                                The Attomry               ~General of Texas

JIM MAlTOX
                                                       October    18.   1985
Attorney General


supwllw court BulldW           nr. 0. L. nccottn                                   opinion   So. J%362
P. 0. Box 1254a                Director
AUdh. lx. 78711.254a           Texas Department of! Corrections                    P.C: Interpretation        of the Texas
512M752501                     P. 0. Box 99                                        Prison. &magement         Act,   article
Telex 9lwS741387
l*lacoplqr 512N75Q2ee
                               Euntsvillc,  Texas   77340                          61840. V.T.C.S.

                               Dear ~nr. ,McCotter:
714 JaCkwfI. She 700
rhll0B. lx. 752024fm                You ask seve:xal questions   regarding    the Texas Prison Management
214i?42eau
                               Act. article  61842, V.T.C.S,   An explanation    of some of the provisions
                               of that act is aecfessary to put your questions     In context.
4824 AlbeftE Ave.. suita IS0
El Paso. TX. 788052793                Tbe act pravides        that     if   the inmate population             of the Texas
915l5333uu                     Department of Corrections         [hereinafter        TDC] reaches 95 percent or tire
                               of Its bouaing capacity,         you must notify        the governor of that fact and
 1001 Texs0. Suits 700
                               credit     30 days      of adminiatratlve            good conduct        time      to certain
 Houston. TX. 77002-3111       categories     of immtes.       ra.,2(!_).~        Tbe act further        provides       t+~$f~
 7lY@5888                      the governor determines          certain      specified     facts    to be true.        be must
                               notify   the Board of Pardons and Paroles                 that emergency overcrowding
                               exists   vltbin    30 days of receiving          your notice.        Id. 12(c).         Once the
 BW Broadway, Suite 312
 Lubbock. TX. 79401-3479
                               governor notlfien        the boaid of the emergency ovetcrovding,                     the board
 ecw747-623a                   umst advance the parole             revlav      and eligibility         date     of the same
                               cstegories      nf-Lmstfsm~tlgat      received       administtatrve      good conduct time
                               under section       2(b).    .Id.     )2(d).      If the urgency           still      exists   60
 4309 N. Tenth. Suite B        days after      tbe Ikovernor’       notification       to the board,        the board must
 MCAltm, lx. 7S501.1685
 512mS2-4S47
                               again advance the parole~review              and eligibility       date of such inmates.
                               Id.    12(e).      If    the  emergency -still           exists     120 days         after    the
                               zernor’s       notification     to the board, the governor must order you to
 200 M0ln Plaza. suite 4ca     make another avard of good conduct time to such inmates.                             Id. 12(f).
 an Antonio, TX. 782052797
                               The emergency ends vhen the inmate population                    is reduced to-&s            than
 51a2254191
                               95 percent of cap,mcity:

  An Equal Opportunity/
  AllirmltlV. ActIon EmPlOW
                                       1. In your letter         you mention    that   a “pool” of inmates        is
                                identified     vhen :sectlon    2(b) is lmplewnted      and imply that the sub-
                                sequent measure:a set out in the act apply only to the inmates            ~~~ .~ wbo
                                                                                                           ~.~~~
                                received     an award of good conduct time under section          2(b).    Sections
                                2(d),     (e),   and (f)   apply    to “those   inmates who are described         by
                                 [section    2(b)]” rather than “those inmates who received         awards of good
                                conduct th        undscr section    2(b).”  Thus, sections    2(d),   (e) , and (f)
                                apply to any ~iucate who ve<s. the +$teria           set onto in sectioii   2(b) at
                                 tbe tire those wasures        are applied.


                                                                        p. 1659
Mr. 0. L. RcCotter     - Page 2     (JIi-362)




                If  aftar    the Sovernor declares     that an emer-
            8-7       overcrowding     situation    exlste,    inmate
            population     is re&uced to less than 95 percent        of
            capacity,     the governor     shall imediately    notify
            the board that      tzhe emergency situation    no longer
            exista.

