# TheAttorney General ofTexas

March 8, 1983 JIM MATTOX Attorney General

Supreme Court Buildin P.0. BOX 1254S Austin. TX. 78711.2S4S 5121475-2501 Telex 91om74.12a7 Telecopier 512l47502SS

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200 Main Plaza. Suite 409 San Antonio. TX. 762052797 512122s.4191 Mr.Don R. Stiles ExecutiveDirector TexasAdult ProbationCommission P. 0. Box 12427 Austin,Texas 78711 OpinionNo. JM-3

Re: Whether a district adult probation department mey use judicial district funds to purchase real property to use as a colnunity based correctional facility

DearMr. Stiles:

You have asked thesequestions:

1. Can a district adult probation department utilize judicial district funds to purchase land and/or buildings for use by the department as a c-nity based correctional facilityother thana jail or prison? If the ansver is yes. who would hold title to the ,landand/orbuilding?

2. Can a district adult probation department utilize judicial district funds to build a building, or to purchase and place a manufactured ! building, eithermobile or fixedand attached to a foundation, upon land leased from a county, private citizen. companyor corporationtobe used by the department as a colPunity based correctionalfacilityother thana jail or prison? If the answer is yes. who would hold title to the building?

You have Informedus that the term “judicialdistrict funds” refers to the “stnte aid” which is authorizedby article 42.121 of the Code of CriminalProcedure.

Article 42.12 of the Code of Criminal Procedure created adult probation departments in the judicial districts of this state. Sec. 10(a). Section 10(g)of article 42.12 provides inpertinentpart:

It shall be the responsibility of the county or counties comprising the judicial district or

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geographical area served by such district probation department to provide physical facilities. equipment, and utilities for an effective and professional adult probation and - adult colPmunity-based correctional service. (Emphasisadded).

In Attorney General Opinion H-1218 (1978). this office construed this provision. vhich at that time was part of section 10(f) of article 42.12, in the followingmanner:

In our oDinion. this Droviaion reauirea the counties to provide. from-their own funds and not from probation fees. 1 equipment. and utilities need; office. All other expenses district funds. which include Drobation fees. :he physical facilities, ed for the probation 5re to be paid from
Testimonybefore a legislativecomktee indicated that Senate Bill No. 39 made the responsible county

for facilities, utilities, and eauiDment. while the state was to be resDonsible for 'salaries. benefits. supplies, travel. and training. Tape of public hearing on S.B. 39, House Criminal Jurisprudence Comittee. March 29. 1977. See also Joint Advisory Committee on Governmental Operations - Subcomittee on Corrections,supre. (Emphasisadded).

See also Attorney General Opinion Mw-92 (1979). This opinion technically dealt only with the responsibility of the counties vis-a-vis "probation offices,"but its reasoning is equallyapplicable to an "adult community-baaedcorrectional service."since this term is contained in the same portion of section 10(g) that refers to a "probation" service. Accordingly, we believe that section 10(g) imposes upon the counties which comprise "the judicial district or geographical area served by such district probation department" the responsibility of providing, inter alia, the "physical facilities" which are necessary for an "effective and professional

. . . adult community-baaed correctional service." 1n our opinion, buildings needed to house comnity-b5sed correctionalprogra5ra and services and the land upon which these buildings are situated constitute "physical facilities"within themeaning of section 10(g). It thereforefollows that the responsibility for providing them rests with the county or counties to which section 10(g)refers.

As we read your correspondence to this office, you essentially achnowledge thet the counties are responsible for providing "physical facilities" for an effective adult cormnunity-basedcorrectional service. You contend, however, that state-aid furnished to judicial

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Mr. Don R. Stiles - Page 3 (JM-3)

districts under article 42.121 may also be used to establish such a facility. Admittedly. there is language in this articlewhich can be read as supporting this conclusion. In our opinion. however. the legislaturedid not intend this languageto be construedthisbroadly.
Section 1.01of article 42.121provides:

The purposes of this article are to make probation servicesavailable throughoutthe state, to improve the effectiveness of probation services. to providealternatives to incarceration by providing financial aid to judicial districts for the establishmentand improvementof probation servicesand cormsunity-based correctionalprograms and facilitiesother than jails or prisons.and to establish uniform probation administration standards. (Pmphasisadded).

