THE ATTORNEY GENERAL 

OF TEXAS 

Honorable Dan V. Dent Opinion No. JM-1212 

District Attorney 

P. 0. Box 400 Re: Location of a prisoner work 

Hillsboro, Texas 76645 program facility established by 

section 496.054 of the Government Code (RQ-1884) 

Dear Mr. Dent: 

You ask two questions relating to the housing of inmates who are participants in the Work Program Plan" established by the Board of Pardons and Paroles Division of the 

Texas Department of Criminal Justice. 

Subchapter C of chapter 496 of the Government Code 

authorizes the Board of Pardons and'paroles Division to 

establish the work program plan. Under the plan, eligible 

persons in the custody of the Institutional Division of the 

Department of Criminal Justice, either in a unit of the 

institutional division or a county jail, are granted the 

privilege of working 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 a work facility under the plan remain in the legal and 

technical custody of the pardons and paroles division. Id. 

55 496.053, 496.054(b)(2). 

To be eligible to receive participants in the 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). It must be certified by the 

American Correctional Association, provide on-site industry 

programs allowing full-time participation by residents of 

the facility, and it must be operated pursuant to contract 

between the pardons and paroles 

municipality. 

division and the county or 

Id. 5 496.052(a), (b). The county or municipality may subcontract with a private vendor to construct, 

operate, or manage the facility. Id. § 496.052(d). 

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Honorable Dan V. Dent - Page 2 (JM-1212) 

The pardons and paroles division is required to grant 

work program privileges under "such rules, regulations, and 

conditions as provided by this Act." Id. S 496.051. Rule: 

making authority is granted 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 "Quartering of Work Program Residents," is the focus of your 

inquiry. It provides 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 not be granted work 

program privileges until suitable facilities 

for quartering such resident have been provided in the area where the resident has 

obtained employment or has an offer of employment, or in a designated work facility that 

combines employment facilities and living 

quarters for the resident and is located 

within 100 miles 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 ask what constitutes a work program participant's "recorded place of residence" for purposes of determining the area to be served by a designated work facility. 

You also ask whether a person in the custody of the pardons 

and paroles division may be quartered in a work facility 

that is more than 100 miles from the person's "recorded 

place of residence." 

Information furnished to indicates that 

questions are prompted by proposayz 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 of a county are eligible if any part of the 

county is within 100 miles of the work program facility. In 

effect, the pardons and paroles division construes the 

p. 6410 
Honorable Dan V. Dent - Page 3 (JM-1212) 

p 

phrase "recorded place of residence" to mean 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. 

A brief 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 is within a 

loo-mile radius of Clarksville, which we understand is the 

site of the Red River County facility. All of Dallas County 

is within a loo-mile radius of Itasca. 

Under the pardons and paroles division's reading of 

subsection 3(a), all persons eligible to participate in the 

work program plan who reside anywhere in Dallas County are 

included in the 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 of Dallas County serves to 

bring everyone within that county within that 

radius. 

The term "recorded place of residence" is not defined 

in subchapter C of chapter 496, nor is the pardons and 

paroles division given specific guidance in determining a 

work program participant's recorded place of residence. In 

ascertaining the meaning of this language, it is appropriate 

to consider, among other things, legislative history, the 

common law, laws on the same or similar subjects, the object 

sought to be attained, the consequences of a particular construction of the language, and the administrative construction of the term. See Gov't Code § 311.023. 

The legislative history of the work program plan does 

not resolve the issue of the meaning of "recorded place of 

residence." Subchapter C of chapter 496 was enacted as part 

of a comprehensive bill reorganizing and amending several 

laws governing the criminal justice system. H.B. 2335, Acts 

1989, 71st Leg., ch. 785, s 4.19, at 3523. The provisions 

P. 6411 
Honorable Dan V. Dent - Page 4 (JM-1212) 

authorizing the work 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 one meaning of the phrase "recorded place 

of residence." 

In its original form, House Bill 2383 made no reference 

to the residence of an eligible inmate or the placement of 

an inmate in a work facility within a specified distance of 

the inmate's residence. A committee substitute first 

proposed that an eligible inmate could be placed in a work 

facility that was within 80 miles of the inmate's recorded 

place of residence. 

Testimony of the author of the bill at the public 

hearing on House Bill 2383 reveals that the work program 

plan was inspired by recommendations of the Legislative 

Budget Board to the Texas Department of Corrections (now the 

institutional division). Public Hearina on H.B. 2383 Before 

the House Comm. on Corrections, 71s.t Leg. (April 19, 1989) 

(testimony of Rep. Bob Melton) (tape available 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, it was reported, would contribute to.the preservation of the family unit by allowing the inmate to contribute 

to his family's support and by allowing the family greater 

and closer access to the inmate while he served the 

remainder of his sentence. Id.; Public Hearinu on H.B. 2383 

Before the House Comm. on Corrections, (April 19, 1989) 

(testimony of Ann Lynn McElroy) (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 

the work program provisions suggests that the then 80-mile 

radius should be measured from the actual residence of the 

inmate's family or dependents 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 in the conference committee on House Bill 2335 to 

its present form. The pardons and paroles division has 

supplied us with a copy of a letter from Senator Bob 

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Honorable Dan V. Dent - Page 5 (JM-1212) 

McFarland who co-chaired the conference committee that added 

the work program provisions to House Bill 2335. Senator 

McFarland writes that prior to adoption of the final conference committee report he advised a member of the committee that he understood the bill would 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 is appropriate to decide an issue of 

statutory construction solely with intrinsic aids rather 

than legislative history. 2A Singer, Sutherland Statutorv 

Construction 55 48.01, 48.02 (Sands 4th ed. 1984). We think 

this rule is inappropriate here, since the Code Construction 

Act permits consideration of legislative history in addition 

to other factors in ascertaining the meaning of an ambiguous 

statute. See Gov't Code § 311.023. 

these additional factors supports 

The preponderance of 

a narrow 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 in arriving at the meaning of a statute. It is also 

appropriate to examine the meaning of the same or similar 

language in other 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, it will generally be construed to have the same 

meaning in both unless a different meaning is indicated. 