Id. 12(g).    The effectivemss   of the act is critical   to you because
F    have agreed in the Stipulation    Modifying Crowding Provisions   of
Amended Decree in Ruix ~1 HcCotter that you will         not allow   your
population  to exceed 95 per’cent of capscity.

        Several of your questions    involve the timing of implameutation    of
 these provisions.       First ( you arc coocernedem about the possibility
 that, for example, the Innate population~could       reach 95 percent on ,one
 day, dip below 95 percent       on the next day. and then reach 95 percent
 again several    days later.    You ask ubetber section    2(b) would require
 you to award good conduct time on both of the days that the population
 reaches 95 percent     of capacity    or only on the first    day.  In such a
 situation    you should award good conduct time only on the first      day.

         The act permits    inmates to be released         to prevent       overcrowding,
 not to benefit      the inmatc!f~.    Implementation      of section       2(b) sets the
 statutory     scheme in motion.        After you notify          the governor       of the
 situation,     he has 30 drys to notify             the board that          an emergency
 exists.     If the inmate Ilopulation         is hovering       near 95 percent,         the
 governor can use those 30 days to determine where the population                        will
 stabiliee.       If the inmate population        eventually      settles     at less    than
 95 percent of capacity,       th’e governor need not notify            the board that an
 emergency exists.       Id. 12(c).     If the population        settles     at 95 percent
 or higher.       the gwxor        must notify       the ~board~- that        an emergency .~~
 exists.      Id.    Once the governor         does so,       the statute        prescribes
 various Gres          to be taken and the intervals           at which tbey~~are~fo~~be
  t&en.     The act’s    CrcheduLLng of, ~tha release       mechanisms in a- specific
  sequence and at specifiei.      intervals     indicates    that the legislature          did
 not intend the act to authorize            more frequent awards of good conduct
  time simply because of minor fluctuationsin              the inmate population.

       Thus, once you impl~aaent eectlon 2(b) by awarding administrative
 good conduct time and noMfying      the governor of the size of the inmate
 population,    you would have no authority     or obligation   to implement
 section   2(b) again for st least 30 days.      If the governor did declare
 an emergency, you would ‘have no autbority        to implement section   2(b)
 during    the implemantat~.on   of the   rest   of the cycle.     After   the
 governor declared    the exlcrgency to be over, you would be required       to
 implement section    2(b) again if the population     reached 95 percent. of-
 capacity.

        You also ask whether you could implement section      2(b) again if an
  emergency still     existed    after the~~implementation ~of the steps   pre-
  scribed  in sections     2(d: , (e), and (f).   The act does not provide  for


                                           p. 1660
Mr. 0. L. n&otter       - Page 3    W-362)




a situation in which an emergency still     exists   after those steps have
been taken.   Apparently  tbc? legislsture  assumed that the measures set
out in the ststute   would be sufficient   to reduce the populatioo    below
95 percent.  You are concerned, however, that those measures might not
be adequate   to meet an q nergency because        of the current   rate of
admissions.

       If the inmate populti,t,ion is still              at or above 95 percent         of
capacity      after implamentatlon       of the measures set out in the act, then
the steps must be repeated.               We reach this conclusion         by looking at
the structure          and purpose Iof the act.        Article    61840 does not limit
the number of times that the measures it prescribes                    can be used.     As
we pointed        out previously!,    the statute     would require     you to initiate
the cycle of ameliorative           niizasures~~again-,i*the     ~population reached 95
percent      again after       the -)revio&     emeriGi%y *ad -tinded; ‘~ Because the
statute     requires      the measures to be repeated in the case of successive
emergencies,         it makes no sense to conclude             that the statute     would
prohibit        the     measures   from being       repeated      in  the    case  of an
 intractable       emergency.

