Who pays for a parole violator's medical care while he is held in county jail awaiting a revocation hearing?

Texas AG Opinion JM-743: Who Pays a Parole Violator's Jail Medical Costs

Plain-English summary

A county attorney asked whether the Texas Department of Corrections or the county of incarceration had to pay for the medical care of a parole violator held in a county jail while awaiting a parole revocation hearing. The Attorney General concluded the county was responsible.

The opinion explained that a person on parole or mandatory supervision is released from imprisonment but not from the legal authority of the state, and remains in the legal custody of the institution from which he was released. If the Board of Pardons and Paroles believes a parolee has violated a condition, it may issue a warrant to take him into actual custody, and due process requires a revocation hearing near the location of the alleged violation. Pending that hearing, the prisoner remains incarcerated, and the county may be required to hold him.

Two statutes framed the payment question. Article 104.002 of the Code of Criminal Procedure made counties liable for the medical expenses of prisoners confined in or kept under guard in the county jail, and its exceptions did not cover prisoners awaiting parole revocation hearings. Article 6166g made the Department of Corrections responsible for the medical care of prisoners "confined therein." The opinion declined to read "confined therein" as synonymous with legal custody. Read in its ordinary meaning, to confine is to restrain within limits, so a prisoner held in a county jail is not confined in the Department of Corrections. Because the parolee was in the actual custody of the county jail, the county was responsible for his medical care under article 104.002.

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.

Common questions

Who paid for a parole violator's medical care in county jail?

The county. The opinion concluded that under article 104.002 the county was responsible for the medical care of a parole violator held in its jail pending a revocation hearing.

Didn't the parolee remain in state custody?

Legally, yes. But the opinion distinguished legal custody from actual custody. Even though the parolee remained in the state's legal custody, he was in the actual custody of the county jail, and that controlled who paid.

Why didn't the Department of Corrections have to pay?

The statute making the department responsible covered prisoners "confined therein." The opinion read that phrase in its ordinary sense, so a prisoner physically held in a county jail was not confined in the department.

Did it matter that the county could not refuse to hold the prisoner?

The opinion noted the Board of Pardons and Paroles could require a county sheriff to accept such a prisoner, and that the county could not transfer him to the Department of Corrections before the required hearing. Even so, county responsibility for medical care followed from actual custody.

Background and statutory framework

Under the Adult Parole and Mandatory Supervision Law, parole releases a prisoner from imprisonment but not from the state's legal authority, and the parolee remains in the legal custody of the releasing institution while subject to the Board of Pardons and Paroles. When a parolee is suspected of a violation, the board can issue a warrant for his arrest, and Morrissey v. Brewer requires a revocation hearing near the place of the alleged violation, with the prisoner held pending that hearing.

The payment rule came from two statutes read together. Article 104.002 of the Code of Criminal Procedure placed medical costs for prisoners confined in the county jail on the county, with narrow exceptions (such as a change of venue, safekeeping, or a habeas corpus hearing) that did not include parole revocation. Article 6166g assigned the Department of Corrections responsibility for prisoners "confined therein." Applying the ordinary-meaning rule of Government Code section 311.011(a), the opinion held that actual physical confinement, not legal custody, determined which statute applied, so the county bore the cost.

Citations and references

Statutory and regulatory authorities:

• Code of Criminal Procedure article 104.002 (county liability for prisoner medical expenses)
• Code of Criminal Procedure article 42.18, section 2, and article 42.12, sections 15(f)(3) and 21(a) (parole and mandatory supervision)
• V.T.C.S. article 6166g (Department of Corrections medical care)
• 37 Texas Administrative Code section 145.45(g)
• Government Code section 311.011(a) (words construed by common usage)

Cases:

• Morrissey v. Brewer, 408 U.S. 471 (1972)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0743
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0743.pdf

Original opinion text

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

July 9, 1987

Honorable Gary Garrison
Ector County Attorney
Courthouse, Room 218
Odessa, Texas 79761

Opinion No. JM-743

Re: Liability for medical costs of an individual in a county jail awaiting a hearing for violation of parole conditions

Dear Mr. Garrison:

You ask whether the Texas Department of Corrections or the county of incarceration is responsible for the payment of medical care for a parole violator held in county jail pending a parole violation hearing.

The Adult Parole and Mandatory Supervision Law defines parole and mandatory supervision as the release of a prisoner from imprisonment but not from the legal authority of the state. Code Crim. Proc. art. 42.18, §2. Every prisoner on parole or mandatory supervision remains in the legal custody of the institution from which he was released but is subject to the orders of the Board of Pardons and Paroles. Code Crim. Proc. art. 42.12, §15(f)(3). If there is reason to believe that a parolee has violated a condition of his parole, the Board of Pardons and Paroles may issue a warrant authorizing the officers named in the warrant to take the parolee into "actual custody." Code Crim. Proc. art. 42.12, §21(a). The due process requirements of Morrissey v. Brewer, 408 U.S. 471 (1972), require that the parolee be given a revocation hearing at or near the location of the alleged violation. Pending the hearing on a charge of parole violation or violation of conditions of mandatory supervision, "a prisoner returned to custody shall remain incarcerated." Code Crim. Proc. art. 42.12, §21(a); art. 42.18, §14(a); 37 Texas Administrative Code §145.45(g). The Board of Pardons and Paroles may require a county sheriff to accept a prisoner of the board pending a parole revocation hearing. Representatives of a county where a parolee is detained on the basis of a prerevocation warrant issued by the Board of Pardons and Paroles may not transfer the parolee to the Texas Department of Corrections before completion or waiver of the required hearing. Attorney General Opinion JM-615 (1987).

Counties are liable for medical expenses of prisoners "confined in or kept under guard in the county jail." Code Crim. Proc. art. 104.002. Although there is an exception in article 104.002 for prisoners transferred from another county "on a change of venue, for safekeeping, or for a habeas corpus hearing," there is no exception for prisoners awaiting hearings on parole revocation. The Texas Department of Corrections is responsible for the medical care of prisoners "confined therein." V.T.C.S. art. 6166g. See generally Attorney General Opinion JM-730. You suggest that because a parolee is in the legal custody of the Department of Corrections, he should be considered to be "confined" in the Department of Corrections rather than county jail for purposes of determining liability for medical care.

Article 6166g makes the Texas Department of Corrections responsible for the medical care "of prisoners confined therein." Cf. Attorney General Opinion JM-580 (1986) (authority of TDC to assess medical cost of hospitalization of infant born to an inmate). Even though a prisoner incarcerated in a county jail pending a parole violation hearing is in the legal custody of the Department of Corrections, he is in the actual custody of the county jail. We find no basis for construing the term "confined therein" in article 6166g to be synonymous with legal custody. Absent any indication of contrary legislative intent, we must read "confined therein" in its ordinary meaning. Gov't Code §311.011(a) (words shall be construed according to common usage). The ordinary meaning of "confine" is "to restrain within limits." Webster's New International Dictionary (2d ed.). See Attorney General Opinion JM-730. A prisoner incarcerated in a county jail is not confined in the department of corrections. We conclude, therefore, that a county is responsible for medical care for a parole violator incarcerated in a county jail pending a parole revocation hearing pursuant to article 104.002.

SUMMARY

Medical care for a parole violator incarcerated in a county jail pending a parole revocation hearing is the responsibility of the county under the provisions of article 104.002 of the Code of Criminal Procedure.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton and Sarah Woelk
Assistant Attorney General