Can the Tennessee Corrections Institute adopt new minimum jail standards without going through formal rulemaking?

Subject

Opinion No. 11-63, Changes to the Tennessee Corrections Institute's Minimum Standards for Local Correctional Facilities, August 26, 2011

Plain-English summary

The Tennessee Corrections Institute (TCI) is the state agency that sets minimum standards for county jails, lock-ups, and workhouses. It is governed by a board of control made up of the governor (or designee), the commissioner of correction, the criminal-justice department chairs at Tennessee State and Middle Tennessee State Universities, a department of correction employee, and two sheriffs appointed by the governor. The board asked the AG two questions:

1. Could it, by majority vote, simply replace TCI's existing minimum standards with the American Correctional Association's (ACA's) Core Jail Standards?
2. Could it make those changes without going through the Uniform Administrative Procedures Act (UAPA)?

The AG's answers were yes to #1, no to #2.

Question 1. Tenn. Code Ann. § 41-4-140(a) gives the TCI authority to establish minimum standards for local jails and says those standards "shall approximate, insofar as possible, those standards established by the inspector of jails, federal bureau of prisons, and by the American Correctional Association's manual of correctional standards, or such other similar publications as the institute deems necessary." The ACA Core Jail Standards, developed with the American Jail Association and National Sheriffs' Association, were exactly the kind of publication this statute contemplates. So the board could adopt them. There is one carve-out, however: Tenn. Code Ann. § 41-4-140(f) (added by 2009 Tenn. Pub. Acts ch. 242) specifically requires that the cell-square-footage standards be those from the ACA's performance-based standards for adult local detention facilities, as amended by the 2008 standards supplement. The board has to use that specific standard for cell size, even if the Core Jail Standards default to something different.

Question 2. No, TCI cannot skip the UAPA. The UAPA defines a "rule" as "each agency statement of general applicability that implements or prescribes law or policy or describes the procedures or practice requirements of any agency." Tenn. Code Ann. § 4-5-102(12). Minimum jail standards are agency statements of general applicability that implement law, affect private rights (of officials, contractors, and the general public), and are not within any of the enumerated UAPA exceptions. The internal-management exception in § 4-5-102(12)(A) doesn't apply because the standards reach beyond the agency. The "concerning inmates of a correctional or detention facility" exception in § 4-5-102(12)(G) is narrower than this; it covers individual inmate-treatment statements, not the structural standards governing how facilities must be built and run. UAPA compliance requires public notice, public hearing in some cases, AG approval, and filing with the Secretary of State (§§ 4-5-202, -203, -206, -211). Skip any of those and the rule is void under § 4-5-216.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Both Tenn. Code Ann. § 41-4-140 and the UAPA have been amended over the years. The ACA's Core Jail Standards have also been revised. Anyone working on current TCI standards work should check the current text and current ACA materials, and run any new rule through the UAPA process.

Background and statutory framework

TCI structure. Tenn. Code Ann. § 41-7-105 establishes the TCI board of control (governor or designee, commissioner of correction, two university criminal-justice chairs, a DOC employee, two governor-appointed sheriffs).

Standard-setting authority. Tenn. Code Ann. § 41-4-140(a) authorizes the TCI to establish minimum standards for local jails covering physical facilities; correctional, treatment, education, and rehabilitation programs; and safekeeping, health, and welfare of inmates. Standards "shall approximate, insofar as possible" federal Bureau of Prisons, ACA, and similar published standards.

Cell square footage. Tenn. Code Ann. § 41-4-140(f), added by 2009 Tenn. Pub. Acts ch. 242, locks in the ACA performance-based standards for adult local detention facilities as amended by the 2008 supplement as the mandatory cell-size standard.

ACA Core Jail Standards. Developed with the American Jail Association and National Sheriffs' Association as a national minimum set of jail standards. Covers safety, security, administration, and care including health care, programs, and activities.

UAPA definition of rule. Tenn. Code Ann. § 4-5-102(12): "[E]ach agency statement of general applicability that implements or prescribes law or policy or describes the procedures or practice requirements of any agency." Includes amendments or repeals of prior rules. Excludes internal-management statements (subsection A), declaratory orders, intra-agency memoranda, general policy statements substantially repetitious of existing law, certain highway and curriculum statements, insurance rate filings, and "[s]tatements concerning inmates of a correctional or detention facility."