        The legislative       bist~Jry shovs that such a construction            co+rts
 with the purpose of the act.             Tbe year before the act was passed, TDC
 bad responded        to emergency overcrovding          by refusing      to admit new
 inmates.       See S.B. No. 127, 68th Leg.,             Senate Committee on State
 Affairs     (March 9, 1983)i -4he sponsors. of the act stated                that their
 bill    allwed    accelerated     release   of non-violent    prisoners    in the event
 of emergency overcrovding           and therefore   provided “a way of keeping the
 front doors open vhile           not jeopardizing    in any way the safety of our
 citixenry.”        Id.   Because! the intent       of the legislature        was to tiil
 emergency overcrowding          and to do so in a way tbit vould keep the front
 door of the prison open, we.tTiitik tb&act              must be-iead    tom reqtiire then-~
  cycle of &rative        measures to begin again if the first           cycle does not
  relieve    the emergency.

        You also  ask when you must begin          the    cycle again.    The act
 specifies   that 60 days Duet elapse between implementation           of sections
 2(e) and 2(f).      The act. also    specifies      that   60 days must elapse
 between Implementation     oE sections     2(f) and Z(g).      Consequently,     60
 days must elapse     after  :implementation     of 2(g) before you start        the
 cycle again by implementing section       2(b).

       In    addition  to yortr questions             regarding   the   timing    of   the
 measures    set out in the act, you ask:

                  May the Texas Board ~of Corrections    delegate         its
              responsibility     to establish   ‘capacity’     to         the
              director     of TDC?

  It is not clear from your letter    whether you are asking              about setting
  the standards  for determio.ing capacity  or applying those             standards.



                                          p.   1661
                        _ Page T4 .(tii3G2) .,-..    =
nr.   0. L. ncCottcr




      The act explicitly       authorizes      the Texas Eoard of Corrections   to
set the standards used       to dlctermine     the number of prisoners the prison
aystam could house:

                  'Capacity'    oeaa:s the greatest   density of prison
              inmates in relation       to space available    for inmate
              housing    in the Texas~. Departant       roof Corrections
              that is    in compliance     with standards     for prison
              population     by the Texas Board of Corrections.

Art.    61840. 51(a)(l).       Ptib:Llc duties    that require    the exercise      of
discretion     must be perforale:d by the officials        designated    by ststute
and cannot be delegated        to others.      Newsom v. Adam, 451 S.U.2d 940,
953 (Tex. Civ. App. - Beannont 1970, no writ);              Moody v. Texas Water
Commission,       373 S.W.2d 793. 797 (Tex. Civ. App. - Austin           1963,,writ
ref'd    n.r.e.).      A state    kloard can, however,      delegate    ministerial
duties.      See Attorney    'General Opinions      V-350 (1947);     WV-66 (1957).
Thus, theboard        cannot delegate    its duty to set standards.       The board
can, however, delegate        Lee ~mini~~erial duties    involved    in determining
capacity,     such as counting beds.

       Finally,      you ask about the meaning of the provision            In the act
 that states      that temporary housing may not be considered           for purposes
 of the calculations          of capacity.      Art. 61840, 51(b).     You point    out
 that the overcrowding           stipulation    in Ruie, which contains      a general
 prohibition       against     the 'use of tempoTry      housing   structures,    does
 permit the use of tents            for roving inmate construction      crews and for
 inmates     displaced     from regular      housing because of renovstions.        You
 ask:

                  May temporcllrJ:_hpusing be considered    in calcula-
              tions   ~for~-~~~-capafity, assuming     such   temporary
              housing meets the standards      set by'the stipulation
              in Ruiz?

         Although the Texas I'rison Management Act. which wss adopted        in
  1983, obviously     did norm-incorporate   the subsequent Ruiz stipulation
  regarding temporary structures.      the Ruiz case was in theminds    of the
  legislators    when they adopted the act.During      a committee hearing   on
  the act the following    exc'~ange took place:

                   SENATORX:       We assume that       the judgment      of
               Judge Justice     requires    that we be brought        into
               compliance without      temporary housing by the first
               of 1984.     I don't     find   'temporary    housing'    de-
               fined.    If we went to a temporary building            like
               YOU see     st    schools     sometimes     for   dormitory
               purposes,   rathtn: than tents,      do you believe     that
               we would have to exclude those then in determining
               whether we were! at the 94 percent or 95 percent?



