Can the Texas Commission on Jail Standards inspect a private prison holding only federal inmates?

Plain-English summary

The Eden Detention Center is a prison in Eden, Texas. The City of Eden leases and runs it under a 1985 intergovernmental agreement with the federal Bureau of Prisons, and a private prison-management company operates it. Since it opened, it has held only federal prisoners and detainees (including people held for the Immigration and Naturalization Service), never inmates of the city, the state, or any local government. The Bureau of Prisons has monitored and inspected it the whole time.

The Texas Commission on Jail Standards thought it could also regulate and inspect the facility. Its argument rested on Local Government Code chapter 361, which lets a city contract with a private vendor to run a jail or detention center but requires that vendor to meet the commission's minimum standards and be certified by it. Representative Robert Junell asked the Attorney General whether the commission really has that authority over the Eden Detention Center, and posed four specific questions about how its oversight would work.

The Attorney General answered no, and so did not need to reach the four specific questions. The answer came from federal law. Under 18 U.S.C. section 4001, the United States Attorney General has sole authority to control and manage a federal penal and correctional institution, and under section 4042 the federal Bureau of Prisons has charge of managing and regulating all such institutions. Federal law also sets the duty of care owed to federal prisoners and prevails over inconsistent state law. Because the Eden Detention Center holds only federal inmates, it is a federal penal and correctional institution answerable only to the U.S. Attorney General and the Bureau of Prisons. The state commission has no jurisdiction over it.

The office added two supporting points. First, it did not think the Legislature ever meant the commission to reach federal prisons: Government Code section 511.009(a) directs the commission to set standards for "county jails," and although "county jail" is not expressly defined to exclude a federal-only facility, the office read the term (and the undefined "jail" and "detention center" in chapter 361) to leave out a facility holding only federal prisoners. Second, reading those statutes to cover a federal institution would collide with the exclusive federal authority and so would violate the Supremacy Clause of the U.S. Constitution, and courts presume the Legislature meant its laws to be constitutional. Finally, the office distinguished its earlier Opinion JM-1260, which applied the commission's standards to a municipal jail run by a private vendor; that opinion did not involve a facility holding only federal prisoners under a federal contract, so it did not control.

Currency note

This opinion was issued in 1996. 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.

This opinion turned on the federal statutes governing the Bureau of Prisons (18 U.S.C. chapter 303) and the Texas statutes on the Commission on Jail Standards (Government Code chapter 511) and municipal jail contracting (Local Government Code chapter 361). Those statutes have been amended over the years, and the landscape of privately operated and federal-contract detention has changed. Read this page for the office's 1996 reasoning on federal preemption, and verify current federal and Texas law before relying on any specific provision.

What the opinion meant at the time

For the Texas Commission on Jail Standards: The opinion meant the commission had no authority to regulate, inspect, or certify a facility that housed only federal prisoners and detainees, even one a city operated through a private vendor.

For cities and private operators running federal-only detention facilities: The opinion meant a facility holding solely federal inmates under a federal contract answered to the U.S. Attorney General and the Bureau of Prisons, not to the state jail commission.

For facilities that hold local or state inmates: The opinion did not free private municipal jails generally from the commission's standards; it left in place Opinion JM-1260, which applied those standards to a privately operated municipal jail. The carve-out was specific to federal-only institutions.

For lawyers: The office grounded the result in 18 U.S.C. sections 4001 and 4042 and the Supremacy Clause (citing United States v. Muniz and, on preemption, Fidelity Federal Savings & Loan Ass'n v. de la Cuesta and Seiter v. Veytia), construed the undefined Texas terms to avoid a constitutional conflict (Ex parte Groves; presumption of constitutionality), and distinguished JM-1260 on its facts.

Common questions

Can the Texas Commission on Jail Standards inspect a federal prison in Texas?
No. The office concluded the commission has no authority to regulate or inspect a penal and correctional institution that houses only federal prisoners and detainees, because federal law gives the U.S. Attorney General and the Bureau of Prisons exclusive control over such institutions.

Does it matter that a city and a private company run the facility?
No. The office focused on who is held there, not who operates it. Because the Eden Detention Center held only federal inmates under a federal contract, it was a federal institution outside the commission's reach, even though the City of Eden leased it and a private company managed it.

Why doesn't Texas's private-jail law (chapter 361) apply?
Chapter 361 lets a city hire a private vendor to run a jail or detention center under the commission's standards, but the office read the undefined terms "jail" and "detention center" not to include a facility holding only federal prisoners. Applying chapter 361 to a federal institution would violate the Supremacy Clause.

Does this opinion mean private municipal jails escape state standards?
No. The office expressly kept its earlier Opinion JM-1260, which applied the commission's standards to a privately operated municipal jail. This opinion carved out only federal-only facilities.

