   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN CORNYN




                                            November 6,200l



Mr. Terry Julian                                       Opinion No. JC-0429
Executive Director
Texas Commission on Jail Standards                     Re: Whether the Texas Commission             on Jail
P. 0. Box 12985                                        Standards may inspect construction documents
Austin, Texas 7871 l-2985                              relating to the installation of fire sprinklers at a
                                                       jail facility (RQ-0390- JC)


Dear Mr. Julian:

          On behalf of the Texas Commission on Jail Standards (the “Commission”), you seek an
opinion from this office concerning section 9A of repealed article 5115.1 of the Revised Civil
Statutes, preserved and given effect as part of section 5 11.009 of the Government Code. See TEX.
GOV’T CODEANN. 9 511.009 (Vernon 1998), as amended by Act of April 6,1989,71st                Leg., R.S.,
ch. 20, 9 1, sec. 9A, 1989 Tex. Gen. Laws 297. Specifically, you ask whether the Commission, in
fulfilling its duty under section 9A to “inspect a facility,” see id., to determine whether there are
areas where fire sprinkler heads should not be placed, may examine the blueprints for a structure not
yet erected as well as examining structures already built.* The interpretation of “inspect[ion]” to
include the inspection of such documents has, as you inform us, been the one by which the
Commission has operated since the legislation was passed in 1989. We believe, in light of the
legislative history of the measure and in light of the Commission’s general duty to “review and
comment on plans for the construction and major modification or renovation of county jails,” see
TEX. GOV’T CODEANN. 4 511.009(7) (V emon 1998) that the Commission’s interpretation of its
authority in this regard is a reasonable one. We further conclude that a contrary interpretation would
lead to an absurd result. Accordingly, we concur in the Commission’s interpretation of the breadth
of its authority to inspect a jail facility.

        Section 9A provides in relevant part:

                 (a) On the request of a sheriff, the commission shall inspect a facihty
                 to determine whether there are areas in the facility in which fire
                 sprinkler heads should not be placed as a fire prevention measure. .
                 . .




       ‘Letter from Mr. Terry Julian, Executive Director, Texas Commission on Jail Standards, to Honorable John
Comyn, Texas Attorney General (June 8,200l) (on file with Opinion Committee) [hereinafter Request Letter].
Mr. Terry Julian     - Page 2                          (JC-0429)




                  (b) If the commission determines that fire sprinkler heads should not
                  be placed in a particular area within a facility, neither a county fire
                  marshal nor a municipal officer charged with enforcing ordinances
                  related to fire safety may require the sheriff to install sprinkler heads
                  in that area.

Act of April 6, 1989, 71 st Leg., R.S., ch. 20, 5 1, sec. 9A, 1989 Tex. Gen. Laws 297 (emphasis
added). Section 9A was added to article 5 115.1 of the Revised Civil Statutes by Senate Bill 289 of
the Seventy-first Legislature. In Senate Bill 1044, the Seventy-first Legislature also repealed article
5 115.1 of the Revised Civil Statutes and codified it as part of the Government Code. See Act of May
11,1989,71st Leg., R.S., ch. 212,§ 3.03,1989 Tex. Gen. Laws 918,968. SenateBill 1044provides
that such a repeal “does not affect an amendment . . . of the statute by the 71 st Legislature . . . . The
amendment . . . is preserved and given effect as part of the code provision that revised the statute .
. . .” See Act of May 11, 1989, 71st Leg., R.S., ch. 212, 8 1.02, 1989 Tex. Gen. Laws 918.
Accordingly, although section 9A is not incorporated in section 5 11.009 of the Government Code,
it is given effect thereby. See also TEX. GOV’T CODEANN. 4 3 11.03 1(c) (Vernon 1998) (“The repeal
of a statute by a code does not affect an amendment, revision, or reenactment of the statute by the
same legislature that enacted the code. The amendment, revision, or reenactment is preserved and
given effect as part of the code provision that revised that statute so amended, revised, or
reenacted.“).

          As subsection (b) of section 9A makes clear, the Commission has the authority to determine
the placement of any fire sprinkler heads. The question of the meaning of “inspect[ing] a facility,”
for the purposes of subsection (a), is ultimately whether the Commission’s authority in this regard
may be exercised in the planning phase of a jail facility, or only after the facility has been built. If
“inspect[ing] a facility” is narrowly construed, it means the Commission may only examine an
existing jail to determine whether the placement of certain sprinkler heads is permissible.           If,
however, a facility may be inspected as it is being designed, the Commission may prevent the
installation of certain sprinkler heads.

           The bill analysis for Senate Bill 289, which enacted section 9A, explains the background   for
it thus:

                  During the construction of a new county jail facility, the county
                  follows construction standards set by the Texas Commission on Jail
                  Standards. The Commission also sets regulations with regard to fire
                  prevention.   Because of the many suicide attempts that occur in
                  prison or jail facilities, local authorities with the approval of the
                  Commission would like to use their discretion with regard to the
                  placement of overhead fire sprinklers in individual cells.

