                          Qljffice
                               oftheBttornep
                                           General
                                      &ate of Qexarr
DAN MORALES                             April 241992
 ATTORNEY
      GENERAL



     Honorable Scott W. Johnson                   Opinion No. DM-111
     Reeves County Attorney
     County Courthouse                            Re: Whether the county sheriff or the
     P. 0. Box 749                                county commissioners court has the
     Pews, Texas 79772                            authority to choose a physician and
                                                  schedule the physician to provide medical
                                                  services to inmates incarcerated in the
                                                  county jails (RQ-247)

     Dear Mr. Johnson:

              You have requested our opinion as to whether the county sheriff or the
     county commissioners court is statutorily authorized to choose a physician and
     schedule the physician to provide medical services to inmates incarcerated in the
     county jails. Your question involves extrapolation of those sections of the Local
     Government Code (the code) dividing responsibilities for the provision and main-
     tenance of county jails between the county commissioners court and the county
     sheriff.

             Initially, we note that the powers of the county, exercised through the
     commissioners court, are only those that are expressly conferred upon it and defined
     in the constitution and statutes of this state, or reasonably inferred from a specific
     power. Attorney General Opinion JM-1160 (1990) at 2; see aLro Conrrler v.
     Laughlin, 214 S.W.2d 451,453 (Tex. 1948); Wichita County v. Vance, 217 S.W.2d 702,
     703 (Tex. Civ. App.-Fort Worth 1949, writ refd n.r.e.); Dodrou v. It4a&uZZ, 118
     S.W.2d 621, 623 (Tex. Civ. App.-Waco 1938, writ dism’d w.0.j.). However, if the
     constitution and statutes have conferred a right or obligation on the commissioners
     court, the commissioners court has implied authority to exercise broad discretion to
     accomplish the purposes underlying the constitutional or statutory provision.
     Anderson v. Wood, 152 S.W.2d 1084, 1085 (Ten 1941); Do&on, 118 S.W.2d at 623.
     The legislature has assigned to the county commissioners court the duty to provide
     “safe and suitable” county jails. Local Gov’t Code $351.001(a). Thus, the question
     of whether the commissioners court has authority to choose and schedule a



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Honorable Scott W. Johnson - Page 2          (DM-111)




physician to provide medical services in the county jails turns on whether such a
service is necessary to ensure the provision of “safe and suitable jails.” See Attorney
General Opinion JM-1098 (1989) at 2. The commissioners court is not without
guidance in determining what it must do to comply with its statutory duty to provide
“safe and suitable jails,” for sections 351.002 through 351.015 of the code list various
responsibilities of the commissioners court. Among the duties explicitly conferred
upon the commissioners court is the duty to provide county jails that comply with
sanitation and health requirements. Local Gov’t Code 9 351.010.

        As well as delineating the responsibilities of the county commissioners court,
the code defines the responsibilities of the county sheriff in the operation of the
county jails. Section 351.041 designates the sheriff as “the keeper of the county jail
and requires the sheriff “to exercise supervision and control over the jail.” Id
5 351.041; Attorney General Opinion JM-1098 at 3. In a previous opinion consider-
ing the division of duties between the commissioners court and the sheriff under the
predecessors to sections 351.001(a) and 351.041 of the code, we stated that the
authority of the commissioners court over the jail is limited to providing the jail
adequate funding and broad operational guidelines, and that the sheriff bears
responsibility for the actual operation of the jail. Attorney General Opinion H-1190
(1978) at 3; see a!ro Attorney General opinion JM-1098 at 3.

        The authority and duty to contract, on behalf of the county, for services for
the county jails also is split between the county commissioners court and the county
sheriff. Generally, the commissioners court has sole authority to make contracts
binding on the county unless a statute expressly grants the county sheriff or other
county official the authority to contract for the county. Attorney General Opinion
DM-67 (1991) at 2; Anderson, 152 S.W.2d at 1085. We find no provision in the code
expressly authorizing the county sheriff to contract with a physician to provide
medical services to inmates incarcerated in the county jails, unless the physician is
an employee of the county jail, as opposed to an independent contractor. See Local
Gov’t Code 3 151.003; cf: id 9 85.005(a) (authorizing sheriff, with approval of
commissioners court, to employ prison guards). Thus, only the commissioners court
can contract with a physician for the provision of medical services to the county jails.
See Galveston County v. Dacie, 45 S.W. 798.799 (Tex. 1898) (holding that commis-
sioners court statutorily authorized to contract with physician to provide medical
services to prisoners and paupers). Furthermore, in our opinion, the commissioners
court’s exphcit statutory responsibility to comply with sanitation and health
requirements necessarily implies the responsibility to provide medical services,




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Honorable Scott W. Johnson - Page 3                 IDM-111)




including, if regular services of a physician are required,’ contracting with a
physician. C$ Anderson, 152 S.W.2d at 1086 (holding that, despite fact that statute
places sheriff in charge of court house., commissioners court has authority to employ,
direct, and discharge janitor and elevator operator in court house). On the other
hand, the sheriff’s statutory role as keeper of the county jails authorizes the sheriff
to schedule the physician’s services at the jail.