                                       p.    1662
Mr. 0. L. M&otter         - Page 5      (J’H-362)




                 SRNATOR  Y: I don’t believe    so.              We might     ought
              to make a little l~ntent on that.

                  SENATORX: I’:11 assist          in tbat regard.  What
              you’re     talking    Ilbout here on temporary housing,
              basically,      is the tents   [then being used on prison
              grounds] and three-celling.

                  SENATORY:         Absolutely.

S.B. No. 727, Acts         68th Leg..      Senate Committee        on State     Affairs     (March
9. 1983).

       The legislstlve          history       makes clear that the legislsture                wanted
to prohibit      the permanent use of makeshift                living    facilities        and that
Ruis was the motivation               for doing so.         The set wss not intended               to
Gde        the use of roviq;                Inmate construction        crews or the use of
makeshift     structures        in exigent circumstances.             See art. 61840, 12(h)
(providing      that the act does not apply in case ofdisaster).                              Accor-
dinsly,     we   think      the    ac’ :    would   permit   the    inclusion       of    makeshift
structures     in calculatfone            of capacity    In some out-of-the-ordinary              and
short-lived       situations.          Of course,      merely reaching        or exceeding         95
percent of capacity           is not such sn exigent circumstance.                   One point of
the set is to prohibit              tt.e expansion of capacity by use of makeshift
houring . The propriety               csf counting makeshift         structures        in capacity
depends on the particular                 facts of any given situation,            and the Board
of Corrections        would have to make the necessary                 determination         as part
 of Its duty to define              “capacity.”        Although we cannot say that the
 Rufr eettlement          itself       LOBIncorporated        in the act,          the Board of
Corrections       should bear :Ln mind the legielature’s                    desire       to resolve
 the overcrowding           issue      b,cing litigated       in Ruia when it              sets   any
 standards    for determining            ‘capacity.

                                           SUMMARY

                   If the inmal:a population    of the Texas Depsrt-
               ment of Corrections    reaches 95 percent   of capacity
               on one day, dips below 95 percent        the next,   and
               reaches   95 percent    sgain on the third day, the
               director   of tt#e Texss Department of Corrections
               should award a~$dnistrstive     good conduct time only
               on the first  duly the population   reaches 95 percent
               of capacity.    V.T.C.S. art. 61840, 12(b).

                    The Texas Department of Corrections   mst  start
                the cycle    of curative  measures  set out in the
                Prison Hansgenent Act again if the first       cycle
                fails  to reduce prison population  below 95 percent
                of capacity.



                                              p. 1663
tlr.   0. L. McCotter      - Psge 6         (JM-362)




                The Board of Corrections        may delegate    the
             minfsterial  aspects of determining   capacity  to the
             Texss Department of Corrections.

                     In some circumstances,        the Board of Corrections
             msp include       makeshift      housing in Its standards    for
             determining       capac.lty.




                                                       Attorney   General   of Texas

 TOW GREEN
 First   Assistant      Attorney      G~nreral

 DAVID R. RICRARDS
 Executive Assistsnt Attorney             Genersl

 ROBERTGRAT
 Special Assistant         Attorney     IGeneral

 RICK GILPIN
 Chairman, Opinion         Committee

 Prepared    by Sarah Woelk
 Assistant    Attorney Genersl

 APPROVED:
 OPINIONCOMMITTEE                  ~.

 Rick Gilpin.   Chairman
 Colin Carl
 Susan Garrison
 JLO Moellinger
 Jennifer  Riggs
 Nancy Sutton
 Sarah Woelk




                                            p. 1664
