Mr. Charles E. Walker, Jr.              Opinion No. JM-615
General Counsel.
Board of Pardons and Paroles            Re: Authority of the Board of
P. 0. Box 13401. Capitol Station        Pardons and Paroles to con-
Austin, Texas   78711                   tract with counties for having
                                        prisoners incarcerated under
                                        the authority of warrants
                                        Issued by the board

Dear Mr. Walker:

     The Texas Board of Pardons and Paroles [hereinafter the Board] is
considering contracting with a county to provide for the incarceration
of prisoners arrested and held pursuant to board-issued warrants. You
ask primarily whether the Board holds the authority to enter into such
a contract. Your question involves two related issues: whether the
Board may pay the county to incarcerate the Board's prisoners and
whether the county may refuse to jail the Board's prisoners if the
Board refuses to pay for their maintenance.

     No person or agency holds the authority to make a contract which
is binding on the state, except when authorized to do so by the Texas
Constitution or statutes. Tex. Const. art. III, 5944, 49; State v.
Ragland Clinic-Eospital. 159 S.W.Zd 105, 106 (Tex. 1942). Thus, the
power of the Board to enter into the contemplated contract depends
                                                            See State
upon the legislation which created and empowered the Board. --
v. Ragland Clinic-Hospital, 159 S.W.2d at 106.

     Article IV, section 11. of the Texas Constitution initially
created the Board of Pardons and Paroles. This provision grants the
governor the power, conditioned upon the Board's recommendation, to
grant reprieves and commutations of punishment and pardons. In 1983,
article IV, section 11. was amended by vote of the people to make the
Board of Pardons and Paroles a statutory rather than a constitutional
agency. To parallel the passage of this amendment, the legislature
amended sections 12(d) and 21(a) of article 42.12 of the Texas Cbde of
Criminal Procedure to give the board the sole authority to revoke
paroles and issue warrants for the return of a paroled prisoner. Acts
1983, 68th Leg., ch. 232, at 974. The Code of Criminal Procedure
emphasizes that the Board of Pardons and Paroles is the agency of
state with exclusive authority to grant paroles and gives the Board




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Mr; Charles E. Walker, Jr. - Page 2   (JM-615)




exclusive power to supervise persons released on parole.   Code Grim.
Proc. art. 42.12, Pl.

     Article 42.12, section 21(a), of the Code of Criminal Procedure
provides:

            A warrant for the return of a paroled prisoner,
         a prisoner released to mandatory supervision, a
         prisoner released on emergency reprieve or on
         furlough, or a person released on a conditional
         pardon to the institution from which he was
         paroled, released, or pardoned may be issued by
         the Board in cases of parole or mandatory super-
         vision, or by the Board on order by the Governor
         in other cases, when there is reason to believe
         that he has committed an offense against the laws
         of this State or of the United States, violated a
         condition of his parole, mandatory supervision, or
         conditional pardon, or when the circumstances
         indicate that he poses a danger to society that
         warrants his immediate return to incarceration.
         Such warrant shall authorize all officers named
         therein to take actual custody of the prisoner
         and, at the discretion of the Board, detain the
         prisoner or return him to the institution from
         which he was released.       Pending hearing, as
         hereinafter provided, upon any charge of parole
         violation or violation of the conditions of
         mandatory   supervision,    the   prisoner   shall
         remain incarcerated. If the Board is otherwise
         authorized to issue a warrant under this sub-
         section, the Board may instead issue to a prisoner
         a summons requiring the prisoner to appear before
         the Board or its designee for a hearing under
         section 22 of this article. The sumons must
         state the time, place, date, and purpose of the
         hearing. (Emphasis added).

     Article 42.12, section 21(a), of the code authorizes the Board to
issue warrants and summons for the return of a paroled prisoner to the
institution from which he was paroled.       The provision does not
expressly authorize the Board to require the county to incarcerate
persons in county jail on the basis of board-issued warrants.
Incarceration near the place where the alleged parole violation
occurred. however. is now necessary because of the United States
Supreme Court's decision in Morrissey v. Brewer, 408 U.S. 471 (1972).
In Morrissey, the Court held that release on parole is a form of
liberty that may not be denied without minimal due process. Due
process requires that a reasonably prompt prerevocation hearing be


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Mr. Charles E. Walker, Jr. - Page 3   (JM-615)




afforded the alleged parole violator near the place where the alleged
parole violation occurred. The Court did not prohibit or require that
the prisoner be incarcerated pending the hearing; it merely required
the hearing. The Code of Criminal Procedure, in section 21(a), of
article 42.12, requires that the prisoner shall "remain incarcerated"
pending a hearing.    Consequently, you ask whether the Board may
require the county sheriff to jail the Board's prisoners and whether
the county could refuse to jail the Board's prisoners.

     Attorney General Opinion JM-111 (1983) discussed the Morrissey
case and concluded that local law enforcement authorities must hold an
alleged parole violator until the constitutionally required prerevoca-
tion hearing is completed or legally waived. The opinion did not
directly address whether the Board of Pardons and,Paroles may require
the detention. Attorney General Opinion JM-111 indicated that it
would be "inappropriate for local law enforcement authorities to
release such a person prior to the conclusion or waiver of the local
revocation hearing."    (Emphasis added).   Although this result is
correct, see Attorney General Opinion M-918 (1971), it       has been
suggested that the opinion could be read to imply that the Morrissey
case requires that county sheriffs incarcerate alleged parole
violators in county jail. This is not the case. See Fowler v. Cross,
635 F.2d 476,~480 (5th Cir. 1981). It is the Boazs     action, not the
sheriff's action. which initially deurives a parolee of his liberty
and thereby threatens a due process interest protected in Morrissey V.
Brewer, supra. See Fowler v. Cross, supra. Even if the county could
legally refuse toincarcerate alleged parole violators, the Board must
still provide the coustitutionally required prerevocation hearing.

