DAN MORALES 

ATTORNEY GENERAL 

Qljffice of the Bttornep General 

&ate of Qexarr 

April 241992 

Honorable Scott W. Johnson 

Reeves County Attorney 

County Courthouse 

P. 0. Box 749 

Pews, Texas 79772 

Opinion No. DM-111 

Re: Whether the county sheriff or the 

county commissioners court has the 

authority to choose a physician and 

schedule the physician to provide medical 

services to inmates incarcerated in the 

county jails (RQ-247) 

Dear Mr. Johnson: 

You have requested our opinion as to whether the county sheriff or the 

county commissioners court is statutorily authorized to choose a physician and 

schedule the physician to provide medical services to inmates incarcerated in the 

county jails. Your question involves extrapolation of those sections of the Local 

Government Code (the code) dividing responsibilities for the provision and maintenance of county jails between the county commissioners court and the county 

sheriff. 

Initially, we note that the powers of the county, exercised through the 

commissioners court, are only those that are expressly conferred upon it and defined 

in the constitution and statutes of this state, or reasonably inferred from a specific 

power. Attorney General Opinion JM-1160 (1990) at 2; see aLro Conrrler v. 

Laughlin, 214 S.W.2d 451,453 (Tex. 1948); Wichita County v. Vance, 217 S.W.2d 702, 

703 (Tex. Civ. App.-Fort Worth 1949, writ refd n.r.e.); Dodrou v. It4a&uZZ, 118 

S.W.2d 621, 623 (Tex. Civ. App.-Waco 1938, writ dism’d w.0.j.). However, if the 

constitution and statutes have conferred a right or obligation on the commissioners 

court, the commissioners court has implied authority to exercise broad discretion to 

accomplish the purposes underlying the constitutional or statutory provision. 

Anderson v. Wood, 152 S.W.2d 1084, 1085 (Ten 1941); Do&on, 118 S.W.2d at 623. 

The legislature has assigned to the county commissioners court the duty to provide 

“safe and suitable” county jails. Local Gov’t Code $351.001(a). Thus, the question 

of whether the commissioners court has authority to choose and schedule a 

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Honorable Scott W. Johnson - Page 2 (DM- 111) 

physician to provide medical services in the county jails turns on whether such a 

service is necessary to ensure the provision of “safe and suitable jails.” See Attorney 

General Opinion JM-1098 (1989) at 2. The commissioners court is not without 

guidance in determining what it must do to comply with its statutory duty to provide 

“safe and suitable jails,” for sections 351.002 through 351.015 of the code list various 

responsibilities of the commissioners court. Among the duties explicitly conferred 

upon the commissioners court is the duty to provide county jails that comply with 

sanitation and health requirements. Local Gov’t Code 9 351.010. 

As well as delineating the responsibilities of the county commissioners court, 

the code defines the responsibilities of the county sheriff in the operation of the 

county jails. Section 351.041 designates the sheriff as “the keeper of the county jail 

and requires the sheriff “to exercise supervision and control over the jail.” Id 

5 351.041; Attorney General Opinion JM-1098 at 3. In a previous opinion considering the division of duties between the commissioners court and the sheriff under the 

predecessors to sections 351.001(a) and 351.041 of the code, we stated that the 

authority of the commissioners court over the jail is limited to providing the jail 

adequate funding and broad operational guidelines, and that the sheriff bears 

responsibility for the actual operation of the jail. Attorney General Opinion H-1190 

(1978) at 3; see a!ro Attorney General opinion JM-1098 at 3. 

The authority and duty to contract, on behalf of the county, for services for 

the county jails also is split between the county commissioners court and the county 

sheriff. Generally, the commissioners court has sole authority to make contracts 

binding on the county unless a statute expressly grants the county sheriff or other 

county official the authority to contract for the county. Attorney General Opinion 

DM-67 (1991) at 2; Anderson, 152 S.W.2d at 1085. We find no provision in the code 

expressly authorizing the county sheriff to contract with a physician to provide 

medical services to inmates incarcerated in the county jails, unless the physician is 

an employee of the county jail, as opposed to an independent contractor. See Local 

Gov’t Code 3 151.003; cf: id 9 85.005(a) (authorizing sheriff, with approval of 

commissioners court, to employ prison guards). Thus, only the commissioners court 

can contract with a physician for the provision of medical services to the county jails. 

