                         @ffice of toe Elttornep Q3enerat
                                      &ate    of IBexas
DAN MORALES                            February 6,1992
 ATTORNEY
      GENERAL
    Honorable Richard Barajas                  Opinion No. DM-86
    District Attorney
    83rd Judicial District of Texas            Re: Responsibility of a sheriff with
    P. 0. Box 639                              regard to a private detention facility
    Fort Stockton, Texas 79735                 operated under contract with a county
                                               (RQ-70)

     Dear Mr. Barajas:

             You ask about the statutory and constitutional responsibility of a county
     sheriff in regard to the operation of a detention center. You state that Pecos County
     has contracted with a private company to operate a detention facility.

            Your first two questions focus on language in the contract between the
     county and the private vendor providing that the private vendor is an independent
     contractors and, subject to the terms of the contract, that the private vendor shall
     have “the sole right to supervise, manage, operate, control, and direct the
     performance of the details incident to its duties” under the contract. Operation &
     Management Setvs. Agreement art. VI, 5 6.1, at 12 (1989). Essentially, you ask
     whether that language is inconsistent with the sheriffs constitutional and statutory
     responsibilities.

             Subchapter F of chapter 351 of the Local Government Code governs county
     contracts with private entities for jail facilities. Section 351.182 of the Local
     Government Code authorizes a county to contract with a private vendor for the
     “financing, design, construction, leasing, operation, purchase, maintenance, or
     management” of a jail facility. The sheriff must approve such a contract, but the
     sheriff may not unreasonably withhold approval. A contract made under section
     351.182 must:

                    (1) require the private vendor to operate the facility in
               compliance with minimum standards adopted by the
               Commission on Jail Standards and receive and retain a
               certification of compliance from the commission;




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              (2) provide for regular, on-site monitoring by the sheriff;

              . . . .


              (10) contain comprehensive standards for conditions of
          confinement.

Lmal Gov’t Code 9 351.103.

        A county sheriff has no constitutional authority or responsibility in regard to
the housing of county inmates. See Tex. Const. art. V, 0 23, id. art. XI, 9 2; 35 D.
BROOKS,COUNTY& SPECIALDISTRICTLAW 8 20.48 (Texas Practice 1989). In
regard to statutory duties, the specific provisions of subchapter F of chapter ,351 of
the Local Government Code would prevail over any general provisions setting out
the duties of the county sheriff in regard to the housing of county inmates. Thus, the
contract provision giving the private vendor “the sole right to supervise, manage,
operate, control, and direct the performance of the details incident to its duties”
under the contract would be inconsistent with the sheriffs statutory responsibilities
only if it were inconsistent with the statutorily required contract provision for
regular, on-site monitoring by the sheriff. We do not find the provisions to be
facially inconsistent.

        Section 351.102 allows the county to contract for “operation” and
“management” of a detention facility, and section 351.103 requires that the contract
provide for “regular, on-site monitoring by the sheriff.” In that context, we think it is
clear that “monitoring” means that the sheriff ,has authority to evaluate the vendor’s
performance of the contract. We do not believe it means that the sheriff has
authority to make or overrule decisions about the details of day-to-day operation.
The contract at issue here reflects that interpretation of the term “monitoring” by
providing the sheriff shall provide his own check lists for monitoring the quality of
the operator’s performance of the contract. Operation & Management Servs.
Agreement art. XII, 3 12.6, at 24 (1989). Thus, the contractual provision that the
private vendor shall have “the sole right to supervise, manage, operate, control, and




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direct the performance of the details incident to its duties”’ under the contract is not
on its face inconsistent with the sheriffs authority to monitor operation of the
facility. The resolution of a specific conflict between the sheriff and the private
vendor that arose in the actual execution of the contract would be a matter, in the
first instance, for the parties to the contract.

         Your last question is whether the sheriff or the Texas Commission on Jail
Standards (hereinafter the “commission”) may withhold certification of a private
prison facility, or whether the commission may de-certify a facility, if 1) it fails to
meet the operationa standards of the commission, or 2) jailers employed in the
facility are not certified pursuant to section 415.0541 of the Government Code or by
the Texas Commission on Law Enforcement Officer Standards and Education.
Thus, the various provisions of the Government Code that apply to the United
States Code’s certification of a county jail apply to a private prison facility.

