Could the Texas parole board require a county jail to hold a parolee on a board warrant, and could it contract to reimburse the county?

Texas AG Opinion JM-615: County Jail Parole Warrants

Plain-English summary

JM-615 concluded that the Board of Pardons and Paroles could direct a county sheriff to incarcerate a person held under a board warrant while a prerevocation hearing was pending. The opinion treated that authority as implied in the board's parole powers and necessary to carry out the due-process hearing required by Morrissey v. Brewer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

The county could not refuse to accept the prisoner even if the board would not pay maintenance costs. JM-615 read article 5116 and article 2.18 as requiring sheriffs to keep prisoners committed by lawful authority, and treated the parole board's warrant as such authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

The board could not solve the cost issue through a reimbursement contract because no constitutional or statutory provision authorized it to bind the state to that agreement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

Currency note

This opinion was issued in 1987. 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.

Who this opinion affected in 1987

County sheriffs and jail administrators: JM-615 said they had to accept prisoners held under parole-board warrants pending prerevocation hearings. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

The Board of Pardons and Paroles: The board could direct detention but lacked authority to contract to reimburse the county for the cost. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

County officials responsible for jail costs: The opinion placed the detention duty on the county despite the absence of board reimbursement authority. It did not address every conflict that might arise from jail standards or other constitutional limits. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

Common questions

Could the parole board require a sheriff to hold a parolee?

Yes. JM-615 concluded that the board had implied authority to require county detention pending the prerevocation hearing. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

Could the county refuse because the board would not pay?

No. The opinion said the county had to accept the prisoner under the statutes then in force. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

Could the board sign a reimbursement contract anyway?

No. JM-615 found no pre-existing statutory authority for the board to bind the state to that contract. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

Did the opinion say Morrissey itself required county incarceration?

No. It said Morrissey required a prompt prerevocation hearing near the alleged violation, while Texas law required incarceration pending that hearing. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

Background and statutory framework

The parole board was considering a contract under which a county would jail prisoners arrested on board-issued warrants. The request asked whether the board could pay and whether the county could refuse detention without payment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

Article 42.12, section 21(a) authorized board warrants for the return of parolees and required incarceration pending the violation hearing. The opinion linked that authority to the local hearing required after Morrissey v. Brewer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

Article 5116 required the sheriff to keep prisoners committed by lawful authority, and article 2.18 required placement in jail under qualifying warrants. JM-615 treated the board's special statutory warrant authority as sufficient. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

Key source language

JM-615 stated:

"Pursuant to article 42.12, section 21(a), of the Texas Code of Criminal Procedure, the Texas Board of Pardons and Paroles may direct the county sheriff to incarcerate the Board's prisoners."

"Under article 2.18 of the code and article 5116, V.T.C.S., the county may not refuse to accept the Board's prisoners."

"The Board lacks the authority to enter into a contract to reimburse the county for the cost of jailing the Board's prisoners."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

Citations and references

• Code of Criminal Procedure article 42.12, section 21(a), and article 2.18
• V.T.C.S. articles 5116 and 6873
• Tex. Const. article III, sections 44 and 49
• Morrissey v. Brewer, 408 U.S. 471 (1972)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0615
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0615.pdf

Original opinion text

January 7, 1987

Mr. Charles E. Walker, Jr.
General Counsel.
Board of Pardons and Paroles
P. 0. Box 13401. Capitol Station
78711
Austin, Texas

Opinion No. JM-615
Re: Authority of the Board of
Pardons and Paroles to contract with counties for having
prisoners incarcerated under
the authority of warrants
Issued by the board

Dear Mr. Walker:
The Texas Board of Pardons and Paroles [hereinafter the Board] is
considering contracting with a county to provide for the incarceration
of prisoners arrested and held pursuant to board-issued warrants. You
ask primarily whether the Board holds the authority to enter into such
a contract. Your question involves two related issues: whether the
Board may pay the county to incarcerate the Board's prisoners and
whether the county may refuse to jail the Board's prisoners if the
Board refuses to pay for their maintenance.
No person or agency holds the authority to make a contract which
is binding on the state, except when authorized to do so by the Texas
Constitution or statutes. Tex. Const. art. III, 5944, 49; State v.
Ragland Clinic-Eospital. 159 S.W.Zd 105, 106 (Tex. 1942). Thus, the
power of the Board to enter into the contemplated contract depends
See State
upon the legislation which created and empowered the Board. -v. Ragland Clinic-Hospital, 159 S.W.2d at 106.
Article IV, section 11. of the Texas Constitution initially
created the Board of Pardons and Paroles. This provision grants the
governor the power, conditioned upon the Board's recommendation, to
grant reprieves and commutations of punishment and pardons. In 1983,
article IV, section 11. was amended by vote of the people to make the
Board of Pardons and Paroles a statutory rather than a constitutional
agency. To parallel the passage of this amendment, the legislature
amended sections 12(d) and 21(a) of article 42.12 of the Texas Cbde of
Criminal Procedure to give the board the sole authority to revoke
paroles and issue warrants for the return of a paroled prisoner. Acts
1983, 68th Leg., ch. 232, at 974. The Code of Criminal Procedure
emphasizes that the Board of Pardons and Paroles is the agency of
state with exclusive authority to grant paroles and gives the Board

p. 2766

Mr; Charles E. Walker, Jr. - Page 2

(JM-615)

exclusive power to supervise persons released on parole.
Proc. art. 42.12, Pl.

