### THE ATTORNEY GENERAL OF TEXAS

Honorable DanV. Dent Opinion No. JM-1212 District Attorney P. 0. Box 400 Re: Location of aprisoner work Hillsboro, Texas 76645 program facility established by section 496.054 of the Government Code (RQ-1884)

DearMr. Dent:

You ask two questions relating to thehousing of inmates who are participants inthe Work Program Plan" established by the Board of Pardons and Paroles Division of the Texas Department ofCriminal Justice.
Subchapter C of chapter 496 of the Government Code authorizes the Board of Pardons and'paroles Division to establish thework program plan. Under the plan, eligible persons inthe custody of the Institutional Division of the Department of Criminal Justice, either in aunit of the institutional division ora county jail, are granted the privilege ofworking outside the state prison system at a work facility owned and operated ity. by a county or municipalGov't Code 55 496.052(b), 496.053. Persons assigned to awork facility under the plan remain inthe legal and technical custody of the pardons and paroles division. Id. 55 496.053, 496.054(b)(2).

Tobe eligible to receive participants inthe program, a facility must be a "secure community residential facility," allowing the supervision and monitoring of the residents' interior and exterior movements and activities. Id. §§ 496.051(4), 496.052(a). Itmust be certified by the American Correctional Association, provide on-site industry programs allowing full-time participation by residents of the facility, and itmust be operated pursuant to contract between the pardons andparoles municipality. division and the county or

Id. 5496.052(a), (b). The county or municipality may subcontract with aprivate vendor to construct, operate, ormanage the facility. Id. §496.052(d).

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The pardons and paroles division isrequired to grant work program privileges under "such rules, regulations, and conditions asprovided by thisAct." Id. S496.051. Rule: making authority isgranted by section 496.054(b)(3), which provides that the "Texas Board of Criminal Justice shall adopt rules for the conduct of residents transferred under this Act."

Subsection 3(a) of section 496.054, entitled "Quarteringof Work Program Residents," is the focus of your inquiry. Itprovides the following:

The pardons and paroles division shall, as the need becomes evident, designate facilities in the area of such resident's employment, for quartering residents with work program privileges. A resident may notbe granted work program privileges until suitable facilities forquartering such resident have been provided in the area where the resident has obtained employment orhas an offer of employment, or in adesignated work facility that combines employment facilities and living quarters for the resident and is located within 100miles of that resident's recorded place of residence. (Emphasis added.)

Subsection 3(a) forbids the relocation of an inmate to a work facility unless suitable quarters are available in either of two settings. Your questions are directed to the second set of circumstances.

You first askwhat constitutes awork program participant's "recorded place of residence" forpurposes of determining the area tobe served by adesignated work facility. You also askwhether aperson inthe custody of the pardons and paroles division may be quartered in awork facility that is more than 100miles from the person's "recorded place of residence."

Information furnished to indicates that questions are prompted byproposayz of your the city of Itasca and Red River County to construct separate work program facilities. We are advised that the pardons and paroles division has computed the eligible work program population by construing subsection 3(a) of section 496.054 to provide that residents ofacounty are eligible ifanypart of the county iswithin 100miles of thework program facility. In effect, the pardons and paroles division construes the

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p phrase "recorded place of residence" tomean the county in

which the person maintains residence. The importance of this decision is illustrated by applying the definition to the competition between Red River County and the city of Itasca.

Abrief submitted by the city of Itasca contains a number of exhibits, including maps and tables showing the number of eligible work program participants in counties within a loo-mile radius of the proposed sites. The maps show that only a small portion of Dallas County iswithin a loo-mile radius of Clarksville, which we understand is the site of the Red River County facility. All of Dallas County iswithin a loo-mile radius of Itasca.

Under the pardons and paroles division's reading of subsection 3(a), all persons eligible toparticipate in the work program plan who reside anywhere inDallas County are included inthe eligible population for the Red River County facility. Assuming both facilities are awarded contracts by the pardons and paroles division, any inmate from Dallas County assigned to one facility reduces the pool of potential residents at the other.

The city of Itasca's brief frames the issue thus:

The issue then is whether the fact that the loo-mile radius of the Red River site touches
a small portion ofDallas County serves to bring everyone within that county within that radius.

The term "recorded place of residence" isnot defined in subchapter Cof chapter 496, nor is the pardons and paroles division given specific guidance indetermining a work program participant's recorded place of residence. In ascertaining themeaning of this language, it isappropriate to consider, among other things, legislative history, the
common law, laws on the same or similar subjects, the object sought tobe attained, the consequences of aparticular construction of the language, and the administrative construction of the term. See Gov't Code § 311.023.

The legislative history of thework program plan does not resolve the issue of themeaning of "recorded place of residence." Subchapter Cof chapter 496was enacted aspart of acomprehensive bill reorganizing and amending several lawsgoverning the criminal justice system. H.B. 2335, Acts 1989, 71st Leg., ch. 785, s4.19, at 3523. The provisions

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authorizing thework program plan were added in conference committee; there is no recorded legislative history available. The substance of these provisions was originally proposed during the same legislative session by a separate bill, House Bill 2383. The legislative history of that proposal suggests onemeaning of the phrase "recorded place of residence."

