                               @ffice of the LZWmiep @eneral
                                            Sitate of tEexm
DAN MORALES
 :,TTOHNCI
        CENEH,,L

                                                May 7, 1997




   The Honorable Richard J. Miller               Opinion No. DM-439
   BelI County Attorney
   P.O. Box 1127                                  Re: Whether a juvenile court’s authority under Family
   Belton, Texas 76513                            Code section 5 1.12X$)to “control the conditions and
                                                 terms of detention and detention supervkion” super-
                                                 sedes tbe teams of a county contract with a’private
                                                 corporation regardiig the operation of the county
                                                 juvenile detention facility (RQ-921)

   Dear Mr. Miller:

           On behalf of Bell County (the “couuty”), you ask about the relationship between Family Code,
   section 51.12(b) - wbicb gives tbejuvede cant of a county the authority to “control the conditions
   and terms of detention and detention supervision” - and a county contract authorizing a private
   corporation to operate the county juvenile detention kility. We conclude that section 5 1.12(b) is
   intended to authorize the juvenile court to control the conditions of the county juvenile facility and
   that any contract entered into by the county for the operation of a county juvenile facility is void to
   the extent it is inconsistent with section 5 1.12(b).

          Section 5 1.12 of the Family Code provides in pertinent part as follows:

                  (b) The proper authoritiea in each county shall provide a suitable place of
              detention for children who are parties to proceed&s under this title, but the
             juvende cowl shall wnfrol the wna&ions and ferms of detention and
              ahntion supervision and shall petit          visitation with the child at sll
              reasonable timea;

                  (c) In each county, thejua& of thejuwmile CWMand the members of the
             juvenile boardshaIlpersv.mally inpecf he detention facilities and any public
              or private secure correctional kilities used for post-adjudication confinement
              that are located in the county and operated under the authority of the juvenile
              board at least annually and shall certia in writing to the authorities
              responsible for operating and giving tinancial support to the facilities and to
 The Honorable    Richard J. Miller - Page 2        (DM-439)




            the Terra~Juvenile Probation Commission that they are suitable or unsuitable
            for the detention of children in accordance with:

                   (1) the requirements of Subsections (a), (fJ and (g); and

                   (2) minimum professional standa& for the detention of children in pre-
                 adjudication or post-adjudication secure continement promulgated by the
                 Texas Juvenile Probation Commission or, at the election of the juvenile
                 board, the current standards promulgated by the American Correctional
                 Associatioa

               (d)Noc~dshallbeplacedina~tythathasnotbeenoertifiadunder
            Subsection (c) of this section as suitable for the detention of children. . . .

In addition, we note that section 141.042(a)(4) of the Human Resources Code requires the Texas
JwenileprobationCommissiontoadoptreasonablerulesthatprovide~             standards for juvenile
detention facilities.

        The Bell Cow Juvenile Board (the “juvenile board”) is governed by section 152.0201 of
the Human Resources Code and is composed of the county judge, the district judges of the county,
the judge of County Court at Law No. 1 and the judge of County Court at Law No. 2. You Worm
usthatthejwenileboardhssdesignatedthecountycourtatLawNo.                 lasthejuvenilewurtforthe
county. SeeFamcode~51.oQ@)~eachcounty.thecounty’sjuvenileboardshalldesignateone
or more district, uiminal district, domestic relations, juvenile, or county courts or county courts at
law as the juvenile court _ . . .“).

       You refer to the contract at issue as a %anagement agreement.“* You state that the
management agreement authorizes the private corporation to operate, maintain and manage the
juvkle detention fkility according to standah of the Texas Juvenile Probation Commission, subject
to the approval of the juvenile board. “The corporation is to develop its own written policies,
procedures, and operation manuals concerning operation of the fhcility ‘and juvenile supervision for
The Honorable Richard J. Miller - Page 3           (DM-439)




which it is responsible’ under the agreement, which pohc& must comply with legal requirementsn
The private corporation is responsiile for “day-to-day management of the facility, stafiing employee
training, program services for juvenile detainees (with the advi[c]e and consent of the Juvenile
Board), and providing seanity and supervision of the juveniles.” You also state that “[t]he only role
spelled out in the Management Agreement for the designated Juvenile Court is one of inspection.”
Given this background, you ask the following series of questions:

            what is the specific authority of the designated Juvenile Court. . .? Jfthe
            quired policies oftbe private corporation are adopted by the Juvenile Board,
            is the Juvenile Court empowered by Section 51.12(b) to ,order di&re.nt
            acdvities or policies independent of those adopted by the Juvenile Board, so
            long as minimum standards are met? Does the Juvenile Court have the
            statutory authity to specifically dirt& all aspects of the day-today operation
            of the detention fhcility within tbe standards established by the Juvenile
            Probation Commission, regardless of any agreement between a private
            corporation and the Juvenile Board and Commissioners Court? How does
            [section 5 1.12(b)] w-exist with other statutes . _ _ kven that it seems] the
            legislature intended that the Juvenile Board play the primary role in opemting
            and supervismg detention thcilities?

        Your query requires us to construe the language in section 5 1.12(b) tbat gives the juvenile
court of a county the authority to “control the conditions and terms of detention and detention
ape&ion.” W&your query, you enclose a letter briefwritten on behalf of the county by a private
attorney expressing the view that this language in section 5 1.12(b) merely authorizes the juvenile
court to control the terms and wnditions of detention of the particular juveniles coming before the
court, but that it givea the juvenile wurt no general supervisory authority over the juvenile detention
tkdity~ mhe extent oftbe Juvenile &arrt’s authority is limited to those juveniles directly under the
hut’s jurisdiction, and only then to the extent newssary to insure that the thcility to which these
spedicjuvdes       are enhuted is operated in accordance with law.” A letter Tom the Texas Juvenile
Probation Commission, however, rejects this narrow interpretation of the language and insists that
section 51.1’4b) givesjuvenile wurta control over the conditions and terms of detention and that to
exercise this authority juvenile courts “must have some abiity to intluence operations of the facility.”

        We believe that the Texas Juvenile Probation Commission has the better of the two positions.
The relevant language in section 5 1,12 was enacted in 1973 when the legislature adopted title 3 of
the Family code.2 As the following wmmentary explains, when title 3 was adopted, juveniles were
0th detained in county jails controlled by the wunly sheriff when understood in this contact, it
is apparent that the intent of language at issue was to transfer supervisory authority for the detention




       =SseAdofMay25.1913.63dLeg.,      RS.. ch 544. $1.1973 Tex. Ga. Law 1460.1465-66.




                                             p.   2450
 The Honorable Richard J. Miller - Page 4          W-439)




 ofjuveniles Sam the sherift; the official responsible for supervising and controlling wunty jails, to
 tbejuvenile court:

                 Subsection(b), like prior Texas law, Tex Rev. Civ~Stat. Ann. art. 2338-1,
             3 17, places tbe responsiii    on local authorities to provide the space needed
            for the detention of children. The proper authorities in each county clearly
            includes the wmmissioners court; however, if the detention facility is in the
            county jail the proper authorities would also include the shetiE. The juvenile
            court wntrol of “tbe conditions and terms of detention and detention
            supervision” is new to Texas law. The concept, however, is an old principle
            in juvenile proceedings: Thejuvenile~wurt judge is the ultimate authority for
            the entire juvenile process and he, not the sheriff, should control the
            wnditions of detention and detention supervision Subsection (b), therefore,
            supersedes the general rule of Tex. Rev. Civ. S&t. Ann art. 5 116 that “the
            ShaitTshall exe       a supervision and wntrol over the jail,” to the extent that
            a county jail is used as a place of detention for children. . . .

Robert 0. Dawson, Delinquent Chitien and Chik&en in Needof Supervision: Lk#man ‘s Com-
ments to fide 3 of the Texas Family GM& 5 TEX. TECH. L. REV. 509,530-3 l(1974).

         In enacting the language at issue in 1973, the legislature clearly intended to vest juvenile
 courts with authority over wunty fkilities used to detain juveniles. It is now the case that juveniles
 across the state are housed in juvenile detention facilities rather thau wunty jails.’ As the same
 wmmentator wrote in 1990, “When Title 3 was enacted in 1973, many children in pretrial detention
 status were detained in wunty jails. Today, no children are detained in county jails but are instead
.detalned in local or Regionaldetention tkilitiea. That makes some of the provisions of subsection (b)
 dating to county jails obsolete.” Dawson, supm note 3, at 1776. While the original impetus for this
 language in section 5 1.12(b) may no longer exist, we have no basis to conclude tbat the language has
 been impkdly repealed.

        Fm we note that although the above-quoted wmmentsry suggests that the sole purpose of
the language mgardhgjuvenile court wntml of “the wnditions and terms of detention and detention
supervision” was to give juvenile wurts authority over the conditions of the detention ofjuveniles
in wunty jails, section 5 1.12(b) vests juvenile wurts with this authority witbout regard to whether
a particular facility is operated by the sheriffor the wmmissioners wurt. This suggests legislative
intent to vest juvenile wurts with authority over the conditions of detention in all county facilities
used to detain juveniles. The legishtture last revisited section 5 1.12 in 1995, amending subsections
(a) and (c), but did not see fit to amend subsection (b).’



        kobal 0. DawsoqTide 3. Deli?quenfChi,Wrn andCJd&n in NeedofSuprvis/on,21 TEC.TWX L. l&V.
1747,1776(19¶0).

       ‘SeeAdoft&y27,1%‘5,74thLcg.,RS.,ch.      262.5 12.1995Te~.OenLaws2517.2523
The Honorable Richard J. Miller - Page 5           (nu-439)




          We also note that the authority granted to the juvenile court in subsection (b) is not
 inwnsistent with the reqrirement in subsection (c) that %e judge of the juvenile wurt and the
 members of the juvenile board shall personslly inspect the detention facilities” and certify their
 suitability for the detention of children The duty of the juvenile wurt and the juvenile board annually
to inspect and certify to a ikcility’s wmpliice with statutory requirements and minimum standards
selected by the juvenile board does not preclude the juvenile court t?om exercising authority over
      . .
co&rons and terms of juvenile detention 365 days of the year. Furthermore, the express inclusion
ofthejudge ofjuvenile court in inspection in subsection (c). which dates from 1975: indicates that
the h&datum intended to ensure tbat the juvenile wurt judge participate in the iwpection of juvenile
detention fhcilities even if the judge is not a member of the juvenile board.6 In the many times the
legislature has amended subsection (c) since 1975, it has lefi this express and separate reference to
the juvenile court unsltered.7~

         Finany, we note that since 1973 the role ofjuvwile bosrds in the administration of the wunty-
leveljuvwilejustiw system has been signitlcantly expanded across the state.* In additioq today, as
a general rule, the juvenile wurt judge must be a member of the juvenile board.9 It may bethe case
tbat the legislature has failed to amend subsection (b) to delete the juvenile wurt’s separate statutory
authority to control the county juvenile detention facility because it views this authority as fully
wnsistent with the juvenile wurt*s role as a member of the juvenile board. While the separate
statutory grants of authority with respect to juvenile detention facilities in Family Code section 5 1.12,
The Honorable Richard    J. Miller -   Page 6        (DM-439)




sabedions @) and (c) (and other statutes’? may be “unwieldy and unmanageable” in Fkll County,
it is for the legislature, not this office, to assess whether the authority granted to juvenile courts in
subsection (b) is outdated or universally unworkable and to amend the statute if necessary

         In sum, section 51.12(b) v&s the juvenile court with authority over the wunty juvenile
detention Mlity sepamte and apart 6omtbe authority oftbejuvenile board and wmmissioners wurt.
A county is not authorized to enter into a contract that conflicts with state law. A wunty contract
with a p&ate wrpomtion regarding the operation of a juvenile detention kility is void to the extent
itwntlictswithsection    51.12(b).”

                                        SUMMARY

               Family code se&on 51.124b) vests a wunty juvenile wurt with authority
           ova uxmtyjuvde        detention facilities separate and apart 6om the authority
           of the juvenile board and wmnuss~   - ‘oners wurt. A county contract with a
           private corporation regarding the operation of a juvenile detention facility is
           void to the extent it wntlicts with section 5 1.12@).




                                                 DAN MORALES
                                                 Attorney General of Texas

JORGE VEGA
First As&ant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R Grouter
Assktant Attorney General




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