Code Grim.

Article 42.12, section 21(a), of the Code of Criminal Procedure
provides:
A warrant for the return of a paroled prisoner,
a prisoner released to mandatory supervision, a
prisoner released on emergency reprieve or on
furlough, or a person released on a conditional
pardon to the institution from which he was
paroled, released, or pardoned may be issued by
the Board in cases of parole or mandatory supervision, or by the Board on order by the Governor
in other cases, when there is reason to believe
that he has committed an offense against the laws
of this State or of the United States, violated a
condition of his parole, mandatory supervision, or
conditional pardon, or when the circumstances
indicate that he poses a danger to society that
warrants his immediate return to incarceration.
Such warrant shall authorize all officers named
therein to take actual custody of the prisoner
and, at the discretion of the Board, detain the
prisoner or return him to the institution from
which he was released.
Pending hearing, as
hereinafter provided, upon any charge of parole
violation or violation of the conditions of
mandatory
supervision,
the
prisoner
shall
remain incarcerated. If the Board is otherwise
authorized to issue a warrant under this subsection, the Board may instead issue to a prisoner
a summons requiring the prisoner to appear before
the Board or its designee for a hearing under
section 22 of this article. The sumons must
state the time, place, date, and purpose of the
hearing. (Emphasis added).

Article 42.12, section 21(a), of the code authorizes the Board to
issue warrants and summons for the return of a paroled prisoner to the
institution from which he was paroled.
The provision does not
expressly authorize the Board to require the county to incarcerate
persons in county jail on the basis of board-issued warrants.
Incarceration near the place where the alleged parole violation
occurred. however. is now necessary because of the United States
Supreme Court's decision in Morrissey v. Brewer, 408 U.S. 471 (1972).
In Morrissey, the Court held that release on parole is a form of
liberty that may not be denied without minimal due process. Due
process requires that a reasonably prompt prerevocation hearing be

p. 2767

Mr. Charles E. Walker, Jr. - Page 3

(JM-615)

afforded the alleged parole violator near the place where the alleged
parole violation occurred. The Court did not prohibit or require that
the prisoner be incarcerated pending the hearing; it merely required
the hearing. The Code of Criminal Procedure, in section 21(a), of
article 42.12, requires that the prisoner shall "remain incarcerated"
pending a hearing.
Consequently, you ask whether the Board may
require the county sheriff to jail the Board's prisoners and whether
the county could refuse to jail the Board's prisoners.
Attorney General Opinion JM-111 (1983) discussed the Morrissey
case and concluded that local law enforcement authorities must hold an
alleged parole violator until the constitutionally required prerevocation hearing is completed or legally waived. The opinion did not
directly address whether the Board of Pardons and,Paroles may require
the detention. Attorney General Opinion JM-111 indicated that it
would be "inappropriate for local law enforcement authorities to
release such a person prior to the conclusion or waiver of the local
revocation hearing."
(Emphasis added).
Although this result is
has been
correct, see Attorney General Opinion M-918 (1971), it
suggested that the opinion could be read to imply that the Morrissey
case requires that county sheriffs incarcerate alleged parole
violators in county jail. This is not the case. See Fowler v. Cross,
635 F.2d 476,~480 (5th Cir. 1981). It is the Boazs
action, not the
sheriff's action. which initially deurives a parolee of his liberty
and thereby threatens a due process interest protected in Morrissey V.
Brewer, supra. See Fowler v. Cross, supra. Even if the county could
legally refuse toincarcerate alleged parole violators, the Board must
still provide the coustitutionally required prerevocation hearing.
Section 21(a) of article 42.12 does not expressly authorize the
Board of Pardons and Paroles to require the county to jail the Board's
prisoners pending a prerevocation hearing.
The provision does,
however, authorize the issuance of warrants 'which authorize "all
officers named therein to take actual custody of the prisoner. . .T
(Emphasis added.) The purpose of the Board's warrant is to effect the
return of the prisoner -to-the institution from which the prisoner was
released. The prerevocation hearing required in Morrissey is now an
essential prerequisite to that return. Consequently, although article
42.12 does not expressly address the due process questions raised in
Morrlssey, the Board has the implied authority to comply with the due
process requirements of Morrissey and to require the county sheriff to
accept the Board's prisoners pending prerevocation hearings. -See
Attorney General Opinion E-312 (1974).
The county may not refuse to accept such prisoners even if the
Board refuses to pay for the prisoners' maintenance. Article 5116,
V.T.C.S., provides, in part:

p. 2768

Mr. Charles E.*Walker, Jr. - Page 4

(JM-615)

(a) Each sheriff is the keener of the d~-~
iail of
~~
his‘ county. He shall safely 'keep therein all
prisoners committed thereto by lawful authority,
subject to the order of the proper court aad shall
be responsible for the safe keeping of such
prisone&.
(Emphasis added).