See Galveston County v. Dacie, 45 S.W. 798.799 (Tex. 1898) (holding that commissioners court statutorily authorized to contract with physician to provide medical 

services to prisoners and paupers). Furthermore, in our opinion, the commissioners 

court’s exphcit statutory responsibility to comply with sanitation and health 

requirements necessarily implies the responsibility to provide medical services, 

p. 562 
Honorable Scott W. Johnson - Page 3 IDM-111) 

including, if regular services of a physician are required,’ contracting with a 

physician. C$ Anderson, 152 S.W.2d at 1086 (holding that, despite fact that statute 

places sheriff in charge of court house., commissioners court has authority to employ, 

direct, and discharge janitor and elevator operator in court house). On the other 

hand, the sheriff’s statutory role as keeper of the county jails authorizes the sheriff 

to schedule the physician’s services at the jail. 

Our conclusion is consistent with a rule promulgated by the Texas 

Commission on Jail Standards (the commission). The commission, statutorily 

empowered to establish minimum standards for all aspects of county jails and 

prisoner care with which every county jail must comply, see Local Gov’t Code 

Q 351.oM, Gov’t Code 5 511.009(a)(l) - (4), has promulgated a rule that requires the 

commissioners court of each county to provide 

such medical services as the circumstances and locality of the 

detention facility2 permit, and comparable to what is generally 

available in the county, which may include, but shall not be 

limited to, the services of a licensed physician, the services of 

professional and allied health personnel, and hospital or similar 

services. The commissioners court should provide the services 

of a licensed physician who shall assume the responsibility as the 

director of medical services for the quality and availability of all 

medical services provided to jail inmates, and such physician 

may be the county health officer. 

‘A comuisioncrs court must provide. the services of a licensed physician to the jails only if the 

circamstanws and locality of the jails permit. See i&z pp. 3-4 (quo@ 37 TA.C. 0 273.1). 

%IIC commission’s rules do not spc&aUy d&c Uctention facility: H-r, the rides 

defioe. ‘[flacili~ as ‘[a] jail or l&up, including build@ and site.” 37 TA.C. 0 253.1. The ndcs define 

“@air as “[a] fadlity that b operated by or for a county gowmmcnt for the detention of persons for 

morctlula48hourq~oucehargerlwitba~edoflaw~ti~‘ Id Tberuksdehe 

“@]ockupas ” “[a] facility that is operated by or for a wlully govum eat for detcation for no loogcr than 

72 hours of persons charged with or ccmiucd of crimhl offensss.” Id As both “jail” and %ckup” arc 

facilities designed for detention, we conch& that the term “detention facility’ enwmpasscs both types 

of fmiliti~ as wn as o&c? facilities where pcrsoos convi&cd of aiminal offcascs are detained (q!., 

low-risk facilities and county wmdional centers). 

p. 563 
Honorable Scott W. Johnson - Page 4 (DM-111) 

37 T-A-C. 9 273.1 (footnote added).3 Accordingly, the commissioners court must 

provide a licensed physician or physicians to provide medical services to the county 

jails, if the circumstances and locality of the jails permit. We note that the 

commission’s rule suggests that the physician not only be licensed to practice 

medicine. but be competent to “assume the responsibility as the director of medical 

services for the quality and availability of all medical services provided to jail 

inmates.” 

SUMMARY 

A county commissioners court has the authority to contract 

with a licensed physician to provide medical services to inmates 

incarcerated in the county jails. A county sheriff has the 

authority to schedule medical services for the county jails. 

DAN MORALES 

Attorney General of Texas 

%-he 72d Leglslahtre amended the Code of Criminal Procedure article 104.002(d) to require 

.[a] person who is or was a priwner io a wuoty jail and received medical, dental, or health related 

scrviecs from a county or a hospital district.. . to pay for suck services when they arc rendered.” See 

Acts 1991, ?&I Leg., ch. 434,s 1; see alro Acts 1991 l2d Leg., ck. 14,s ZS4(19). If a prisoner cannot 

pay for tke smvices because he or she is indigent, the ColmtyJs rcspoasibiity is to assist the prisoner to 

apply for reimbursement pursuanto chapter 61 of the Health and Safety Code. Id For purposes of 

this opinion, we assume that the newly amended article 104.002(d) only affects the coun~‘s duty to pay 

for the medical services prisoners in the county jails receive; the county commhioners court remains 

rqxmsible for provkling tke medical services. 

‘A county slwlff has a duty to keep safely persons committed to the sheriff’s custody. See 

AJbd Y. Shuiffof Hanis County, 406 F. Supp. 649,669 (SD. Tcx. 1975). We do not address in this 

opinion the issue of whether a county sheriff who doubts the competency of a ph+ian with whom the 

wramkioners wart has contracted may seek, in addition to other possible remedies, a declaratory 

j&meat that the physician is inwmpcteoto render medical services io the wwty jails. 

p. 564 
Honorable Scott W. Johnson - Page 5 (DM- 111) 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RENEAH.IcKs 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Kymberly Oltrogge 

Assistant Attorney General 

p. 565