Can a bailiff who isn't a licensed jailer supervise inmates in courthouse holding cells?

TX AG Opinion GA-0692: Who decides if a bailiff can watch inmates in a holding cell?

Plain-English summary

The executive director of the Texas Commission on Jail Standards asked a set of questions about who may supervise county jail inmates held in courthouse holding cells: whether a bailiff may do it, whether a sheriff must instead provide a licensed jailer, at what point during an inmate's time at the courthouse supervisory authority passes from the judge and bailiff to the sheriff and the minimum jail standards, and whether a form a bailiff signs accepting responsibility for an inmate's custody, health, and welfare is enough to authorize an unlicensed bailiff to supervise a holding cell. The director noted that no counties require bailiffs to be licensed jailers and suggested that practice might conflict with the Commission's minimum standards.

The Attorney General first confirmed the Commission's authority. Government Code section 511.009 directs it to adopt minimum standards on the custody, care, and treatment of prisoners and the number of jail supervisory personnel, and section 511.014 lets it enforce its rules. Prior opinions established that the Commission's standards reach an inmate confined in a courthouse holding cell, so the Commission is authorized to regulate observation there. The director pointed to two standards: one requiring observation of holding-cell inmates by "facility personnel" at intervals not exceeding 30 minutes, and one requiring hourly face-to-face observation by "corrections officers" at a "facility."

The problem, the opinion explained, was definitional. The Commission has not defined "facility," "facility personnel," or "corrections officer" in its regulations, and the AG declined to define words the enacting authority itself left undefined. Without those definitions, the office could not say whether the current practice violated any controlling authority. Following its long-standing policy of deferring to the agency that administers and enforces a statute to interpret its own rules first, the opinion concluded the Commission must decide in the first instance whether bailiffs may supervise inmates in courthouse holding cells, and declined to answer the remaining questions because they depended on that determination or raised fact questions.

Currency note

This opinion was issued in 2009. 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 Jail Standards statutes and the Commission's administrative rules have been amended since 2009, and the Commission may have since defined the terms this opinion flagged as undefined. Check the current statutes and rules before relying on this analysis.

Who this opinion affected (as of 2009)

The Texas Commission on Jail Standards: The opinion held that the Commission, not the AG, had to decide in the first instance whether bailiffs may supervise inmates in courthouse holding cells, and that it could resolve the matter by defining its undefined terms.

Sheriffs, bailiffs, and counties: The opinion confirmed the Commission's minimum standards reach courthouse holding cells but left unresolved whether an unlicensed bailiff could satisfy them, pending the Commission's interpretation.

Common questions

Did the AG say bailiffs can or cannot watch inmates in holding cells?
Neither. The opinion declined to answer and said the Commission on Jail Standards must decide that question first.

Why did the AG refuse to decide?
Because the Commission's own rules do not define "facility," "facility personnel," or "corrections officer," and the office defers to the agency that administers a statute to interpret its own undefined rules.

Do jail standards even apply in a courthouse holding cell?
Yes. The opinion confirmed, citing prior opinions, that the Commission's minimum standards apply to the observation of inmates confined in courthouse holding cells.

Background and statutory framework

Government Code section 511.009 directs the Commission to adopt minimum standards on the custody, care, and treatment of prisoners and on the number of jail supervisory personnel (Tex. Gov't Code Ann. § 511.009(a)(2)-(3) (Vernon Supp. 2008)), and section 511.014 authorizes enforcement (id. § 511.014(a) (Vernon 2004)). Prior opinions applied those standards to inmates in courthouse holding cells (Tex. Att'y Gen. Op. No. MW-559 (1982) at 2; Tex. Att'y Gen. Op. No. DM-119 (1992) at 3). The cited standards require observation of holding-cell inmates by facility personnel at intervals not exceeding 30 minutes (37 Tex. Admin. Code § 265.3 (2008); see id. § 253.1(13)) and hourly face-to-face observation by corrections officers at a facility (id. § 275.1). The Commission did not define "facility," "facility personnel," or "corrections officer" (see id. § 253.1; cf. id. § 253.1(11)), and the office defers to the administering agency to interpret its own rules first (Tex. Att'y Gen. Op. Nos. JC-0449 (2002), M-609-A (1970)). The bailiff footnote distinguished appellate-court bailiffs required to be licensed peace officers (Tex. Gov't Code Ann. § 53.091(a), (c) (Vernon 2005)).