• See Douthit v. Jones, 641 F.2d 345 (5th Cir. 1981); Attorney General
  MU-398 (1981); see.also Code Grim. Proc. art. 2.18; Attorney
  General Opinion M-918 (1971). As the agency of the state with
  exclusive authority over the parole system, the Board of Pardons and
  Paroles necessarily constitutes "lawful authority" for purposes of
  article 5116, V.T.C.S. Accordingly, subsection (a) of article 5116
  requires county sheriffs to incarcerate the administrative releasees
  of the Board of Pardons and Paroles. See also V.T.C.S. art. 6873
  (each sheriff shall execute all process and precepts directed to him
  by legal authority).
  opinion

Similarly, article
provides:

2.18

of

the

Code

of

Criminal

Procedure

When a prisoner is committed to jail by warrant
from a magistrate or court, he shall be placed in
jail by the sheriff. It is a violation of duty on
the part of any sheriff to permit a defendant so
committed to remain out of jail, except that he
may, when a defendant is committed for want of
bail, or when he arrests in a bailable case, give
the person arrested a reasonable time to procure
bail; but he shall so guard the accused as to
prevent escape. (Emphasis added).
-See Attorney General Opinion JM-151 (1984).
Attorney General Opinion JM-151 concluded that a county jail is
required to accept state statute violators arrested by municipal
police only after a magistrate or court has committed them to jail.
Article 2.09 of the Code of Criminal Procedure lists those persons who
are magistrates; it does not expressly include the Board of Pardons
and Paroles. Because the authority of the Board to revoke parole is
an executive function. a related case which discusses whether the
governor is a magistrate provides an analogue. The court in Ex parte
Quinn. 549 S.W.2d 198 (Tex. Grim. App. 1977) dealt with article 15.02
of the Code of Criminal Procedure, a provision that requires that
warrants be signed by a magistrate. The court noted that article 2.09
does not list the governor as a magistrate, but indicated that article
51.13 is a special statutory provision which controls over the more
general
article
15.02.
Id. at 201-02. Article
51.13
specifically
authorizes the governor trslgn
warrants of arrest for extradition

p. 2769

Mr. Charles E. Walker, Jr. - Page 5

(JM-615)

purposes. For similar reasons, because article 42.12 of the code
specifically authorizes the Board of Pardons and Paroles to Issue
executive warrants, such warrants have the status of warrants issued
by magistrates for purposes of article 2.18. Thus, under article
2.18, counties must accept the Board's prisoners.
The Board lacks the legal authority to pay the county to
incarcerate the Board's prisoners. A state agency cannot bind the
state to a contract unless that agency is authorized to do so by the
constitution or by a pre-existing statute.
State v. Ragland
Clinic-Eospital, 159 S.W.2d 105, 106 (Tex. 1942) (citing the Texas
Constitution, article III, sections 44 and 49); see also Attorney
General Opinion MW-465 (1982). No statute directs the Board to pay
for the maintenance of its prisoners.
It should be noted that a county sheriff must perform his
statutory duties even if his office is underfunded. See Attorney
General Opinion E-595 (1975). This opinion does not addressindividual
conflicts which may arise in particular situations because of other
constitutional principles or statutory provisions. See, e.g., V.T.C.S.
art. 5115.1; Attorney General Opinion MW-398 (1981) (jail standards);
Douthit v. Jones, supra (false imprisonment and due process implications) ,
SUMMARY
Pursuant to article 42.12, section 21(a), of
the Texas Code of Criminal Procedure, the Texas
Bpard of Pardons and Paroles may direct the county
sheriff to incarcerate the Board's prisoners.
Under article 2.18 of the code and article 5116,
V.T.C.S., the county may not refuse to accept the
Board's prisoners. The Board lacks the authority
to enter into a contract to reimburse the county
for the cost of jailing the Board's prisoners.

JIM
MATTOX
Attorney General of Texas
JACRHIGRTOWER
First Assistant Attorney General
WARY RRLLER
Executive Assistant Attorney General

p. 2770

Mr. Charles E. Walker, Jr. - Page 6

(m-615)

RICR GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General

p. 2771
i