Procedural requirements. Public notice (§ 4-5-202), public hearing in certain circumstances (§ 4-5-203), AG approval (§ 4-5-206), Secretary of State filing (§ 4-5-211). Failure to comply renders the rule void (§ 4-5-216).

The "concerning inmates" exception is narrow. Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 311-12 (Tenn. 2005); Heritage Early Childhood Development Center, Inc. v. Tennessee Department of Human Services, 2009 WL 3029595, at *5-7 (Tenn. Ct. App. 2009). The AG read these cases to confirm that broad regulatory standards for facilities do not escape the UAPA simply because the facilities happen to house inmates.

Common questions

Did the TCI eventually adopt the ACA Core Jail Standards?

The opinion does not commit TCI to a particular adoption schedule; it confirms the board has authority to do so via UAPA rulemaking. Whether and how TCI actually carried out an adoption is a separate question about agency action over time.

What happens to county jails that don't meet the standards?

TCI standards drive jail inspections and certification, which in turn affect a county's eligibility for housing state inmates and for state subsidies. The opinion does not detail enforcement consequences but treats standard-setting as substantive enough to trigger UAPA protections precisely because it affects external rights.

Can a single ACA standard be adopted by reference?

The opinion doesn't go into incorporation-by-reference mechanics. Tennessee's UAPA generally permits incorporation by reference if the procedural requirements (notice, hearing, filing) are still satisfied. Anyone drafting an actual TCI rule should check current UAPA-compliant incorporation procedures and the Secretary of State's filing standards.

Why does the 2009 law lock in the 2008 cell-size standard?

The General Assembly chose that specific ACA standard, possibly because it represented a stable baseline at the time of enactment. Any board attempt to use a different cell-size figure would conflict with statute, which would defeat the rule under standard administrative-law principles (an agency rule that contradicts its enabling statute is void).

Could the TCI adopt some Core Jail Standards but not others?

Yes, subject to UAPA process. The Core Jail Standards are a published set, but TCI is authorized to adopt them in whole or in part (and must keep the 2009 cell-size standard intact). Each adoption or partial adoption is a rule subject to the same procedural requirements.

Citations

• Tenn. Code Ann. § 41-4-140(a), -140(f)
• Tenn. Code Ann. § 41-7-105
• Tenn. Code Ann. § 4-5-102(12); §§ 4-5-202, -203, -206, -211, -216
• 2009 Tenn. Pub. Acts ch. 242
• Abdur'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005)
• Heritage Early Childhood Development Center, Inc. v. Tennessee Department of Human Services, 2009 WL 3029595 (Tenn. Ct. App. 2009)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-063.pdf

Original opinion text

August 26, 2011
Opinion No. 11-63
Changes to the Tennessee Corrections Institute's Minimum Standards for Local Correctional Facilities

QUESTIONS

1. Does the board of control of the Tennessee Corrections Institute ("TCI") have the authority, by majority vote, to replace the current minimum standards for local correctional facilities with the American Correctional Association's core jail standards?

2. Can the TCI revise, change, delete or adopt new minimum standards for local correctional facilities without complying with the Uniform Administrative Procedures Act (UAPA)?

OPINIONS

1. Yes, the board of control of the TCI has the authority to replace the current TCI minimum standards for local correctional facilities with the American Correctional Association's core jail standards. However, in so doing, the board must adopt, pursuant to Tennessee Code Annotated § 41-4-140(f), the minimum standards required by the American Correctional Association's performance-based standards for adult local detention facilities, as amended by the 2008 standards supplement, with regard to the standards for the square footage of cells in new and existing local correctional facilities.

2. Changes to the TCI minimum standards for local correctional facilities must comply with the rule-making provisions of the UAPA.

ANALYSIS

1. The TCI is governed by a board of control consisting of the governor or the governor's designee, the commissioner of correction, the chairs of the departments of criminal justice at Tennessee State University and Middle Tennessee State University, an employee of the department of correction, and two sheriffs appointed by the governor. Tenn. Code Ann. § 41-7-105.

The TCI has the power and duty to establish minimum standards for local jails, lock-ups, and workhouses, including but not limited to standards for physical facilities and standards for correctional programs of treatment, education and rehabilitation of inmates, and standards for the safekeeping, health and welfare of inmates. Tenn. Code Ann. § 41-4-140(a). The standards "shall approximate, insofar as possible, those standards established by the inspector of jails, federal bureau of prisons, and by the American Correctional Association's manual of correctional standards, or such other similar publications as the institute deems necessary[.]" Id. In 2009 this statute was amended to provide specifically which standard must be adopted with regard to the square footage of cells. 2009 Tenn. Pub. Acts 242; Tenn. Code Ann. § 41-4-140(f).

The American Correctional Association (ACA) is a resource upon which TCI may rely in establishing jail standards. ACA currently publishes numerous manuals of standards covering a variety of types of adult and juvenile facilities and programs. The manual of core jail standards was recently developed by the ACA in conjunction with several organizations including the American Jail Association and the National Sheriffs' Association, and is intended to be a national set of minimum jail standards. These standards cover areas of safety, security, administration, and care including health care, programs and activities.

Accordingly pursuant to Tennessee Code Annotated § 41-4-140(a) the TCI board of control has the authority to replace the current TCI minimum standards for local correctional facilities with the American Correctional Association's core jail standards. The board however must adopt the minimum standards required by the American Correctional Association's performance-based standards for adult local detention facilities, as amended by the 2008 standards supplement, with regard to the standards for the square footage of cells in new and existing local correctional facilities. Tenn. Code Ann. § 41-4-140(f).

2. Any changes to the TCI minimum standards for local correctional facilities would be new "rules" under the UAPA and thus must comply with the rule-making provisions of the UAPA. A rule, by definition, includes the amendment or repeal of a prior rule. Tenn. Code Ann. § 4-5-102(12). The UAPA defines a "rule" as

[E]ach agency statement of general applicability that implements or prescribes law or policy or describes the procedures or practice requirements of any agency. "Rule" includes the amendment or repeal of a prior rule, but does not include:

(A) Statements concerning only the internal management of state government and not affecting private rights, privileges or procedures available to the public;
(B) Declaratory orders issued pursuant to § 4-5-223;
(C) Intra-agency memoranda;
(D) General policy statements that are substantially repetitious of existing law;
(E) Agency statements that:
(i) Relate to the use of the highways and are made known to the public by means of signs or signals; or
(ii) Relate to the curriculum of individual state supported institutions of postsecondary education or to the admission or graduation of students of such individual institutions but not to the discipline or housing of students;
(F) Rate filings pursuant to title 56, chapters 5 and 6; or
(G) Statements concerning inmates of a correctional or detention facility[.]

Tenn. Code Ann. § 4-5-102(12).

The UAPA provides that rules must be promulgated by public notice. In addition, the Act requires a public hearing in certain circumstances, approval by the Attorney General, and filing with the Secretary of State. Tenn. Code Ann. §§ 4-5-202, -203, -206, -211. Failure to promulgate a rule in compliance with the UAPA renders the rule void. Tenn. Code Ann. § 4-5-216.

The TCI's establishment of minimum standards for local correctional facilities implements or prescribes law, and thus triggers the UAPA due process requirements of notice and hearing to those whose relationships with the government will be impacted by the adoption of such standards. Such persons or entities would include, but not be limited to, local officials responsible for the building and maintenance of these facilities, contractors charged with meeting these standards and the general public. The TCI's establishment of minimum jail standards does not fit within any of the exceptions of Tennessee Code Annotated § 4-5-102(12). Establishing jail standards does "impact private rights, privileges or procedures available to the public", Tenn. Code Ann. § 4-5-102(12)(A), and is more than a mere statement "concerning inmates of a correctional or detention facility", Tenn. Code Ann. § 4-5-102(12)(G). See, e.g., Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 311-12 (Tenn. 2005); Heritage Early Childhood Development Center, Inc. v. Tennessee Department of Human Services, No. M2008-02134-COA-R3-CV, 2009 WL 3029595, at 5-7 (Tenn. Ct. App. 2009).

ROBERT E. COOPER, JR.
Attorney General and Reporter

KIMBERLY J. DEAN
Deputy Attorney General

Requested by:
Tennessee Corrections Institute
500 Deaderick Street, 8th Floor, Andrew Jackson Bldg.
Nashville, TN 37243-1420