Can Texas prisons require incoming inmates to be tested for HIV?

TX AG Opinion GA-0512: Can Texas prisons require incoming inmates to be tested for HIV?

Plain-English summary

A state senator who had sponsored the relevant legislation asked whether the Texas Department of Criminal Justice (TDCJ) could adopt a rule or policy requiring mandatory testing of incoming offenders for human immunodeficiency virus (HIV). The Texas Board of Criminal Justice governs the TDCJ and is authorized to adopt rules as necessary for its own procedures and for operation of the department. The TDCJ includes an institutional division, which runs the state prison system, and a state jail division, which runs the state jails.

For the institutional division, the opinion looked at Government Code section 501.054(i), which a 2005 law (House Bill 43) had amended. That subsection requires the division to test an inmate who is eligible for release before release, and it also permits the division to test an inmate "at any time." Because the statute lets the division test at any time, the opinion concluded the Board may, though it is not required to, adopt a rule compelling HIV testing of incoming offenders to the institutional division.

For the state jail division, the opinion turned to section 507.023(b), which the same 2005 law amended by changing "may test" to "shall test." That subsection directs the state jail division to test a defendant for AIDS or HIV in the same manner and subject to the same conditions that apply to the institutional division under section 501.054. Since those conditions permit testing at any time, the opinion concluded the Board is likewise authorized to require mandatory HIV testing of incoming offenders in the state jail division. The bottom line: the Board has authority to require testing at intake in both divisions.

Currency note

This opinion was issued in 2007. 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.

The Government Code provisions governing TDCJ HIV testing (sections 501.054, 507.002, and 507.023) have been amended since 2007. Anyone dealing with correctional HIV-testing requirements today should check the current statutes and TDCJ rules rather than relying on the 2004-2006 versions cited here.

Who this opinion affected (as of 2007)

The Texas Board of Criminal Justice: The opinion told the Board it had authority to adopt a rule or policy requiring mandatory HIV testing of incoming offenders in both the institutional division and the state jail division, while making clear the statute permitted rather than compelled such a rule.

The TDCJ institutional and state jail divisions: The opinion confirmed the divisions could test incoming inmates for HIV under their governing statutes, with the institutional division able to test "at any time" and the state jail division operating under the same conditions.

Incoming offenders: The opinion meant that a person entering a Texas prison or state jail could be subject to a mandatory HIV test at intake if the Board adopted such a policy.

Common questions

Can the Texas Board of Criminal Justice require HIV testing of inmates at intake?
Yes. The opinion concluded the Board is authorized to adopt a rule or policy requiring mandatory HIV testing of incoming offenders in both the institutional division and the state jail division.

Is mandatory intake testing required, or just allowed?
The opinion explained the statutes permit, but do not require, the Board to adopt a mandatory-testing policy for incoming offenders. The Board has discretion to adopt such a rule.

Did the statute already require any HIV testing?
Yes. The opinion noted that section 501.054(i) requires the institutional division to test an inmate who is eligible for release before that inmate is released, and the 2005 law also added authority to test "at any time."

Does the same rule apply in state jails as in prisons?
Yes. The opinion explained that section 507.023(b) directs the state jail division to test for AIDS or HIV in the same manner and under the same conditions as the institutional division under section 501.054.

Background and statutory framework

The Texas Board of Criminal Justice governs the TDCJ and may adopt rules as necessary for its own procedures and for operation of the department; the TDCJ's divisions include the institutional division, which operates the state prison system, and the state jail division, which operates state jails confining defendants described by section 507.002 (Tex. Gov't Code Ann. §§ 491.001(1), 492.001 (Vernon 2004); § 492.013(a); § 493.002(a)(2), (4); § 493.004; § 493.0051; § 507.002 (Vernon 2004)). Courts construe a statute to give effect to legislative intent, beginning with the statute's plain language (Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999); In re Canales, 52 S.W.3d 698, 702 (Tex. 2001)).

Government Code section 501.054(i), amended by House Bill 43 in 2005, permits the institutional division to test an inmate for HIV "at any time," requires it to test an inmate eligible for release before release, allows segregation of an inmate with a positive result, and requires reporting positive results to the Department of State Health Services under Health and Safety Code sections 81.050-81.052; because the division may test at any time, the Board may, but need not, require mandatory testing of incoming offenders (Tex. Gov't Code Ann. § 501.054(i) (Vernon Supp. 2006); Tex. Health & Safety Code §§ 81.050-81.052; Act of May 25, 2005, 79th Leg., R.S., ch. 1184, § 1, 2005 Tex. Gen. Laws 3891, 3891).

The same 2005 law amended section 507.023(b) by changing "may test" to "shall test," directing the state jail division to adopt a policy for handling a defendant with AIDS or HIV and to test in the same manner and subject to the same conditions as the institutional division under section 501.054; because the state jail division is also governed by the Board and operates under those same conditions, the Board is authorized to require mandatory HIV testing of incoming offenders there as well (Tex. Gov't Code Ann. § 507.023(b) (Vernon Supp. 2006); §§ 492.001, .013(a) (Vernon 2004); Act of May 25, 2005, 79th Leg., R.S., ch. 1184, § 1, 2005 Tex. Gen. Laws 3891, 3891).