In itsoriginal form, House Bill 2383made no reference to the residence ofan eligible inmate or the placement of
an inmate inawork facility within a specified distance of the inmate's residence. A committee substitute first proposed that an eligible inmate could be placed ina work facility that waswithin 80 miles of the inmate's recorded place of residence.
Testimony of the author of the bill at the public hearing onHouse Bill 2383 reveals that the work program planwas inspired by recommendations of the Legislative Budget Board to the Texas Department ofCorrections (nowthe institutional division). Public Hearina onH.B. 2383 Before theHouse Comm. on Corrections, 71s.tLeg. (April 19, 1989) (testimony ofRep. BobMelton) (tapeavailable through House Technical Services). The feature of the work program receiving the greatest commentary was its effect on families and dependents of work program participants. The work program, itwas reported, would contribute to.the preservation of the family unit by allowing the inmate to contribute tohis family's support and by allowing the family greater and closer access to the inmate while he served the remainder ofhis sentence. Id.; Public Hearinu onH.B. 2383 Before the House Comm. on Corrections, (April 19, 1989) (testimony of Ann LynnMcElroy) (tape available through House Technical Services).

The recording of this hearing contains no testimony confirming the pardons and paroles division's construction of the phrase "recorded place of residence." Indeed, the only available public record of the legislative history of thework program provisions suggests that the then 80-mile radius should bemeasured from the actual residence of the inmate's family ordependents or the actual residence in which the inmate intends to settle following release from custody.

The language of subsection 3(a) of section 496.054 was changed inthe conference committee on House Bill 2335 to itspresent form. The pardons andparoles division has supplied us with a copy of a letter from Senator Bob

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McFarland who co-chaired the conference committee that added thework program provisions toHouse Bill 2335. Senator McFarland writes that prior to adoption of the final conference committee report he advised amember of the committee that heunderstood thebillwould bring Dallas within the area served by the Red River County facility. It is inappropriate, however, to consider post-enactment statements of legislative intent when construing an ambiguous statute. See. e.s Commissioners' Court El Paso Countv El Paso Countv Shekiff's DeDUtieS Ass'n, 620 S.W.2d 9% (Tex.Civ. App. -El Paso 1981,writ ref'd n.r.e.).

Where legislative history is inconclusive one authority concludes that it isappropriate to decide an issue of statutory construction solely with intrinsic aids rather than legislative history. 2A Singer, Sutherland Statutorv Construction 5548.01, 48.02 (Sands4th ed. 1984). We think this rule is inappropriate here, since the Code Construction Act permits consideration of legislative history inaddition to other factors inascertaining themeaning of an ambiguous statute. See Gov't Code §311.023. these additional factors supports The preponderance of
anarrow construction of the phrase "recorded place of residence."

Section 311.023 of the Government Code allows consideration of laws on the same or similar subjects and the common law inarriving at themeaning ofa statute. It is also appropriate to examine themeaning of the same or similar language inother statutes. See Texas Bank &Trust Co. v. Austin, 280 S.W. 161 (Tex. 1926). When the same or similar language is employed in the same connection in different statutes, itwill generally be construed tohave the same meaning in both unless adifferent meaning is indicated. See Brown v. Darden, 50 S.W.Zd 261 (Tex.1932). This rule isparticularly applicable where themeaning of the language has been judicially determined. Id.

The operative component of the phrase "recorded place of residence" is "residence.N~l Forpurposes ofdetermining

1. Our research has shed no light on themeaning of theword "recorded" inthe phrase "recorded place of residence." By "recorded," the legislature may have meant the inmateIs place of residence as reflected inthe records of the institutional division or pardons and paroles division (Footnote Continued)

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tuition rates at state institutions of higher education, residence is defined simply as "domicile." Educ. Code § 54.052(a)(l). The Election Code also defines residence as qqdomicile,ubut adds that the termmeans "one's home and fixedplace ofhabitation towhich he intends to return after any temporary absence." Elec. Code g 1.015(a).2 See also Code Crim. Proc. art. 18.20, 5 l(13) (defining "reZ dence" inthe same terms forpurposes of statute governing interception of oral,wire, or electronic communications by law enforcement agencies).

The courts caution that residence is an elastic term that isdifficult to define. Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964). Residence may be temporary orpermanent in nature, but itgenerally requires some condition greater thanmere presence. See Whitnev v. State, 472 S.W.Zd 524 (Tex.Crim. App. 1971). Most cases characterize residence
as aperson's place of abode and use the terms residence, abode, and dwelling interchangeably. See. e.a Snvder 'v. Pitts, 241 S.W.Zd 136 (Tex. 1951); Houston PriniincfCo. Tennant, 39 S.W.2d 1089 (Tex.1931): Whitnev v. Stat:: sunra; Carlos v. State, 705 S.W.Zd 359 (Tex.App. -Beaumont 1986, pet. ref'd): Farmer's Mut. Protective Ass'n of Texas
v.Wriaht, 702 S.W.2d 295, 297 (Tex.App. -Eastland 1985, no,writ). These authorities suggest that subsection 3(a) of section 496.054 requires ameasurement farmore precise than simply the county the inmate calls home.