Background and statutory framework

The federal half of the analysis is straightforward. Title 18, section 4001 of the U.S. Code gives the United States Attorney General sole authority to control and manage federal penal and correctional institutions, and section 4042 places the management and regulation of all such institutions in the Bureau of Prisons (with implementing regulations at 28 C.F.R. part 0, subpart Q). Federal law also fixes the duty of care owed to federal prisoners and prevails over inconsistent state law (United States v. Muniz; U.S. Const. art. VI). The Attorney General may contract with a state's political subdivision to imprison or care for federal prisoners, which is how the City of Eden came to operate the facility. Because the Eden Detention Center held only federal inmates, the office classified it as a federal institution subject solely to federal control, leaving no room for the state commission.

The state half reinforced the result through statutory construction. Government Code section 511.009(a) directs the Commission on Jail Standards to set minimum standards for "county jails," defined in section 511.001(2) as a facility operated by or for a county to confine persons arrested for, charged with, or convicted of an offense. Local Government Code section 361.061 lets a municipality contract with a private vendor to run a jail or detention center under the commission's standards (section 361.062). None of these provisions expressly defines its terms to exclude a federal-only facility, but the office read them that way, reasoning that the Legislature did not intend the commission to reach federal institutions. The clinching point was constitutional avoidance: construing the Texas statutes to cover a federal penal institution would conflict with the exclusive authority of the U.S. Attorney General and the Bureau of Prisons and thus violate the Supremacy Clause (Fidelity Federal Savings & Loan Ass'n v. de la Cuesta; Seiter v. Veytia), and courts presume the Legislature intends its enactments to be constitutional (Ex parte Groves). The office closed by distinguishing Opinion JM-1260, which had applied the commission's standards to a privately run municipal jail, because that opinion did not involve a facility holding only federal prisoners under a federal contract.

Citations

Constitutional, statutory, and regulatory provisions discussed:

• U.S. Const. art. VI, cl. 2 (Supremacy Clause)
• 18 U.S.C. § 4001 (U.S. Attorney General's sole authority over federal penal institutions), § 4003 (contracts for imprisonment or care of U.S. prisoners), and § 4042(1) (Bureau of Prisons' charge of management and regulation)
• 28 C.F.R. part 0, subpart Q (Bureau of Prisons regulations)
• Government Code § 511.009(a) (commission minimum standards) and § 511.001(2) (definition of "county jail")
• Local Government Code § 361.061 (municipal contract with private vendor) and § 361.062(1) (compliance and certification requirements)

Cases cited:

• United States v. Muniz, 374 U.S. 150 (1963) (federal law fixes duty of care to federal prisoners)
• Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141 (1982) (federal preemption of inconsistent state law)
• Seiter v. Veytia, 756 S.W.2d 303 (Tex. 1988)
• Ex parte Groves, 571 S.W.2d 888 (Tex. Crim. App. 1978) (presumption that statutes are constitutional)

Attorney General opinions cited:

• JM-1260 (1990) (distinguished), JM-1269 (1990), MW-328 (1981)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0404
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0404.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

July 29, 1996

The Honorable Robert Junell
Chair, Committee on Appropriations
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-404

Re: Whether the Texas Commission on Jail Standards has jurisdiction over a prison housing only federal inmates (RQ-883)

Dear Representative Junell:

The United States Attorney General has sole authority to control and manage a federal penal and correctional institution. Under her direction, the federal Bureau of Prisons manages and regulates all federal penal and correctional institutions. You refer to the Eden Detention Center, a penal and correctional institution, that houses only federal prisoners and that the City of Eden leases and operates pursuant to a contract with the federal government. You ask whether the Texas Commission on Jail Standards may regulate and inspect the Eden Detention Center. Because federal law vests in the United States Attorney General and the federal Bureau of Prisons sole authority to control, manage, and regulate federal penal and correctional institutions, we conclude the Texas Commission on Jail Standards has no jurisdiction over the Eden Detention Center.

You state that in 1985 the City of Eden executed an intergovernmental agreement with the federal Bureau of Prisons, whereby the city agreed to provide custody, care, treatment, and subsistence of federal prisoners.[1] In accordance with the agreement, the city leased the Eden Detention Center, which currently is owned by a nonprofit corporation organized under the Texas Non-Profit Corporation Act.[2] A corporation specializing in prison management manages the Eden Detention Center.[3]

You aver that the Eden Detention Center has housed only federal inmates and detainees:

With the exception of a few months' period of non-occupancy of [the detention center] caused by a fire, the City has continuously housed federal inmates at [the detention center] under the [intergovernmental agreement]. The only other persons incarcerated at [the detention center] since October 1985 have been federal inmates/detainees placed in [the center] under an intergovernmental services agreement with [the Immigration and Naturalization Service]. [The detention center] is not and has never been used as a municipal jail or detention facility. It has never been used to house inmates or detainees of the City, of the State of Texas[,] or any of its political subdivisions.

