                                 ATTORNEY GENERAL OF TEXAS
                                               GREG      ABBOTT




                                                 March 152004



The Honorable Joe Warner Bell                              Opinion No. GA-O 166
Trinity County Attorney
P.O. Box 979                                               Re: City council’s authority to prohibit the use of
Groveton, Texas 75 845                                     the municipal jail as a holding facility for persons
                                                           arrested by deputy constables for violations of
                                                           state law (RQ-01 1%GA)

Dear Mr. Bell:

         You ask whether a city council of a Type A general-law municipality may prohibit the use
of a municipal jail as a temporary holding facility for (1) a person arrested by a deputy constable for
violating state law while the person waits to appear before a magistrate, or (2) a person arrested on
a warrant for penal code offenses while the person arranges bond or waits to be transported to a
county facility. ’

         You acknowledge that the answer to your question could be controlled by an interlocal
agreement between a municipality and another jurisdiction. See Request Letter, supra note 1, at 2;
see also TEX. GOV’T CODE ANN. $9 791.001-.032 (Vernon 1994 & Supp. 2004) (concerning
interlocal cooperation contracts). You contend that absent an interlocal agreement the city council
may deny use of the municipal jail as a temporary holding facility for persons arrested by deputy
constables for violations of state law. See Request Letter, supra note 1, at 2.

        You have clarified that your request concerns Trinity, Texas, a Type A general-law
municipality.2 Local Government Code section 341.902 authorizes the governing body of a Type
A municipality to build jails and promulgate necessary rules:

                  (a) The governing body of a Type A general-law municipality may
                  build and establish one or more jails inside or outside the
                  municipality.




         ‘See Letter from Honorable Joe Warner Bell, Trinity County Attorney, to Opinions Division, Office of Attorney
General (Oct. 3, 2003) (on file with Opinion Committee) [hereinafter Request Letter]; Telephone Conversation with
Honorable Joe Warner Bell (Jan. 28,2004) [hereinafter Bell Conversation].

         *Bell Conversation,   supra note 1.
The Honorable Joe Warner Bell - Page 2             (GA-0166)




               (b) The governing body may adopt necessary          rules and appoint
               necessary keepers or assistants for the jails.

               (c) Vagrants and disorderly persons may be confined in a jail on
               commitment by a municipal court judge. A person who fails or
               refuses to pay the fine or costs imposed for an offense may be
               confined in a jail.

TEX. Lot. GOV’T CODEANN. 8 341.902 (Vernon Supp. 2004).            Subsection (c) authorizes using a
municipal jail to confine vagrants, disorderly persons, and persons failing or refusing to pay their
fines and costs, which are uses designed to address primarily local or municipal concerns. See id.
5 341.902( c ) ; see also TEX. GOV’T CODEANN. 4 21.002(c) (Vernon 2004) (authorizing municipal
and justice courts to punish contempt by confinement in jail). However, the list of permissible jail
uses in section 341.902(c) does not purport to be exclusive. See TEX. LOC. GOV’T CODE ANN.
5 341.902(c) (V emon Supp. 2004). Subsection (b)‘s broad grant of rulemaking authority would
allow the city council to promulgate “necessary” rules about municipal jail use, subject to any
overriding requirements elsewhere in the law. See id. 8 341.902(b). Consequently, we next consider
whether the Code of Criminal Procedure, which specifies the duties of arresting officers, magistrates,
and other officials upon a person’s arrest, requires the municipal jail to be available for temporary
detention under the circumstances you describe.

          A constable or deputy constable is a peace officer with the authority and responsibility that
office entails. See TEX. CODECRIM.PROC.ANN. art. 2.12(2) (Vernon Supp. 2004); Wilson v. State,
36 S.W.2d 733,734 (Tex. Crim. App. 1931). After arresting a person, a deputy constable or other
lawful authority “shall without unnecessary delay, but not later than 48 hours after the person is
arrested, take the person arrested or have him taken before some magistrate of the county where the
accused was arrested,” or, as necessary, to the magistrate of a bordering county. TEX. CODEGRIM.
PROC.ANN. art. 15.17(a) (Vernon Supp. 2004). Under the code, magistrates include certain state
officials, county officials, and municipal officials such as mayors, recorders, and municipal court
judges. See id. art. 2.09. When an arrested person is brought before a magistrate, the magistrate
must perform a number of duties set out in article 15.17, such as providing constitutional warnings
and admitting the person to bail as allowed. See id. art. 15.17(a)-(b).