More important, "residence" takes itsmeaning in light of the object orpurpose of the law inwhich it isemployed. Switzerland General Ins. Co.v. Gulf Ins. Co., 213 -S.w.2d 161 (Tex.Civ. App. -Dallas 1948,writ dism'd). Section

(Footnote Continued)
or some other public source. On the other hand, itmay only
mean that the pardons and paroles division inquire of the inmatewhere he considers his residence to be orwhere he intends to reside following release from custody. In light of the purposes of the work program, it would also be appropriate to consider the residence of the inmate's family where the inmate isunder anobligation to provide support to the family.

2. An inmate of apenal institution does not,while an inmate, acquire residence at the place where the institution is located. Elec. Code 5 1.015(e).

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496.051 of the Government Code provides an inventory of the objectives of thework program plan:

The board ofpardons andparoles division of the Texas Department ofCriminal Justice ishereby authorized to grant work program privileges, under the 'WorkProgram Plan,' as hereinafter provided, which shall include programs and procedures foreligible persons inthe custody of the institutional division of the Texas Department ofCriminal Justice to contribute to court-ordered restitution, pavment of court COStS. SUDDOrt for the person's familv and denendents. savinas for the oerson's release. and the exoenses of the person's room. board. andmaintenance, under such rules, regulations, and conditions as provided by thisAct. (Emphasis added.)

Four objectives of thework program plan relate to the inmate's preexisting obligations to reimburse the state and victims ofhis crimes and to support his family. The fifth relates to the inmate's preparation for his return to society.

We see no reason why the state's interests in recoveringcourt costs,restitution, and expenses would require placing an eligible inmate inawork facility that iswithin 100miles from the inmate's recorded place of residence. The loo-mile radius of subsection 3(a) therefore must pertain specifically to the goals of providing support to the inmate's family ordependents and easing the inmate's return to society. We think anarrow, precise construction of the phrase "recorded place of residence" --i.e., one that defines residence as a person's place of abode, dwelling, orhabitation --would bemore inkeeping with these goals. . .

As for the consequences of the pardons and paroles division's construction of "recorded place of residence," itmight be argued that inconvenience to the inmate and families resulting from the agency's application of the statute areminimal in the case ofRed River County when compared to the ensuing administrative convenience. While thatmay be true inthis instance, it isnot difficult to envision a situation where this interpretation results in extreme hardship for thosewho were intended tobenefit from the loo-mile radius limitation of subsection 3(a). For example, ifa secure work facility were tobe constructed in

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southern Ector County, its eligible inmate population could include inmates from as far away as Presidio and the Big Bend area, adistance of nearly 200miles. This variation is inconsistent with the goals of supporting family and dependents and easing the inmate's transition to freedom.

An accepted principle of statutory construction is that the construction placed upon a statute by the agency charged with its administration is entitled to great weight, nc parte Roloff, 510 S.W.Zd 913 (Tex.1974); State v. Arkansas Dock and Channel Co., 365 S.W.2d 220 (Tex.Civ. App. - San Antonio 1963,writ ref'd), especially where contemporaneous,
ornearly so,with the statute itself. Burrouahs Lvles 181 S.W.2d 570 (Tex. 1944); Stanf rdv. Butler 1:; SW.2d 269 (Tex.1944); Attorney General gpinion JM-lli2 (199Oj,at 25. On the other hand, the courts will not respect an agency's interpretation ofa statute that is contrary to the clear meaning of an unambiguous statute. Texas Health Facilities Comm'n v. El Paso Medical, 573 S.W.2d 291 (Tex. Civ. App. -Tyler 1978,writ ref'd n.r.e.); 2Tex. Jur. 3d, Administrative Law 57. Furthermore, the courts will not adhere to the construction ofa statute by an administrative agency where such construction is clearly erroneous or inconsistent with the enabling statute. State v. United Bondinc Ins. Co., 450 S.W.Zd 689 (Tex. Civ. App. - Austin 1970, nowrit).

The legislative history of thework program provisions, the judicial construction of the term N'residence,t' and the consequences of the pardons and paroles division's construction of subsection 3(a) of section 496.054 persuade us that its construction of the statute isnot consistent with the goals of thework program plan. An eligible person's residence forpurposes of the program is, inour opinion, the person's actual place of abode, dwelling, or habitation. Accordingly, a person in the custody of the pardons and paroles division may notbe relocated to a "designated work facility" under subsection 3(a) ifthe facility ismore than 100miles from the actual abode, dwelling, orhabitation.

SUMMARY

An eligible person's "recorded place of residence" for the purposes of subsection 3(a) of section 496.054 of the Government Code isthe person's actual place of abode, dwelling, orhabitation. Aperson may notbe placed ina "designated work facility" pursuant to subsection 3(a) ifthe facility is

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more than 100 miles from the actual abode, dwelling, orhabitation.

JIM MATTOX Attorney General of Texas

MARY KELLER. First Assistant Attorney General

LOUMCCRKARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Steve Aragon Assistant Attorney General

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