Can the Texas Commission on Jail Standards approve temporary or alternative inmate housing?

Plain-English summary

The Commission on Jail Standards asked the Attorney General how much room it had to write rules for housing county inmates outside a county's main jail, especially for crowding emergencies. The core of the answer came from an earlier opinion, DM-24 (1991), which had drawn a line between two kinds of facilities. A county's traditional "county jail" is governed by Chapter 351 of the Local Government Code, the chapter that sets out the requirements for "safe and suitable jails." But the broader definition of "county jail" in Chapter 511 of the Government Code reaches facilities that fall outside Chapter 351's traditional-jail description. So as long as a county keeps one traditional jail that meets Chapter 351, its other inmate-housing facilities answer only to the rules the commission adopts under Chapter 511.

Working from that split, the opinion answered each question. The commission can create standards authorizing facilities for temporary purposes, because those facilities need only satisfy reasonable commission rules, not Chapter 351. When a facility is found noncompliant, the commission has options short of closing it: after reporting the noncompliance and giving up to a year to fix it, the commission "may," but is not required to, prohibit confinement there, and it can instead seek a court order, require transfers, or grant a variance. Nothing in Chapter 511 stops the commission from authorizing a facility used for longer than a year; the one-year period is the compliance window after a noncompliance finding, and a variance can run indefinitely. And because Chapter 351's construction requirement (masonry, metal, or comparable material) applies only to the traditional jail, the commission's reasonable rules for alternative facilities need not impose it.

The opinion added two limits. Whether a particular commission standard is reasonable as applied to a specific facility is a fact question that the opinion process cannot resolve; it has to be judged case by case. And the commission's rules on prisoner facilities must be consistent with the Eighth Amendment of the United States Constitution.

Currency note

This opinion was issued in 1992. 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. Chapters 351 and 511 have been amended since 1992 and the commission's administrative rules change over time, so confirm the current statutes and Texas Administrative Code provisions before relying on any rule described here.

Background and statutory framework

The opinion rested on the distinction drawn in Attorney General Opinion DM-24 (1991). DM-24 read Chapter 511 of the Government Code to empower the commission to adopt rules setting "minimum standards for the construction, equipment, maintenance, and operation of county jails" and to enforce those rules and related state law. It also held that Chapter 511's definition of "county jail" is broader than the "safe and suitable jails" addressed in Chapter 351 of the Local Government Code, and that Chapter 351 contemplates the traditional county jail, not alternative incarceration facilities such as a low-risk facility. The upshot: so long as a county maintains one traditional jail subject to Chapter 351, its other "jail" facilities are subject only to commission regulation under Chapter 511, and the reasonableness of standards for any particular ancillary facility must be judged case by case.

Section 511.009(a) directs the commission, among other duties, to adopt reasonable rules setting minimum standards for the construction, equipment, maintenance, and operation of county jails and for the custody, care, and treatment of prisoners, to revise its rules as necessary, and at least annually to determine whether each county jail complies. Section 511.011 requires the commission, on finding that a facility does not comply with state law or commission rules, to report the noncompliance to the county commissioners and sheriff and to send a copy to the governor.

On remedies, the statutes give the commission a graduated toolkit rather than a single switch. After a noncompliance finding, section 511.012(a) gives the county or sheriff a reasonable period of not more than one year to comply and lets the commission grant reasonable, fact-justified variances, though a variance may not allow unhealthy, unsanitary, or unsafe conditions. Section 511.012(b) lets the commission, by order, prohibit confinement of prisoners in the jail or require transfers necessary to bring it into compliance. Section 511.014(a) lets the commission, instead of closing a jail, bring an action to enforce or enjoin a violation of Subchapter A of Chapter 351 or of a commission rule, order, or procedure. Reading these together, the opinion treated the enforcement provisions (sections 511.011 through 511.014) as applying both to the traditional county jail and to the adjunct and alternative facilities subject only to commission regulation.

The opinion declined to go further on the merits of any specific rule. Whether a commission standard is reasonable as applied to a particular facility involves factual determinations that cannot be resolved in the opinion process. The opinion also flagged the constitutional floor: the commission's rules on prison facilities must be consistent with the Eighth Amendment.

Common questions

Could the commission approve temporary emergency jail facilities?
Yes. Temporary facilities holding county inmates need only meet the commission's reasonable rules under Chapter 511, not Chapter 351, so the commission could set standards authorizing them.

If a jail was out of compliance, did the commission have to close it?
No. The opinion read the statutes to give the commission options. It "may," but need not, prohibit confinement; it can also seek a court order, require inmate transfers, or grant a variance.

Could a facility be used for more than one year?
Yes. Nothing in Chapter 511 barred it. The one-year period is the window to fix noncompliance after a finding, and a variance under section 511.012(a) can run for an indefinite period.

Did alternative facilities have to be built of masonry or metal?
No. The masonry, metal, or comparable material requirement tied to Chapter 351 applies only to the traditional county jail. The commission's reasonable rules for other facilities need not impose it.

Did the opinion decide whether any specific commission rule was reasonable?
No. Whether a standard is reasonable as applied to a particular facility is a fact question the opinion process cannot resolve; it must be determined case by case.

Citations

• Tex. Gov't Code § 511.009(a), (10)
• Tex. Gov't Code § 511.011
• Tex. Gov't Code § 511.012(a), (b)
• Tex. Gov't Code § 511.014(a)
• Tex. Local Gov't Code ch. 351; § 351.005
• U.S. Const. amend. VIII
• Tex. Att'y Gen. Op. DM-24 (1991)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0119
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0119.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

May 12, 1992

Mr. Jack E. Crump
Executive Director
Commission on Jail Standards
P. O. Box 12985
Austin, Texas 78711

Opinion No. DM-119

Re: Authority of the Commission on Jail Standards to promulgate rules regarding the temporary emergency housing of county inmates, and related questions (RQ-351)

Dear Mr. Crump:

You have requested our opinion as to whether the Commission on Jail Standards (hereafter "the commission") is authorized to adopt rules regarding temporary emergency housing of county inmates. Specifically, you ask:

1. May the commission create standards authorizing facilities for temporary purposes?

2. Does the commission have other alternatives to resolve non-compliant conditions (i.e., crowded) except closure?

3. May the commission authorize the creation of facilities and usage for longer than one year?

4. It is envisioned that temporary facilities would have only one classification of inmate. Does the requirement of Section 351.005 Local Government Code, which deals with separation of inmates, limit construction to masonry, metal or comparable material, provided the facility is structurally sound?

Your questions may be largely resolved by reference to Attorney General Opinion DM-24 (1991). In that opinion, we observed that the commission is empowered by section 511 of the Government Code "to promulgate rules establishing minimum standards for the 'construction, equipment, maintenance, and operation of county jails,' and to enforce its rules and state laws relating to standards for county jails." Attorney General Opinion DM-24 at 3. The opinion also noted that the definition of "county jail" under chapter 511 "encompasses facilities that are not within the description of 'safe and suitable jails' found in chapter 351 of the Local Government Code." Id. Chapter 351 refers to the "traditional county jail, and does not contemplate alternative incarceration facilities such as a low-risk facility." Id. at 4. So long as a county maintains one traditional "county jail" that is subject to chapter 351, its other "jail" facilities are not necessarily subject to those requirements. Rather, they are subject to the regulations promulgated by the commission under chapter 511. "The reasonableness of standards [imposed by such regulations] developed for particular ancillary jail facilities must be determined on a case-by-case basis." Id. at 5.

Section 511.009(a) of the Government Code, directs the commission to, inter alia:

(1) adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of county jails;

(2) adopt reasonable rules and procedures establishing minimum standards for the custody, care, and treatment of prisoners;

. . . .

(5) revise, amend, or change rules and procedures if necessary;

. . . .

(10) at least annually determine whether each county jail is in compliance with the rules and procedures adopted under this chapter.

Section 511.011 of the Government Code, provides that if the commission finds that a facility "does not comply with state law or the rules, standards, or procedures of the commission, it shall report the noncompliance to the county commissioners and sheriff of the county responsible for the county jail and shall send a copy of the report to the governor." After a finding of noncompliance, the commission is directed to "grant the county or sheriff a reasonable period of not more than one year after the date of the report under Section 511.011 to comply with commission rules and procedures and state law." Gov't Code § 511.012(a). If the commissioners or the sheriff so request, the commission is empowered to "grant reasonable variances, clearly justified by the facts, for operation of a county jail not in strict compliance with state law." Id. A variance may not, however, allow "unhealthy, unsanitary, or unsafe conditions." Id.

Section 511.012(b) permits the commission, by order, to "prohibit confinement of prisoners in the county jail," or to require the transfer of inmates "necessary to bring the county jail into compliance." Section 511.014(a) authorizes the commission, "[i]nstead of closing a county jail, [to] bring an action . . . to enforce or enjoin a violation of Subchapter A, Chapter 351, Local Government Code, or a commission rule, order, or procedure." We construe the enforcement portions of chapter 511, subsections 511.011 through 511.014, to apply both to the traditional "county jail" governed by chapter 351 of the Local Government Code, and to those adjunct and alternative facilities which are subject only to commission regulation.

We turn now to your specific questions, addressing your second question first. That question asks whether the commission, after finding a facility to be in non-compliance with state law rules, standards, or procedures of the commission, has any alternative to closing the facility if the non-compliance has not been remedied within the one year period set by Government Code section 511.012(a). The commission is authorized, but is not required, to "prohibit confinement of prisoners" in a non-compliant facility. Id. § 511.012(b); see also id. §§ 511.012(a), 511.014(a) (discussed above). Again, the county jail must comply with Local Government Code chapter 351, whereas other facilities need comply only with commission rules.

Your remaining questions concern temporary emergency housing of county inmates. The commission is empowered to "create standards authorizing facilities for temporary purposes." As we have indicated, only a traditional "county jail" must comply with chapter 351. Other facilities housing county inmates need only comply with rules promulgated by the commission under subsection 511.009. Those rules may authorize emergency facilities, so long as the standards for such facilities are "reasonable."

There is nothing in chapter 511 which would prohibit the commission from authorizing the creation and usage of facilities for longer than one year. Subsection 511.012 refers to a maximum period of one year for compliance with commission rules after notification of noncompliance, and subsection 511.009(10) requires that the commission determine "at least annually" whether a facility is "in compliance with [its] rules and procedures." As long as they are reasonable, however, the rules for minimum compliance under subsection 511.009 may permit the use of a facility for more than one year. Furthermore, a variance under subsection 511.012(a) may be granted for an indefinite period.

Your last question is whether the requirement of subsection 351.005 limits construction to "masonry, metal or comparable material." As we have previously noted, chapter 351 applies only to a traditional county jail. Any ancillary or alternative facility is subject only to the rules of the commission promulgated under chapter 511. So long as the commission's rules are reasonable, they need not restrict construction to "masonry, metal or comparable material."[1]

Finally, we note that whether standards promulgated by the commission are reasonable as applied to a particular facility must be determined on a case-by-case basis. Whether such rules would be reasonable involves factual determinations that cannot be resolved in the opinion process.

                              SUMMARY

      Only a traditional county jail is subject to the requirements of chapter 351 of the Local Government Code. "Alternative incarceration facilities" are subject only to the regulations of the Commission on Jail Standards. As to such facilities, the commission may promulgate minimum standards which authorize (1) facilities for temporary purposes; (2) remedies for non-compliance other than closure of a facility; (3) facilities intended to be used for longer than one year; and (4) facilities which are not constructed of masonry, metal or comparable material.

                                                 Very truly yours,

                                                DAN MORALES
                                                Attorney General of Texas

[1] The commission's rules on prison facilities must be consistent with the Eighth Amendment of the United States Constitution.

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General