The Attorney General of Texas 

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 

1607 Main Sl.. Suite 14Ul 

oallrr. TX. 7sM1-4709 

21417424944 

4824 Alberla Ave.. Suite 160 

El Paso. TX. 799052793 

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1220 Oallas Ave.. Suite 202 

Houston. TX. 7700269SS 

7 13mio.0666 

606 Bromluay. Suite 312 

Lubbock. TX. 79401.3479 

8061747~5238 

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McAllan. TX. 7&W-105 

5121682.4547 

200 Main Plaza. Suite 409 

San Antonio. TX. 762052797 

512122s.4191 

Mr. Don R. Stiles 

Executive Director 

Texas Adult Probation Commission 

P. 0. Box 12427 

Austin, Texas 78711 

Opinion No. 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 

Dear Mr. Stiles: 

You have asked these questions: 

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 facility other than a 

jail or prison? If the ansver is yes. who would 

hold title to the ,land and/or building? 

2. Can a district adult probation department 

utilize judicial district funds to build a 

building, or to purchase and place a manufactured 

! building, either mobile or fixed and attached to a 

foundation, upon land leased from a county, 

private citizen. company or corporation to be used 

by the department as a colPunity based 

correctional facility other than a jail or prison? 

If the answer is yes. who would hold title to the 

building? 

You have Informed us that the term “judicial district funds” refers to 

the “stnte aid” which is authorized by article 42.121 of the Code of 

Criminal Procedure. 

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 in pertinent part: 

It shall be the responsibility of the county or 

counties comprising the judicial district or 

P. 7 
Mr. Don R. Stil~es - Page 2 (JM-3) 

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. 

(Emphasis added). 

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 following manner: 

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 

Testimony before a legislative comktee 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. (Emphasis added). 

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 equally applicable 

to an "adult community-baaed correctional 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 correctional progra5ra and services and 

the land upon which these buildings are situated constitute "physical 

facilities" within the meaning of section 10(g). It therefore follows 

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-based correctional 

service. You contend, however, that state-aid furnished to judicial 

P. 8 
I. 

. . 

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 article which can be 

read as supporting this conclusion. In our opinion. however. the 

legislature did not intend this language to be construed this broadly. 

Section 1.01 of article 42.121 provides: 

The purposes of this article are to make 

probation services available throughout the state, 

to improve the effectiveness of probation 

services. to provide alternatives to incarceration 

by providing financial aid to judicial districts 

for the establishment and improvement of probation 

services and cormsunity-based correctional programs 

and facilities other than jails or prisons. and to 

establish uniform probation administration 

standards. (Pmphasis added). 

See 14.01 (definition of "state-aid"). Section 4.03 provides: - 

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. 

Section 4.05 provides in part: 

(b) The fiscal officer designated for the 

district shall deposit all state-aid received 

under this article in a special fund of the county 

treasury, to be used solely for the provision of 

adult probation services and community-based 

correctional programs and facilities other than 

jails or prisons. 

You suggest that authority for adult probation departments to use 

state-aid for the purposes which you described in your questions can 

be found in the foregoing provisiona. 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 legislature did not Intend "state-aid" to be used to 

provide "physi~cal facilities" in which to house community-based 

correctional services and programs. See Code Construction Act. - 

P. 9 
Mr. Don R. Stiles - Page 4 (JM-3) 

V.T.C.S. art. 5429b-2. §3.03(3) (legislative history may be considered 

in construing code provision). In testimony on the proposed statute 

before the House Committee on Criminal Jurisprudence, a representative 

of the Texas Correctional Association 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 

funds while having local control and autonomy with 

the local district. (Emphasis added). 

Tape of public hearing on S.B. No. 39. supra. This 

indicates that the legislature's intent in enacting articles 

testimony 

42.12 and 

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 thrust of Attorney General 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 correctional programs. it would have provided answers 

to the many questions which would arise from this practice, &. (1) 

may a probation department use state-aid to purchase land or buildings 

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 interpreted as 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 

p. 10 
Mr. Don R. Stiles - Page 5 (JM-3) 

- 

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 to be used to establish, maintain, or improve 

probation and corrmpunity-based correctional programs and services. not 

to purchase or build "physical facilities" in which to house them. 

The provision of these facilities is among the specific reaponsibilities of the counties. Attorney General Opinion H-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 

correctional programs and services 

dzo#& 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Aaaistant Attorney General 

DAVID R. RICHARDS 

Executive Aasiatant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison. Chairman 

Jon Bible 

Rick Gilpin 

David Harris 

Jim Hoellinger 

p. 11