                                ATTORNEY             GENERAL           OF TEXAS
                                              GREG         ABBOTT




                                                 February 1,2007



The Honorable Rodney Ellis                                        Opinion No. GA-05 12
Chair, Committee on Government             Organization
Texas State Senate                                                Re:     Whether the Texas Department of
Post Office Box 12068                                             Criminal Justice may adopt a rule or policy
Austin, Texas 7871 l-2068                                         requiring mandatory testing of incoming
                                                                  offenders for human immunodeficiency virus
                                                                  (RQ-05 1S-GA)

Dear Senator Ellis:

        You ask whether the Texas Department of Criminal Justice (the “TDCJ”) may adopt a rule
or policy requiring mandatory testing of incoming offenders for human immunodeftciency  virus
(“HIV”).’

        Chapter 492 of the Government Code describes the powers and duties of the Texas Board
of Criminal Justice. The Texas Board of Criminal Justice (the “Board”) governs the TDCJ. TEX.
Gov’TCODEANN. $5 491.001(l), 492.001 (Vernon 2004). The Board is authorized to “adopt rules
as necessary for its own procedures and for operation” of the TDCJ. Id. 3 492.013(a). Chapter 493
of the Government Code describes the organization and operation of the TDCJ.                 Among
the divisions within the TDCJ are “the institutional division” and “the state jail division,” Id.
5 493,002(a)(2), (4). The institutional division is directed to “operate and manage the state prison
system.” Id. 5 493.004. The state jail division is required to “operate and manage state jails to
confine defendants described by Section 507.002.” Id. 5 493.0051.*

          In construing a statute, we must give effect to the Legislature’s intent. See Albertson s, Inc.
v. SincZai+, 984 S.W.2d 958, 960 (Tex. 1999). In order to ascertain that intent, we begin by
construing a statute according to its plain language. See In re Cunales, 52 S.W.3d 698,702 (Tex.
2001). Section 501.054(i) of the Government Code addresses HIV testing of inmates in the
institutional division and provides:


          ‘Letter from Honorable Rodney Ellis, Chair, Senate Committee on Government Organization, to Honorable
Greg Abbott, Attorney General of Texas (Aug. 2, 2006) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].

          %ction 507.002 provides that “[t]he state jail division may confine in a state jail felony facility authorized by
this subchapter defendants required by a judge to serve a term of confinement in a state jail felony facility following a
grant of deferred adjudication for or conviction of an offense punishable as a state jail felony.” TEX. GOV’T CODE ANN
3 507.002 (Vernon 2004).
The Honorable Rodney Ellis - Page 2             (GA-0512)




                         The institutional division may test an inmate confined in a
               facility operated by the [institutional]          division for human
               immunodeficiency virus at any time, but must test an inmate who is
               eligible for release before the inmate is released from the division. If
               the institutional division determines that an inmate has a positive test
               result, the division may segregate the inmate from other inmates. The
               institutional division shall report the results of a positive test to the
               Department of State Health Services for the purposes of notification
               and reporting as described by Sections 81.050-81.052, Health and
               Safety Code.

TEx. GOV’T CODE ANN. 5 501.054(i) (Vernon Supp. 2006) (emphasis added). This section was
amended by the Seventy-ninth Legislature in House Bill 43. See Act of May 25,2005,79tb             Leg.,
R.S., ch. 1184,s 1,2005 Tex. Gen. Laws 3891,389l.         As the Senate sponsor ofthis bill, you state
that it “required mandatory HIV testing for all offenders prior to the release of an offender.” Request
Letter, supra note 1, at 1. In addition to this requirement, House Bill 43 also added language that
permits the institutional division of TDCJ to test an inmate for HIV “at any time.” Act of May 25,
2005,79th Leg., R.S., ch: 1184, § 1,2005 Tex. Gen. Laws 3891, 3891; TEX. GOV’T CODE ANN.
5 501.054(i) (Vernon Supp. 2006).

          Because the plain language of section 501.054(i) permits the institutional division to test an
inmate confined in any of its facilities “at any time,‘,’the Board may, but is not required to, adopt a
rule or policy that compels mandatory IIV testing for incoming offenders to the institutional
division.

         We next ‘consider chapter 507 of the Government Code, which relates to the state jail
division. Another portion of House Bill 43 amended section 507.023(b) of the Government Code
to read as follows:

                         The state jail division shall adopt a policy for handling a
                defendant with AIDS or HIV and shall test a defendant for AIDS or
                HIV in the same manner and subject to the same conditions as apply
                to the institutional division under Section 501.054.

TEX. GOV’T CODE ANN. $507.023(b) (Vernon Supp. 2006). The only change made to this section
was the substitution of the phrase “shall test” for “may test.” Act of May 25,2005,79th Leg., R.S.,
ch. 1184, 3 1, 2005 Tex. Gen. Laws 3891, 3891. The state jail division, like the institutional
division, is governed by the Board, and the Board is authorized to “adopt rules as necessary for its
own procedures and for operation” of the TDCJ. TEX. GOV’T CODE ANN. $5 492.001, .013(a)
(Vernon 2004). ‘The plain language of section 507.023(b) applies to the state jail division the terms
of section 501.054(i), which as we have noted permits, but does not require, the Board to adopt a
policy requiring mandatory HIV testing for incoming offenders.

        We conclude that the Board is authorized to adopt a rule or policy requiring mandatory
testing for human immunodeficiency virus of incoming offenders in both the institutional division
and the state jail division.
The Honorable Rodney Ellis - Page 3           (GA-0512)




                                       SUMMARY

                         The Texas Board of Criminal Justice is authorized to adopt
               a rule or policy requiring          mandatory       testing for human
               immunodeficiency       virus of incoming offenders in both the
               institutional division and the state jail division,

                                             Very truly yours,




RENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