Furthermore, you state that the federal Bureau of Prisons has, since the Eden Detention Center opened in 1985, monitored, inspected, and overseen the detention center's operations.

You indicate that the Texas Commission on Jail Standards (the "commission") believes it may monitor and regulate the Eden Detention Center. As we understand the commission's argument, it believes Local Government Code chapter 361 requires the commission's involvement. Local Government Code section 361.061 authorizes the governing body of a municipality to contract with a private vendor to operate or manage a jail or detention center. Nevertheless, the contract must require the private vendor to comply with the commission's minimum standards and to be certified by the commission.[4] The commission evidently construes chapter 361 to apply to a penal and correctional facility that a private vendor operates for a municipality but that houses federal prisoners exclusively. You ask four specific questions about the commission's authority to monitor and regulate the Eden Detention Center. Because we determine that the commission has no authority to monitor and regulate the Eden Detention Center, we need not answer your specific questions.

We derive our answer from federal law. Under 18 U.S.C. § 4001, the United States Attorney General has sole authority to control and manage a federal penal and correctional institution. Under the Attorney General's direction, the federal Bureau of Prisons has charge of the management and regulation of all federal penal and correctional institutions.[5] Federal law fixes the duty of care the Bureau of Prisons owes to federal prisoners, and that law prevails over an inconsistent state law.[6]

The Attorney General may contract with a political subdivision of a state for the imprisonment or care of United States prisoners.[7] We assume that, pursuant to this statutory authority, the federal government contracted with the City of Eden to house federal inmates. Because the Eden Detention Center houses solely federal inmates,[8] it is a federal penal and correctional institution[9] subject only to the United States Attorney General and, at her direction, to the federal Bureau of Prisons. The commission thus has no jurisdiction over the Eden Detention Center.

Incidentally, we do not believe the legislature ever contemplated that the commission would assume jurisdiction over federal penal and correctional institutions. Government Code section 511.009(a) requires the commission to adopt minimum standards for the operation of county jails and for the treatment of inmates in the county jails. While county jails is not defined to exclude an institution housing only federal prisoners and detainees,[10] we believe the legislature intended to so limit the definition. In addition, Local Government Code section 361.061 authorizes a municipality to contract with a private vendor to operate a jail or detention center, but the private vendor must operate the facility in compliance with standards adopted by the commission.[11] While we find nothing that defines the terms "jail" or "detention center" for purposes of Local Government Code chapter 361, we again believe the legislature intended to limit these terms to exclude an institution housing only federal prisoners and detainees. Indeed, to construe either of these statutes as applicable to a federal penal and correctional institution, thereby subjecting the institution to the commission's jurisdiction, would be inconsistent with the United States Attorney General's and the Bureau of Prison's exclusive authority. The statutes thus would violate the supremacy clause of the United States Constitution,[12] which requires inconsistent state laws to yield to valid federal laws and regulations.[13] We must presume, however, that the legislature intends its enactments to be constitutional.[14]

Finally, we must distinguish our conclusion and Attorney General Opinion JM-1260, in which we concluded that minimum standards adopted by the commission apply to a municipal jail operated by a private vendor under Local Government Code chapter 361.[15] The requestor in that instance was not concerned with penal and correctional institutions located in the state housing only federal prisoners, in accordance with a contract between a municipality and the federal government. Because it is distinguishable, Attorney General Opinion JM-1260 is irrelevant to your question.

SUMMARY

The Texas Commission on Jail Standards has no authority to regulate or inspect a penal and correctional institution housing only federal prisoners and detainees.

The terms "county jail" in Government Code chapter 511 and "jail" and "detention center" in Local Government Code chapter 361 do not include a penal and correctional institution housing only federal prisoners and detainees.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

Footnotes:

[4] Local Gov't Code § 361.062(1).

[5] 18 U.S.C. § 4042(1); see also 28 C.F.R. part 0, subpart Q.

[6] United States v. Muniz, 374 U.S. 150, 164-65 (1963); see also U.S. Const. art. VI.

[7] 18 U.S.C. § 4003; see also 28 C.F.R. § 0.96(v).

[9] Cf. Attorney General Opinion MW-328 (1981) at 1.

[10] Government Code section 511.001(2) defines "county jail" as "a facility operated by or for a county for the confinement of persons arrested for, charged with, or convicted of an offense."

[11] Local Gov't Code § 361.062(1).

[12] U.S. Const. art. VI, cl. 2.

[13] Attorney General Opinion JM-1269 (1990) at 6 (citing Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 152 (1982); Seiter v. Veytia, 756 S.W.2d 303 (Tex. 1988)).

[14] Ex parte Groves, 571 S.W.2d 888, 893 (Tex. Crim. App. 1978) (en banc).

[15] Attorney General Opinion JM-1260 (1990) at 5.