See Brown v. Darden, 50 S.W.Zd 261 (Tex. 1932). This rule 

is particularly applicable where the meaning of the language 

has been judicially determined. Id. 

The operative component of the phrase "recorded place 

of residence" is "residence.N~l For purposes of determining 

1. Our research has shed no light on the meaning of 

the word "recorded" in the phrase "recorded place of residence." By "recorded," the legislature may have meant the 

inmateIs place of residence as reflected in the records of 

the institutional division or pardons and paroles division 

(Footnote Continued) 

P. 6413 
Honorable Dan V. Dent - Page 6 (JM-1212) 

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,u but adds that the term means "one's home and 

fixed place of habitation to which 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" in the same terms for purposes of statute governing 

interception of oral, wire, or electronic communications by 

law enforcement agencies). 

The courts caution that residence is an elastic term 

that is difficult to define. Mills v. Bartlett, 377 S.W.2d 

636 (Tex. 1964). Residence may be temporary or permanent in 

nature, but it generally requires some condition greater 

than mere presence. See Whitnev v. State, 472 S.W.Zd 524 

(Tex. Crim. App. 1971). Most cases characterize residence 

as a person'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 Priniincf Co. 

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 a measurement far more precise than 

simply the county the inmate calls home. 

More important, "residence" takes its meaning in light 

of the object or purpose of the law in which it is employed. 

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, it may only 

mean that the pardons and paroles division inquire of the 

inmate where he considers his residence to be or where 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 is under an obligation to provide support 

to the family. 

2. An inmate of a penal institution does not, while an 

inmate, acquire residence at the place where the institution 

is located. Elec. Code 5 1.015(e). 

P. 6414 
Honorable Dan V. Dent - Page 7 (~~-1212) 

496.051 of the Government Code provides an inventory of the 

objectives of the work program plan: 

The board of pardons and paroles division 

of the Texas Department of Criminal Justice 

is hereby authorized to grant work program 

privileges, under the 'Work Program Plan,' as 

hereinafter provided, which shall include 

programs and procedures for eligible persons 

in the custody of the institutional division 

of the Texas Department of Criminal 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. and maintenance, under 

such rules, regulations, and conditions as 

provided by this Act. (Emphasis added.) 

Four objectives of the work program plan relate to the 

inmate's preexisting obligations to reimburse the state and 

victims of his 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 recovering court costs, restitution, and expenses would require 

placing an eligible inmate in a work facility that is within 

100 miles 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 or dependents and easing the inmate's 

return to society. We think a narrow, precise construction 

of the phrase "recorded place of residence" -- i.e., one 

that defines residence as a person's place of abode, 

dwelling, or habitation -- would be more in keeping with 

these goals. . . 

As for the consequences of the pardons and paroles 

division's construction of "recorded place of residence," 

it might be argued that inconvenience to the inmate and 

families resulting from the agency's application of the 

statute are minimal in the case of Red River County when 

compared to the ensuing administrative convenience. While 

that may be true in this instance, it is not difficult to 

envision a situation where this interpretation results in 

extreme hardship for those who were intended to benefit from 

the loo-mile radius limitation of subsection 3(a). For 

example, if a secure work facility were to be constructed in 

P. 6415 
Honorable Dan V. Dent - Page 8 (JM-1212) 

southern Ector County, its eligible inmate population could 

include inmates from as far away as Presidio and the Big 

Bend area, a distance of nearly 200 miles. 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, 

or nearly so, with the statute itself. Burrouahs Lvles 

181 S.W.2d 570 (Tex. 1944); Stanf rd v. Butler 1:; S W.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 of a 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.); 2 Tex. Jur. 3d, 

Administrative Law 5 7. Furthermore, the courts will not 

adhere to the construction of a 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, no writ). 

The legislative history of the work 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 is not consistent with the 

goals of the work program plan. An eligible person's residence for purposes of the program is, in our opinion, the 

person's actual place of abode, dwelling, or habitation. 

Accordingly, a person in the custody of the pardons and 

paroles division may not be relocated to a "designated work 

facility" under subsection 3(a) if the facility is more than 

100 miles from the actual abode, dwelling, or habitation. 

SUMMARY 

An eligible person's "recorded place of 

residence" for the purposes of subsection 

3(a) of section 496.054 of the Government 

Code is the person's actual place of abode, 

dwelling, or habitation. A person may not be 

placed in a "designated work facility" pursuant to subsection 3(a) if the facility is 

pi. 6416 
Honorable Dan V. Dent - Page 9 (JM-1212) 

more than 100 miles from the actual abode, 

dwelling, or habitation. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER. 

First Assistant Attorney General 

LOU MCCRKARY 

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 

p. 6417