       A sheriff has no responsibility for certification of a jail. Also, section 351.103
of the Local Government Code requires “the private vendor to operate the facility in
compliance with minimum standards adopted by the [commission] and receive und
retain a ce@ication of compliance from the commission.” (Emphasis added.)
Furthermore, chapter 511 of the Government Code gives the commission a duty of
continuing supervision over the facility.

         In addition to its duty to adopt rules establishing various kinds of minimum
standards for the operation of a “county jail” pursuant to section 511.009 of the
Government Code, the commission also is charged with a duty to act in the event a
facility does not comply with such minimum standards:

               If the commission finds that a county jail does not comply
           with state law or the rules, standards, or procedures of the
           commission, it shall report the noncompliance to the county
           commissioners and sheriff of the county responsible for the
           county jail and shall send a copy of the report to the governor.




          1The eontract speei6es that the operator is re.sponsiile for traiaing employee&
                                                                                        stanlngthe
facility, food service, laundry services, traqortation,   telephones,health service+recreationand
exereise$ vi.htiO& CnmmissaTies, safety, sanitation,libraries, inmate correspondence, religious
smites, and security. Id. art. V.




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G&t Code 9 511.011. Presumably, a county which receives such information may
then proceed to enforce its contract with the private vendor, since the contract rmLsI
require the private vendor to comply with minimwn commission standards. See
Local Gov’t Code 8 351.103. But the commission itself may, in the event of
noncompliance, also act. Under section 511.012 of the Government Code, the
commission is authorized to “prohibit confinement of prisoners in the county jail.”
In the alternative, the commission may, pursuant to section 511.014 of the
Government Code, “bring an action in its own name to enforce or enjoin a violation
of Subchapter A, Chapter 351, Local Government Code, or a commission rule,
order, or procedure.”

        Individuals employed as jailers by a private detention facility were the subject
of the inquiry in Attorney General Opinion JM-1152 (1990). That opinion
concluded that jailers employed by a private vendor are not “county jailers” under
the terms of section 85.005 of the Local Government Code. Rather, such contract
personnel are included within the ambit of those “other county jail personnel” who
are regulated by the provisions of section 415.0541 of the Government Code. That
statute declares:

              (a) The commission [on Law Enforcement Officer
          Standards and Education] shall establish minimum physical,
          mental, educational, and moral standards for persons employed
          or used in the operation of a county jail.

               (b) The commission’s authority and -power ~applies. to all
          county jail personnel. The commission shall have additional
          staff to carry out this section.

              (c) Not later than one year after the date that the
          commission establishes standards for county jail personnel, each
          county must have all jail personnel certified by the commission,

               (d) A standard requiring a person to have a degree of
          fo&     education or the equivalent does not apply to a person
          who was employed or whose services were used in the operation
          of a county jail on August 29,1977.

Gn the basis of this language, Attorney General Opinion JM-1152 held that “the
commission [On Law Enforcement Officer Standards and Education] has authority


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to ‘establish minimum physical, mental, educational and moral standards’ for the
certification of a ‘contract county jailer.“’ Attorney General Opinion JM-1152 at 3.
Section 415.0541 gives each county a one-year deadline to comply with the
minimum standards established by the Commission on Law Enforcement Officer
Standards and Education for other jail personnel, including jailers employed by a
private vendor. If the facility fails to comport with the deadline imposed by section
415.0541, the Commission on Jail Standards may reasonably conclude that the
facility “does not comply with state law,”as required by section 511.009, and proceed
accordingly.



              The only duty of a sheriff with regard to a detention facility
         operated by a private vendor pursuant to a contract with his
         county is to exercise “regular, on-site monitoring” of the facility.
         The Commission on Jail Standards has a continuing duty under
         chapter 511 of the Government Code to monitor a private
         detention facility for compliance with its standards. If a facility
         fails to comply with the one-year deadline for certification of its
         jailers by the Commission on Law Enforcement Officer
         Standards and Education, the Commission on Jail Standards
         may conclude that the facility “does not comply with state law”
         under chapter 511, and apply certain remedies against the
         facility.




                                                   DAN      MORALES
                                                   Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General




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JUDGE ZOLLIE STEAKLEY (Ret)
Special Assistant Attorney General

RENEAHIcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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