.054 persuade us that
its construction of the statute  is not consistent with the
goals of the work program plan. An eligible person's    resi-
dence for purposes of the program is, in our opinion,     the
person's actual place of abode, dwelling,    or  habitation.
Accordingly, a person in the custody of the pardons       and
paroles division may not be relocated to a "designated   work
facility" under subsection 3(a) if the facility is more than
100 miles from the actual abode, dwelling, or habitation.

                       SUMMARY

           An eligible person's "recorded place of
        residence" for the purposes    of subsection
        3(a) of section   496.054 of  the  Government
        Code is the person's  actual place of abode,
        dwelling, or habitation.  A person may not be
        placed in a "designated work facility" pur-
        suant to subsection 3(a) if the facility    is




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Honorable Dan V. Dent - Page 9     (JM-1212)




        more than 100 miles from      the actual   abode,
        dwelling, or habitation.




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

LOU MCCRKARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General




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