                                 The Attorney General of Texas
                                                    March 8, 1983
 JIM MATTOX
 Attorney General


                                Mr. Don R. Stiles                      Opinion No. JM-3
 Supreme   Court Buildin        Executive Director
 P. 0. BOX 1254S                Texas Adult Probation Commission       Re: Whether a district adult
 Austin. TX. 78711.2S4S
                                P. 0. Box 12427                        probation department mey use
 5121475-2501
 Telex 91om74.12a7
                                Austin, Texas   78711                  judicial district funds to
 Telecopier   512l47502SS                                              purchase real property to use
                                                                       as a colnunity based correc-
                                                                       tional facility
 1607 Main Sl.. Suite 14Ul
 oallrr. TX. 7sM1-4709
 21417424944                    Dear Mr. Stiles:

                                    You have asked these questions:
 4824 Alberla Ave.. Suite 160
  El Paso. TX. 799052793
“‘533-3484
                                             1. Can a district adult probation department
                                          utilize judicial district funds to purchase land
                                          and/or buildings for use by the department as a
 1220 Oallas Ave.. Suite 202              c-nity    based correctional facility other than a
 Houston. TX. 7700269SS
                                          jail or prison? If the ansver is yes. who would
 7 13mio.0666
                                          hold title to the ,land and/or building?

 606 Bromluay. Suite 312                     2. Can a district adult probation department
 Lubbock. TX. 79401.3479                  utilize judicial district funds to build a
 8061747~5238
                                          building, or to purchase and place a manufactured
                                      !   building, either mobile or fixed and attached to a
 4309 N. Tanlh. Suite 6                   foundation, upon land leased from a county,
 McAllan. TX. 7&W-105                     private citizen. company or corporation to be used
 5121682.4547                             by   the   department   as   a   colPunity   based
                                          correctional facility other than a jail or prison?
 200 Main Plaza. Suite 409
                                          If the answer is yes. who would hold title to the
 San Antonio. TX. 762052797               building?
 512122s.4191
                                You have Informed us that the term “judicial district funds” refers to
                                the “stnte aid” which is authorized by article 42.121 of the Code of
                                Criminal Procedure.

                                     Article 42.12 of the Code of Criminal Procedure created adult
                                probation departments in the judicial districts of this state. Sec.
                                10(a). Section 10(g) of article 42.12 provides in pertinent part:

                                          It shall be the responsibility of the county or
                                          counties comprising the judicial district or




                                                          P. 7
Mr. Don R. Stil~es- Page 2   (JM-3)




          geographical area    served by    such district
          probation   department   to   provide  physical
          facilities. equipment, and utilities for an
          effective and professional adult probation -and
          adult   colPmunity-based correctional  service.
          (Emphasis added).

     In Attorney General Opinion H-1218 (1978). this office construed
this provision. vhich at that time was part of section 10(f) of
article 42.12, in the following manner:

          In our oDinion. this Droviaion reauirea the
          counties to provide. from-their own funds and not
          from probation fees. 1:he physical facilities,
          equipment. and utilities need;ed for the probation
          office. All other expenses 5re to be paid from
          district funds. which include Drobation fees.
          Testimony before a legislative comktee   indicated
          that Senate    Bill No.    39 made     the county
          responsible   for   facilities,   utilities,   and
          eauiDment. while the state was to be resDonsible
          for 'salaries. benefits. supplies, travel. and
          training. Tape of public hearing on S.B. 39,
          House Criminal Jurisprudence Comittee. March 29.
          1977.   See also Joint Advisory Committee on
          Governmental   Operations   -    Subcomittee    on
          Corrections, supre. (Emphasis added).

See also Attorney General Opinion Mw-92 (1979).          This opinion
technically dealt only with the responsibility of the counties
vis-a-vis "probation offices," but its reasoning is equally applicable
to an "adult community-baaed correctional service." since this term is
contained in the same portion of section 10(g) that refers to a
"probation" service.    Accordingly, we believe that section 10(g)
imposes upon the counties which comprise "the judicial district or
geographical area served by such district probation department" the
responsibility of providing, inter alia, the "physical facilities"
which are necessary for an "effective and professional . . . adult
community-baaed correctional service."     1n our opinion, buildings
needed to house comnity-b5sed   correctional progra5raand services and
the land upon which these buildings are situated constitute "physical
facilities" within the meaning of section 10(g). It therefore follows
that the responsibility for providing them rests with the county or
counties to which section 10(g) refers.

     As we read your correspondence to this office, you essentially
achnowledge thet the counties are responsible for providing "physical
facilities" for an effective adult cormnunity-based correctional
service. You contend, however, that state-aid furnished to judicial




                                      P. 8
I.

 .   .




         Mr. Don R. Stiles - Page 3   (JM-3)




         districts under article 42.121 may also be used to establish such a
         facility. Admittedly. there is language in this article which can be
         read as supporting this conclusion. In our opinion. however. the
         legislature did not intend this language to be construed this broadly.