Citations

Statutes and session laws:

• Tex. Gov't Code Ann. §§ 491.001(1), 492.001, 492.013(a) (Vernon 2004)
• Tex. Gov't Code Ann. §§ 493.002(a)(2), (4), 493.004, 493.0051
• Tex. Gov't Code Ann. § 501.054(i) (Vernon Supp. 2006)
• Tex. Gov't Code Ann. §§ 507.002 (Vernon 2004), 507.023(b) (Vernon Supp. 2006)
• Tex. Health & Safety Code §§ 81.050-81.052
• Act of May 25, 2005, 79th Leg., R.S., ch. 1184, § 1, 2005 Tex. Gen. Laws 3891, 3891

Cases:

• Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999)
• In re Canales, 52 S.W.3d 698, 702 (Tex. 2001)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0512
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0512.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

February 1, 2007

The Honorable Rodney Ellis
Chair, Committee on Government Organization
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0512

Re: Whether the Texas Department of Criminal Justice may adopt a rule or policy requiring mandatory testing of incoming offenders for human immunodeficiency virus (RQ-0515-GA)

Dear Senator Ellis:

You ask whether the Texas Department of Criminal Justice (the "TDCJ") may adopt a rule or policy requiring mandatory testing of incoming offenders for human immunodeficiency virus ("HIV").[1]

Chapter 492 of the Government Code describes the powers and duties of the Texas Board of Criminal Justice. The Texas Board of Criminal Justice (the "Board") governs the TDCJ. TEX. GOV'T CODE ANN. §§ 491.001(1), 492.001 (Vernon 2004). The Board is authorized to "adopt rules as necessary for its own procedures and for operation" of the TDCJ. Id. § 492.013(a). Chapter 493 of the Government Code describes the organization and operation of the TDCJ. Among the divisions within the TDCJ are "the institutional division" and "the state jail division." Id. § 493.002(a)(2), (4). The institutional division is directed to "operate and manage the state prison system." Id. § 493.004. The state jail division is required to "operate and manage state jails to confine defendants described by Section 507.002." Id. § 493.0051.[2]

In construing a statute, we must give effect to the Legislature's intent. See Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999). In order to ascertain that intent, we begin by construing a statute according to its plain language. See In re Canales, 52 S.W.3d 698, 702 (Tex. 2001). Section 501.054(i) of the Government Code addresses HIV testing of inmates in the institutional division and provides:

The institutional division may test an inmate confined in a facility operated by the [institutional] division for human immunodeficiency virus at any time, but must test an inmate who is eligible for release before the inmate is released from the division. If the institutional division determines that an inmate has a positive test result, the division may segregate the inmate from other inmates. The institutional division shall report the results of a positive test to the Department of State Health Services for the purposes of notification and reporting as described by Sections 81.050-81.052, Health and Safety Code.

TEX. GOV'T CODE ANN. § 501.054(i) (Vernon Supp. 2006) (emphasis added). This section was amended by the Seventy-ninth Legislature in House Bill 43. See Act of May 25, 2005, 79th Leg., R.S., ch. 1184, § 1, 2005 Tex. Gen. Laws 3891, 3891. As the Senate sponsor of this bill, you state that it "required mandatory HIV testing for all offenders prior to the release of an offender." Request Letter, supra note 1, at 1. In addition to this requirement, House Bill 43 also added language that permits the institutional division of TDCJ to test an inmate for HIV "at any time." Act of May 25, 2005, 79th Leg., R.S., ch. 1184, § 1, 2005 Tex. Gen. Laws 3891, 3891; TEX. GOV'T CODE ANN. § 501.054(i) (Vernon Supp. 2006).

Because the plain language of section 501.054(i) permits the institutional division to test an inmate confined in any of its facilities "at any time," the Board may, but is not required to, adopt a rule or policy that compels mandatory HIV testing for incoming offenders to the institutional division.

We next consider chapter 507 of the Government Code, which relates to the state jail division. Another portion of House Bill 43 amended section 507.023(b) of the Government Code to read as follows:

The state jail division shall adopt a policy for handling a defendant with AIDS or HIV and shall test a defendant for AIDS or HIV in the same manner and subject to the same conditions as apply to the institutional division under Section 501.054.

TEX. GOV'T CODE ANN. § 507.023(b) (Vernon Supp. 2006). The only change made to this section was the substitution of the phrase "shall test" for "may test." Act of May 25, 2005, 79th Leg., R.S., ch. 1184, § 1, 2005 Tex. Gen. Laws 3891, 3891. The state jail division, like the institutional division, is governed by the Board, and the Board is authorized to "adopt rules as necessary for its own procedures and for operation" of the TDCJ. TEX. GOV'T CODE ANN. §§ 492.001, .013(a) (Vernon 2004). The plain language of section 507.023(b) applies to the state jail division the terms of section 501.054(i), which as we have noted permits, but does not require, the Board to adopt a policy requiring mandatory HIV testing for incoming offenders.

We conclude that the Board is authorized to adopt a rule or policy requiring mandatory testing for human immunodeficiency virus of incoming offenders in both the institutional division and the state jail division.

SUMMARY

The Texas Board of Criminal Justice is authorized to adopt a rule or policy requiring mandatory testing for human immunodeficiency virus of incoming offenders in both the institutional division and the state jail division.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Rodney Ellis, Chair, Senate Committee on Government Organization, to Honorable Greg Abbott, Attorney General of Texas (Aug. 2, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Section 507.002 provides that "[t]he state jail division may confine in a state jail felony facility authorized by this subchapter defendants required by a judge to serve a term of confinement in a state jail felony facility following a grant of deferred adjudication for or conviction of an offense punishable as a state jail felony." TEX. GOV'T CODE ANN. § 507.002 (Vernon 2004).