HOUSECOMM.ONCOUNTYAFFAIRS,
                         BILLANALYSIS,Tex. S.B. 289,71 st Leg., R.S. (1989) (emphasis
added).
Mr. Terry Julian - Page 3                            (JC-0429)




         In a public hearing on the bill on February 21, 1989, Senator Lyons, its author, said in
describing it:

                 In recent years county authorities have had several problems relating
                 to the overcrowding situations in jail facilities. One of the problems
                 has been misuse by inmates of fire sprinkler heads in jail cells. Many
                 times inmates have actually committed suicide by hanging from fire
                 sprinkler heads in jail cells, have also used cigarettes or lighters and
                 held those up to sprinkler heads causing them to go off. Senate Bill
                 289 allows the Commission on Jail Standards to have the final
                 discretion as to [where] sprinkler heads should be placed in county
                jail facilities.

Hearings on Tex. S.B. 289 Before the Senate Comm. on Intergovernmental            Relations, 71st Leg.,
R.S., (Feb. 21, 1989) (emphasis added).

         Senator Lyons then read into the record portions of a letter from the sheriff of Dallas County,
describing the problem the legislation was designed to address:

                Dallas County is aggressively attempting to deal with its ballooning
                inmate population.    In 1988, the citizens of this county approved a
                multimillion dollar bond issue to build a new 2300 bunk detention
                facility. During the architectural and engineering development of
                this project, we discovered that current fire safety codes will require
                the installation of a sprinkler system. I feel the application of these
                fire codes to our detention system to be perplexing and unnecessary.

Id. (emphasis   added).

         As the emphasized language makes clear, the legislature’s attention had been directed to the
issue of where and whether such sprinkler heads ought to be included in the design of new buildings
as well as where and whether they should be placed in existing buildings; and Senator Lyon’s
statement makes plain the intent that the power to decide where such sprinkler heads may be
positioned lies with the Commission.    Indeed, a question to Senator Lyons from an unidentified
speaker suggests more certainty that the Commission can deal with projected placements than
existing ones:

                 This is addressing the construction phase. Does it make a provision
                for the removal of existingfire sprinkler head systems? . . . .What you
                 want to actually do is provide that it can also provide for removal.

Id. (emphasis   added).
Mr. Terry Julian - Page 4                           (JC-0429)




         It has been, as you inform us, the long-standing interpretation of the Commission that its
powers with respect to sprinkler head placement include the power to reject such placements in the
planning stage. See Request letter, supra note 1, at 2. In our view, that interpretation is entirely
consonant with the legislative history recited above. It is moreover consistent with the duty of the
Commission to “review and comment on plans for the construction and major modification or
renovation of county jails,” see TEX. GOV’T CODEANN.8 5 11.009(a)(7) (Vernon 1998), pursuant to
which the Cornmission has adopted chapter 257, of title 37 of the Texas Administrative Code,
entitled “Construction Approval Rules.” See 37 TEX. ADMIN.CODE$0 257.1-.ll (2001). That the
inspection of a facility for the purposes of section 9A includes the inspection of the plans for its
design or construction     appears to us, in this light, an entirely reasonable conclusion.        “The
construction of a statute by an agency charged with its execution is entitled to serious consideration
so long as the construction is reasonable and does not contradict the plain language of the statute.”
Simplex Elec. Corp. v. Holcomb, 949 S.W.2d 446,447 (Tex. App.-Austin 1997, pet. denied).

          Moreover, a contrary interpretation in this instance would lead to an absurd result. That is,
if the Commission had veto power over the positioning of sprinkler heads only in existing buildings,
a county could be forced by local fire codes to install such sprinkler heads in the construction, only
to have the Commission immediately thereafter demand their removal, imposing both the cost of
installation and that of retrofitting on the county. This would be wasteful and unreasonable. We are
charged by the Code Construction Act with presuming that “a just and reasonable result is intended”
by a statute. TEX. GOV’T CODEANN. 0 3 11.021(3) (Vernon 1998). Concluding, therefore, that the
Commission has authority to inspect not only existing jail facilities but also blueprints for new or
renovated facilities is consonant with the Commission’s long-standing interpretation of this authority
as well as the legislative history of the statutory grant, and avoids the absurd consequences of a
contrary interpretation.
Mr. Terry Julian - Page 5                         (JC-0429)




                                     SUMMARY

                       The Commission on Jail Standards, in fkdfilling its duty to
               inspect a facility to determine whether there are areas where fire
               sprinkler heads should not be placed, has the authority to examine
               blueprints for a structure not yet constructed as well as to examine
               structures already built.




                                             JO’HN    CORNYN
                                             Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