Citations

Statutes:

• Tex. Gov't Code Ann. § 511.009(a)(2)-(3) (Vernon Supp. 2008)
• Tex. Gov't Code Ann. § 511.014(a) (Vernon 2004)
• Tex. Gov't Code Ann. § 53.091(a), (c) (Vernon 2005)
• 37 Tex. Admin. Code §§ 265.3, 253.1(13), 275.1, 253.1(11) (2008)

Cases and opinions:

• Tex. Att'y Gen. Op. No. MW-559 (1982)
• Tex. Att'y Gen. Op. No. DM-119 (1992)
• Tex. Att'y Gen. Op. No. JC-0449 (2002)
• Tex. Att'y Gen. Op. No. M-609-A (1970)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0692
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0692.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

January 22, 2009

Mr. Adan Munoz, Jr.
Executive Director
Texas Commission on Jail Standards
Post Office Box 12985
Austin, Texas 78711

Opinion No. GA-0692

Re: Observation of county jail inmates while they are confined in courthouse holding cells (RQ-0722-GA)

Dear Mr. Munoz:

On behalf of the Texas Commission on Jail Standards (the "Commission"), you ask whether a bailiff may supervise county jail inmates while they are held in courthouse holding cells or, assuming that the bailiff is not a jailer, whether a sheriff must provide a licensed jailer to supervise a county jail inmate being held in a courthouse holding cell.[1] You also ask "[a]t what point during an inmate's time at a courthouse . . . the judge, and thus the bailiff, relinquish[es] supervisory authority to the sheriff and Minimum Jail Standards[.]" Request Letter at 1. Finally, you ask whether a form signed by a bailiff "upon taking control of an inmate" that accepts "responsibility for the inmate's custody, health, and general welfare" sufficiently authorizes a bailiff who does not have a jailer's license "to supervise a courthouse holding cell[.]" Id.

You indicate that no counties require bailiffs to be licensed jailers.[2] See id. You suggest that observation of inmates in courthouse holding cells by bailiffs who are not licensed jailers may be inconsistent with minimum jail standards adopted by the Commission under Government Code section 511.009. See id.

Government Code section 511.009 expressly directs the Commission to adopt reasonable minimum standards relating to, among other things, the "custody, care, and treatment of prisoners" and the "number of jail supervisory personnel." TEX. GOV'T CODE ANN. § 511.009(a)(2)-(3) (Vernon Supp. 2008). The Commission also has express authority to enforce its rules. See id. § 511.014(a) (Vernon 2004). Moreover, as Attorney General Opinion MW-559 determines, Commission-adopted minimum jail standards apply to the observation of an inmate confined in a courthouse holding cell. See Tex. Att'y Gen. Op. No. MW-559 (1982) at 2; see also Tex. Att'y Gen. Op. No. DM-119 (1992) at 3 (stating that a facility housing county inmates other than a "traditional county jail" must comply only "with rules promulgated by the [C]ommission"). Accordingly, the Commission is authorized to regulate the observation of inmates confined in courthouse holding cells.

You cite two minimum jail standards as relevant. First, title 37, section 265.3 of the Texas Administrative Code requires that "[i]nmates confined in a holding cell . . . be observed by facility personnel at intervals not to exceed 30 minutes." 37 TEX. ADMIN. CODE § 265.3 (2008) (Tex. Comm'n on Jail Standards, Observation During Holding). The regulations define the term "holding cell" as "[a] cell designed for the temporary holding of inmates." Id. § 253.1(13) (Definitions). Second, title 37, section 275.1 requires hourly observation of inmates by "corrections officers" at a "facility":

Facilities shall have an established procedure for visual, face-to-face observation of all inmates by corrections officers at least once every hour. Observation shall be performed at least every 30 minutes in areas where inmates known to be assaultive, potentially suicidal, mentally ill, or who have demonstrated bizarre behavior are confined.

Id. § 275.1 (Regular Observation by Corrections Officers).

The Commission has not defined the terms "facility," "facility personnel" or "corrections officer" in its regulations, and we decline to provide definitions to words or phrases that the Commission, as the enacting authority, has declined to define. See id. § 253.1 (Definitions); cf. id. § 253.1(11) (defining "existing facility" as a type of facility). Absent these definitions, we are unable to state whether the current practice is contrary to any controlling statutory or regulatory authority.

The long-standing policy of this office has been to defer to the administrative agency charged with the administration and enforcement of a statute to interpret its own rules in the first instance. Tex. Att'y Gen. Op. Nos. JC-0449 (2002), M-609-A (1970). As the agency charged with "adopt[ing] reasonable rules and procedures establishing minimum standards for the custody, care and treatment of prisoners," the Commission must determine, in the first instance, whether bailiffs have the authority to supervise inmates being held in courthouse holding cells. TEX. GOV'T CODE ANN. § 511.009(a)(2)-(3) (Vernon Supp. 2008). Because the answers to your remaining questions will depend on the Commission's determination as to the first question and/or present questions of fact, we decline to answer those questions.

[Footnote 2: We assume you ask about bailiffs at the trial court level. Cf. TEX. GOV'T CODE ANN. § 53.091(a), (c) (Vernon 2005) (authorizing Texas appellate courts to employ individuals "to protect the court"; the bailiffs must be licensed as peace officers).]

SUMMARY

As the agency charged with adopting reasonable rules and procedures establishing minimum standards for the custody, care and treatment of prisoners, the Texas Commission on Jail Standards must determine, in the first instance, whether bailiffs have the authority to supervise inmates being held in courthouse holding cells.

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee