DAN MORALES

ATTORNEY GENERAL 

## Qljffice

ofthe Bttornep General &ate of Qexarr April 241992

Honorable Scott W.Johnson Reeves County Attorney County Courthouse P. 0. Box749 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 countyjails (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.2d451,453 (Tex. 1948); WichitaCountyv. Vance,217 S.W.2d702, 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” countyjails. 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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physician to provide medical services in the county jails turns on whether such a service is necessary to ensure the provision of “safeand 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

“safeand suitable jails,”for sections 351.002through 351.015ofthe 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 9351.010.

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 countyjails. Section 351.041designates the sheriff as “the keeper ofthe countyjail and requires the sheriff “to exercise supervision and control over the jail.” Id 5351.041;Attorney General Opinion JM-1098 at 3. In a previous opinion considering the division ofduties 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 ofthejail. 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 countyjails 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, 152S.W.2dat 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 ofthe countyjail, 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 ofmedical services to the countyjails. See Galveston Countyv.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,

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including, if regular services of a physician are required,’ contracting with a physician. C$Anderson, 152S.W.2d at 1086 (holding that, despite fact that statute places sheriff in charge ofcourt 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 countyjails authorizes the sheriff to schedule the physician’s services at thejail.

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 Q351.oM, Gov’tCode 5 511.009(a)(l) - (4), has promulgated a rule that requires the commissioners court ofeach county to provide

such medical services as the circumstances and locality of the detention facility2permit, 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 ofa 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 tothe jailsonly ifthe circamstanws and locality of thejails permit. See i&z pp. 3-4 (quo@ 37TA.C. 0 273.1).

%IICcommission’s rules do not spc&aUy d&c Uctention facility: H-r, the rides defioe. ‘[flacili~as‘[a]

jailorl&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 “@]ockup” as“[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 Asboth“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).

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37 T-A-C. 9273.1 (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 countyjails.

DAN MORALES Attorney General ofTexas

%-he72d 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 theyarcrendered.”

See Acts 1991, ?&ILeg., 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

pursuant ochapter

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 sheriffwho doubts the competency of a ph+ian with whom the wramkionerswart hascontracted mayseek,inaddition

to otherpossible

remedies, a declaratory j&meat thatthephysician

isinwmpcteot

orender medical services iothewwtyjails.

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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

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