       Our conclusion is consistent with a rule promulgated by the Texas
Commission on Jail Standards (the commission). The commission, statutorily
empowered to establish minimum standards for all aspects of county jails and
prisoner care with which every county jail must comply, see Local Gov’t Code
Q351.oM, Gov’t Code 5 511.009(a)(l) - (4), has promulgated a rule that requires the
commissioners court of each county to provide

            such medical services as the circumstances and locality of the
            detention facility2 permit, and comparable to what is generally
            available in the county, which may include, but shall not be
            limited to, the services of a licensed physician, the services of
            professional and allied health personnel, and hospital or similar
            services. The commissioners court should provide the services
            of a licensed physician who shall assume the responsibility as the
            director of medical services for the quality and availability of all
            medical services provided to jail inmates, and such physician
            may be the county health officer.




        ‘A comuisioncrs court must provide. the services of a licensed   physicianto thejailsonlyif the
circamstanws and locality of the jails permit. See i&z pp. 3-4 (quo@     37TA.C. 0 273.1).

         %IIC commission’s rules do not spc&aUy d&c Uctention facility: H-r,             the rides
defioe.‘[flacili~as ‘[a]jail or l&up, includingbuild@ and site.” 37 TA.C. 0 253.1. The ndcs define
“@air as “[a] fadlity that b operated by or for a county gowmmcnt for the detention of persons for
morctlula48hourq~oucehargerlwitba~edoflaw~ti~‘                                   Id Tberuksdehe
“@]ockup”
        as “[a]facility that is operated by or for a wlully govum eat for detcation for no loogcr than
72 hours of persons charged with or ccmiucd of crimhl offensss.” Id As both“jail”     and%ckup” arc
facilities designed for detention, we conch& that the term “detention facility’ enwmpasscs both types
of fmiliti~ as wn as o&c? facilities where pcrsoos convi&cd of aiminal offcascs are detained (q!.,
low-risk facilities and county wmdional centers).




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Honorable     Scott   W. Johnson - Page 4            (DM-111)




37 T-A-C. 9 273.1 (footnote added).3 Accordingly, the commissioners court must
provide a licensed physician or physicians to provide medical services to the county
jails, if the circumstances and locality of the jails permit. We note that the
commission’s rule suggests that the physician not only be licensed to practice
medicine. but be competent to “assume the responsibility as the director of medical
services for the quality and availability of all medical services provided to jail
inmates.”

                                        SUMMARY

                A county commissioners court has the authority to contract
            with a licensed physician to provide medical services to inmates
            incarcerated in the county jails. A county sheriff has the
            authority to schedule medical services for the county jails.




                                                            DAN      MORALES
                                                            Attorney General of Texas




          %-he 72d Leglslahtre amended the Code of Criminal Procedure article 104.002(d) to require
.[a] person who is or was a priwner io a wuoty jail and received medical, dental, or health related
scrviecs from a county or a hospital district.. . to pay for suck services whentheyarc rendered.”See
Acts 1991, ?&I Leg., ch. 434,s 1; see alro Acts 1991 l2d Leg., ck. 14,s ZS4(19). If a prisoner cannot
pay for tke smvices because he or she is indigent, the ColmtyJsrcspoasibiity is to assist the prisoner to
apply for reimbursement   pursuantto chapter61 of the Health and Safety Code. Id For purposes of
this opinion, we assume that the newly amended article 104.002(d) only affects the coun~‘s duty to pay
for the medical services prisoners in the county jails receive; the county commhioners court remains
rqxmsible for provkling tke medical services.

        ‘A county slwlff has a duty to keep safely persons committed to the sheriff’s custody. See
AJbd Y.ShuiffofHanisCounty,406F. Supp. 649,669 (SD. Tcx. 1975). We do not address in this
opinion the issue of whether a county sheriff who doubts the competency of a ph+ian with whom the
wramkioners wart has contractedmay seek,in additionto other possibleremedies,a declaratory
j&meat that the physicianis inwmpcteotto rendermedicalservicesio the wwty jails.



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Honorable Scott W. Johnson - Page 5        (DM- 111)




WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEAH.IcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly Oltrogge
Assistant Attorney General




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