     Section 21(a) of article 42.12 does not expressly authorize the
Board of Pardons and Paroles to require the county to jail the Board's
prisoners pending a prerevocation hearing.       The provision does,
however, authorize the issuance of warrants 'which authorize "all
officers named therein to take actual custody of the prisoner. . .T
(Emphasis added.) The purpose of the Board's warrant is to effect the
return of the prisoner -to-the institution from which the prisoner was
released. The prerevocation hearing required in Morrissey is now an
essential prerequisite to that return. Consequently, although article
42.12 does not expressly address the due process questions raised in
Morrlssey, the Board has the implied authority to comply with the due
process requirements of Morrissey and to require the county sheriff to
accept the Board's prisoners pending prerevocation hearings. -See
Attorney General Opinion E-312 (1974).

     The county may not refuse to accept such prisoners even if the
Board refuses to pay for the prisoners' maintenance. Article 5116,
V.T.C.S., provides, in part:




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Mr. Charles E.*Walker, Jr. - Page 4    (JM-615)




             (a) Each sheriff is the keener of the d~-~
                                                     iail of
                                                          ~~
          his‘ county. He shall safely 'keep therein all
          prisoners committed thereto by lawful authority,
          subject to the order of the proper court aad shall
          be responsible for the safe keeping of such
          prisone&.   (Emphasis added).       - -

See Douthit v. Jones, 641 F.2d 345 (5th Cir. 1981); Attorney General
opinion MU-398 (1981); see.also Code Grim. Proc. art. 2.18; Attorney
General Opinion M-918 (1971). As the agency of the state with
exclusive authority over the parole system, the Board of Pardons and
Paroles necessarily constitutes "lawful authority" for purposes of
article 5116, V.T.C.S. Accordingly, subsection (a) of article 5116
requires county sheriffs to incarcerate the administrative releasees
of the Board of Pardons and Paroles. See also V.T.C.S. art. 6873
(each sheriff shall execute all process and precepts directed to him
by legal authority).

     Similarly, article   2.18   of   the   Code   of   Criminal   Procedure
provides:

             When a prisoner is committed to jail by warrant
          from a magistrate or court, he shall be placed in
          jail by the sheriff. It is a violation of duty on
          the part of any sheriff to permit a defendant so
          committed to remain out of jail, except that he
          may, when a defendant is committed for want of
          bail, or when he arrests in a bailable case, give
          the person arrested a reasonable time to procure
          bail; but he shall so guard the accused as to
          prevent escape. (Emphasis added).

-See Attorney General Opinion JM-151 (1984).
       Attorney General Opinion JM-151 concluded that a county jail is
required to accept state statute violators arrested by municipal
police only after a magistrate or court has committed them to jail.
Article 2.09 of the Code of Criminal Procedure lists those persons who
are magistrates; it does not expressly include the Board of Pardons
and Paroles. Because the authority of the Board to revoke parole is
an executive function. a related case which discusses whether the
governor is a magistrate provides an analogue. The court in Ex parte
Quinn. 549 S.W.2d 198 (Tex. Grim. App. 1977) dealt with article 15.02
of the Code of Criminal Procedure, a provision that requires that
warrants be signed by a magistrate. The court noted that article 2.09
does not list the governor as a magistrate, but indicated that article
51.13 is a special statutory provision which controls over the more
general    article 15.02.  Id. at 201-02. Article   51.13 specifically
authorizes the governor trslgn     warrants of arrest for extradition




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Mr. Charles E. Walker, Jr. - Page 5    (JM-615)




purposes. For similar reasons, because article 42.12 of the code
specifically authorizes the Board of Pardons and Paroles to Issue
executive warrants, such warrants have the status of warrants issued
by magistrates for purposes of article 2.18. Thus, under article
2.18, counties must accept the Board's prisoners.

     The Board lacks the legal authority to pay the county to
incarcerate the Board's prisoners. A state agency cannot bind the
state to a contract unless that agency is authorized to do so by the
constitution or by a pre-existing statute.        State v. Ragland
Clinic-Eospital, 159 S.W.2d 105, 106 (Tex. 1942) (citing the Texas
Constitution, article III, sections 44 and 49); see also Attorney
General Opinion MW-465 (1982). No statute directs the Board to pay
for the maintenance of its prisoners.

     It should be noted that a county sheriff must perform his
statutory duties even if his office is underfunded. See Attorney
General Opinion E-595 (1975). This opinion does not addressindividual
conflicts which may arise in particular situations because of other
constitutional principles or statutory provisions. See, e.g., V.T.C.S.
art. 5115.1; Attorney General Opinion MW-398 (1981) (jail standards);
Douthit v. Jones, supra (false imprisonment and due process implica-
tions) ,

                             SUMMARY

             Pursuant to article 42.12, section 21(a), of
          the Texas Code of Criminal Procedure, the Texas
          Bpard of Pardons and Paroles may direct the county
          sheriff to incarcerate the Board's prisoners.
          Under article 2.18 of the code and article 5116,
          V.T.C.S., the county may not refuse to accept the
          Board's prisoners. The Board lacks the authority
          to enter into a contract to reimburse the county
          for the cost of jailing the Board's prisoners.




                                        JIM     MATTOX
                                        Attorney General of Texas

JACRHIGRTOWER
First Assistant Attorney General

WARY RRLLER
Executive Assistant Attorney General




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Mr. Charles E. Walker, Jr. - Page 6   (m-615)




RICR GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




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