See 14.01 (definitionof "state-aid"). Section4.03provides: - The district judge or judges in each judicial

district shall present data to the commission. determined by the cotiasion, which is necessary to determine the amount of state financial aid needed for use in maintaining and improving probation aervicaa and community-based correctional programs and facilities other than jails or prisons in the district.

Section4.05provides inpart:

(b) The fiscal officer designated for the district shall deposit all state-aid received under thisarticle in a special fundof the county treasury, to be used solely for the provision of adult probation services and community-based correctional programs and facilities other than jails orprisons.

You suggest that authority for adultprobationdepartments to use state-aid for the purposes which you described in your questions can be found in the foregoingprovisiona.which authorize the use of such aid for. inter alla. the "establishment" of community-based correctional "facilities." As noted,however,we disagree.

We first note that the legislative history of article 42.121 suggests that the legislaturedid not Intend "state-aid" tobe used to provide "physi~cal facilities" in which to house community-based correctional services and programs. See Code Construction Act. -

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V.T.C.S.art. 5429b-2. §3.03(3) (legislativehistorymay be considered in construing code provision). In testimony on the proposed statute before theHouse Committeeon Criminal Jurisprudence,a representative of theTexas CorrectionalAssociation stated:

The [Adult Probation Commisaionl would he a standard-setting agency that would subsidize probation services in each judicial district and each judicial district would maintain its autonomy. All judicial districts would have adequate probation services for the supervision and control of felons and misdemeananta. The county'

a reaponaibflity would be to provide facilities. equipment, and utilities. while state aid would provide salaries, benefits, supplies, mileage for travel, training, etc. This effort parallels to a great degree the functions of the Texas Education Agency as it relates to the standard-setting agency and the distribution of fundswhile having local controland autonomywith the localdistrict. (Emphasisadded).
Tape of public hearing on S.B. No. 39. supra. This indicatesthat the legislature's intent in enactingarticles testimony 42.12and 42.121 was to assign to both the counties and the state (acting through the Adult Probation Commission and, in turn, the judicial districts) certain specific responaibllitiea connected with the provision of community-based correctional services. and that the provision of "physical facilities" needed for such services la among the specific responsibilities of the counties. This was, of course. the thrustof AttorneyGeneral Opinion H-1218 (1978).

We also believe that if the legislature had intended to allow state-aid to be used to build or purchase "physical facilities" for cmnity-baaed correctionalprograms. it would have provided answers to themany questionswhich would arise from this practice,&. (1) may a probationdepartmentuse state-aid to purchase landorbuildings at any time. or must it wait until a county certifies that it la unable to provide necessary "physical facilities"? (2) if a judicial district may make such purchases. in whose name would title be held? The fact that article 42.121 in no way addreaaea these issues persuades us that its provisions should not be interpretedas broadly
as you suggest. In this context, we also note that although section 1.01 does contain language which arguably supports your conclusion, the language of section 4.03 cuts the other way. This provision states that the state-aid for which the judicial districts may apply is that needed for use in "maintaining and improving" probation services and community-based programs and facilities. "Hainteining

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- and improvi"g," in our opinion, neither denotes nor connotes

"purchasing"or "building."

In short,we conclude that the legislature moat likely intended article 42.121 state-aid tobe used to establish,maintain, or improve probation and corrmpunity-based correctionalprograms and services.not to purchase or build "physical facilities" in which to house them. The provision of these facilities is among the specific reaponsibilitiesof the counties. AttorneyGeneralOpinionH-1218 (1978).

SUMMARY
Judicial diatricta are not authorized to use state-aid obtained under article 42.121 of the Code of Criminal Procedure to purchase land or buildings in which to house community-baaed correctionalprograms and services

dzo#&

JIM MATTOX Attorney General of Texas

TOM GREEN FirstAaaistantAttorneyGeneral

DAVID R. RICHARDS ExecutiveAasiatantAttorneyGeneral
Preparedby Jon Bible AssistantAttorney General

APPROVED: OPINION COMMITTEE

Susan L. Garrison.Chairman Jon Bible Rick Gilpin David Harris Jim Hoellinger

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