         The code does not specifically address detention while an arrested person waits to appear
before a magistrate.     Article 45 .O15 of the code provides generally that “[wlhenever, by the
provisions of this title, the peace officer is authorized to retain a defendant in custody, the peace
officer may place the defendant in jail in accordance with this code or other law.” Id. art. 45.015.
Article 45.015 contemplates temporary detentions in jail, but does not attempt to specify the
governmental unit or units that must take custody of an arrested person during such detentions.

        Neither the courts nor this office has addressed whether a municipal jail must be available
as a holding facility for persons arrested for state law violations.    In the past this office has
considered the converse of your question, whether a county has a duty under the code to accept
persons arrested for violating municipal ordinances or persons arrested by city police officers for
The Honorable Joe Warner Bell - Page 3               (GA-0166)




violating state law. Article 2.18 of the code provides that “[wlhen a prisoner is committed to jail by
warrant from a magistrate or court, he shall be placed in jail by the sheriff.” Id. art. 2.18 (Vernon
1977). Based on article 2.18, this office has determined that a sheriff could not refuse to accept
persons arrested by city police for state law violations and ordered committed to jail by a magistrate.
See Tex. Att’y Gen. Op. No. DM-3 13 (1995) at 1, 3; see also Tex. Att’y Gen. Op. Nos. JC-03 12
(2000) at 2 (a sheriff has the responsibility for a person arrested by a law enforcement agency other
than the sheriff’s department upon the issuance by a magistrate of a commitment order directing the
sheriff to “‘receive and place in jail the person so committed”‘) (quoting TEX. CODECRIM. PROC.
ANN. art. 16.20 (Vernon 1977)), JM-615 (1987) at 3-4 (county must accept custody of Board of
Pardons and Paroles’ prisoners pending a revocation hearing).

         This office has concluded, however, that article 2.18 does not require a sheriff to take custody
of persons arrested for violating purely municipal law. See Tex. Att’y Gen. Op. Nos. JM-1009
(1989) at 2, MW-52 (1979) at 2-3. The distinction rests in large measure on the lack of “a plain
manifestation of the legislature’s intent that a city may impose such a duty [to confine municipal law
violators] on the sheriff and the county.” Tex. Att’y Gen. Op. Nos. MW-52 (1979) at 2 (citing Ex
parte Ernest, 136 S.W.2d 595, 597 (Tex. Crim. App. 1939)); see also JM-1009 (1989) at 2.

        In Attorney General Opinion JM-15 1, this office determined that a sheriff may but is not
required to take custody of a person arrested by city police for state law violations prior to
appearance before a magistrate. See Tex. Att’y Gen. Op. No. JM-151 (1984) at 2. The opinion
observed that no statute requires a sheriff to take custody of state law violators arrested by municipal
police officers until, under article 2.18, the magistrate has issued a commitment order. See id.

          Likewise, no statute requires municipal authorities to confine in municipal jail a person
arrested by a deputy constable for violations of state law. The legislature has devoted considerable
attention to the county sheriffs responsibilities and county confinement, and has provided for
confinement in county j ail of federal prisoners and prisoners of another county. See generaZZy TEX.
LOC. GOV’T CODEANN. 85 351.001-.015 (Vernon 1999 & Supp. 2004) (concerning county jail
facilities), .041(a) (Vernon 1999) (sheriff is keeper of county jail), .043-.044 (federal and out-of-
county prisoners); TEX. CODECRIM.PROC.ANN. art. 2.18 (Vernon 1977) (custody ofprisoners). But
no statute requires municipal authorities to confine in municipal jail a person arrested by a deputy
constable for violations of state law while waiting to appear before a magistrate, to arrange bond, or
to be transported to a county facility. Absent a clear manifestation of legislative intent in this regard,
we believe that no court would infer such a duty. Consequently, we conclude that a city council, as
the governing body under Local Government Code section 341.902, may promulgate rules
prohibiting use of the municipal jail as a temporary holding facility for persons arrested by deputy
constables for violations of state law. See TEX. LOC. GOV’T CODEANN. 9 341.902 (Vernon Supp.
2004).
The Honorable Joe Warner Bell - Page 4             (GA-0166)




                                        SUMMARY

                        A city council may prohibit the use of the municipal jail as a
               holding facility for persons arrested by deputy constables for state law
               violations while such persons wait to appear before a magistrate, to
               post bond, or to be transported to a county facility.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