              Section 1.01 of article 42.121 provides:

                      The purposes of this article are to make
                   probation services available throughout the state,
                   to   improve   the   effectiveness of    probation
                   services. to provide alternatives to incarceration
                   by providing financial aid to judicial districts
                   for the establishment and improvement of probation
                   services and cormsunity-basedcorrectional programs
                   and facilities other than jails or prisons. and to
                   establish    uniform    probation   administration
                   standards. (Pmphasis added).

         -See 14.01 (definition of "state-aid").   Section 4.03 provides:

                      The district judge or judges in each judicial
                   district shall present data to the commission.
                   determined by the cotiasion, which is necessary
                   to determine the amount of state financial aid
                   needed for use in maintaining and improving
                   probation     aervicaa     and    community-based
                   correctional programs and facilities other than
                   jails or prisons in the district.

         Section 4.05 provides in part:

                      (b) The fiscal officer designated for the
                   district shall deposit all state-aid received
                   under this article in a special fund of the county
                   treasury, to be used solely for the provision of
                   adult probation services and community-based
                   correctional programs and facilities other than
                   jails or prisons.

              You suggest that authority for adult probation departments to use
         state-aid for the purposes which you described in your questions can
         be found in the foregoing provisiona. which authorize the use of such
         aid   for.  inter alla. the "establishment" of community-based
         correctional "facilities." As noted, however, we disagree.

              We first note that the legislative history of article 42.121
         suggests that the legislature did not Intend "state-aid" to be used to
         provide "physi~cal facilities" in which to house community-based
         correctional services and programs.      -See Code Construction Act.




                                            P. 9
Mr.   Don R. Stiles - Page 4   (JM-3)




V.T.C.S. art. 5429b-2. §3.03(3) (legislative history may be considered
in construing code provision). In testimony on the proposed statute
before the House Committee on Criminal Jurisprudence, a representative
of the Texas Correctional Association stated:

           The [Adult Probation Commisaionl would he a
           standard-setting agency that would subsidize
           probation services in each judicial district and
           each   judicial   district would    maintain   its
           autonomy.   All judicial districts would have
           adequate probation services for the supervision
           and control of felons and misdemeananta. The
           county'a reaponaibflity would be to provide
           facilities. equipment, and utilities. while state
           aid would provide salaries, benefits, supplies,
           mileage for travel, training, etc. This effort
           parallels to a great degree the functions of the
           Texas Education Agency as it relates to the
           standard-setting agency and the distribution of
           funds while having local control and autonomy with
           the local district. (Emphasis added).

Tape of public hearing on S.B. No. 39. supra.          This testimony
indicates that the legislature's intent in enacting articles 42.12 and
42.121 was to assign to both the counties and the state (acting
through the Adult Probation Commission and, in turn, the judicial
districts) certain specific responaibllitiea connected with the
provision of community-based correctional services. and that the
provision of "physical facilities" needed for such services la among
the specific responsibilities of the counties. This was, of course.
the thrust of Attorney General Opinion H-1218 (1978).

     We also believe that if the legislature had intended to allow
state-aid to be used to build or purchase "physical facilities" for
cmnity-baaed    correctional programs. it would have provided answers
to the many questions which would arise from this practice, &.     (1)
may a probation department use state-aid to purchase land or buildings
at any time. or must it    wait until a county certifies that it la
unable to provide necessary "physical facilities"? (2) if a judicial
district may make such purchases. in whose name would title be held?
The fact that    article 42.121 in no way addreaaea these issues
persuades us that its provisions should not be interpreted as broadly
as you suggest. In this context, we also note that although section
1.01 does contain language which arguably supports your conclusion,
the language of section 4.03 cuts    the other way.    This provision
states that the state-aid for which the judicial districts may apply
is that needed for use in "maintaining and improving" probation
services and community-based programs and facilities. "Hainteining




                                        p. 10
    Mr.   Don R. Stiles - Page 5   (JM-3)




    and improvi"g," in     our opinion,        neither    denotes   nor   connotes
    "purchasing" or "building."

         In short, we conclude that the legislature moat likely intended
    article 42.121 state-aid to be used to establish, maintain, or improve
    probation and corrmpunity-based
                                  correctional programs and services. not
    to purchase or build "physical facilities" in which to house them.
    The provision of these facilities is among the specific reaponsi-
    bilities of the counties. Attorney General Opinion H-1218 (1978).

                                   SUMMARY

                   Judicial diatricta are not authorized to use
                state-aid obtained under article 42.121 of the
                Code of Criminal Procedure to purchase land or
                buildings in which to house community-baaed
                correctional programs and services

                                              dzo#&



-                                              JIM        MATTOX
                                               Attorney    General of Texas

    TOM GREEN
    First Aaaistant Attorney General

    DAVID R. RICHARDS
    Executive Aasiatant Attorney General

    Prepared by Jon Bible
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Susan L. Garrison. Chairman
    Jon Bible
    Rick Gilpin
    David Harris
    Jim Hoellinger




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