ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

February 1,2007 

The Honorable Rodney Ellis 

Chair, Committee on Government Organization 

Texas State Senate 

Post Office Box 12068 

Austin, Texas 7871 l-2068 

Opinion No. GA-05 12 

Re: Whether the Texas Department of 

Criminal Justice may adopt a rule or policy 

requiring mandatory testing of incoming 

offenders for human immunodeficiency virus 

(RQ-05 1 S-GA) 

Dear Senator Ellis: 

You ask whether the Texas Department of Criminal Justice (the “TDCJ”) may adopt a rule 

or policy requiring mandatory testing of incoming offenders for human immunodeftciency virus 

(“HIV”).’ 

Chapter 492 of the Government Code describes the powers and duties of the Texas Board 

of Criminal Justice. The Texas Board of Criminal Justice (the “Board”) governs the TDCJ. TEX. 

Gov’TCODEANN. $5 491.001(l), 492.001 (Vernon 2004). The Board is authorized to “adopt rules 

as necessary for its own procedures and for operation” of the TDCJ. Id. 3 492.013(a). Chapter 493 

of the Government Code describes the organization and operation of the TDCJ. Among 

the divisions within the TDCJ are “the institutional division” and “the state jail division,” Id. 

5 493,002(a)(2), (4). The institutional division is directed to “operate and manage the state prison 

system.” Id. 5 493.004. The state jail division is required to “operate and manage state jails to 

confine defendants described by Section 507.002.” Id. 5 493.0051.* 

In construing a statute, we must give effect to the Legislature’s intent. See Albertson s, Inc. 

v. SincZai+, 984 S.W.2d 958, 960 (Tex. 1999). In order to ascertain that intent, we begin by 

construing a statute according to its plain language. See In re Cunales, 52 S.W.3d 698,702 (Tex. 

2001). Section 501.054(i) of the Government Code addresses HIV testing of inmates in the 

institutional division and provides: 

‘Letter from Honorable Rodney Ellis, Chair, Senate Committee on Government Organization, to Honorable 

Greg Abbott, Attorney General of Texas (Aug. 2, 2006) (on file with the Opinion Committee, also available at 

http://www.oag.state.tx.us) [hereinafter Request Letter]. 

%ction 507.002 provides that “[t]he state jail division may confine in a state jail felony facility authorized by 

this subchapter defendants required by a judge to serve a term of confinement in a state jail felony facility following a 

grant of deferred adjudication for or conviction of an offense punishable as a state jail felony.” TEX. GOV’T CODE ANN 

3 507.002 (Vernon 2004). 
The Honorable Rodney Ellis - Page 2 (GA-0512) 

The institutional division may test an inmate confined in a 

facility operated by the [institutional] division for human 

immunodeficiency virus at any time, but must test an inmate who is 

eligible for release before the inmate is released from the division. If 

the institutional division determines that an inmate has a positive test 

result, the division may segregate the inmate from other inmates. The 

institutional division shall report the results of a positive test to the 

Department of State Health Services for the purposes of notification 

and reporting as described by Sections 81.050-81.052, Health and 

Safety Code. 

TEx. GOV’T CODE ANN. 5 501.054(i) (Vernon Supp. 2006) (emphasis added). This section was 

amended by the Seventy-ninth Legislature in House Bill 43. See Act of May 25,2005,79tb Leg., 

R.S., ch. 1184,s 1,2005 Tex. Gen. Laws 3891,389l. As the Senate sponsor ofthis bill, you state 

that it “required mandatory HIV testing for all offenders prior to the release of an offender.” Request 

Letter, supra note 1, at 1. In addition to this requirement, House Bill 43 also added language that 

permits the institutional division of TDCJ to test an inmate for HIV “at any time.” Act of May 25, 

2005,79th Leg., R.S., ch: 1184, § 1,2005 Tex. Gen. Laws 3891, 3891; TEX. GOV’T CODE ANN. 

5 501.054(i) (Vernon Supp. 2006). 

Because the plain language of section 501.054(i) permits the institutional division to test an 

inmate confined in any of its facilities “at any time,‘,’ the Board may, but is not required to, adopt a 

rule or policy that compels mandatory IIV testing for incoming offenders to the institutional 

division. 

We next ‘consider chapter 507 of the Government Code, which relates to the state jail 

division. Another portion of House Bill 43 amended section 507.023(b) of the Government Code 

to read as follows: 

The state jail division shall adopt a policy for handling a 

defendant with AIDS or HIV and shall test a defendant for AIDS or 

HIV in the same manner and subject to the same conditions as apply 

to the institutional division under Section 501.054. 

TEX. GOV’T CODE ANN. $507.023(b) (Vernon Supp. 2006). The only change made to this section 

was the substitution of the phrase “shall test” for “may test.” Act of May 25,2005,79th Leg., R.S., 

ch. 1184, 3 1, 2005 Tex. Gen. Laws 3891, 3891. The state jail division, like the institutional 

division, is governed by the Board, and the Board is authorized to “adopt rules as necessary for its 

own procedures and for operation” of the TDCJ. TEX. GOV’T CODE ANN. $5 492.001, .013(a) 

(Vernon 2004). ‘The plain language of section 507.023(b) applies to the state jail division the terms 

of section 501.054(i), which as we have noted permits, but does not require, the Board to adopt a 

policy requiring mandatory HIV testing for incoming offenders. 

We conclude that the Board is authorized to adopt a rule or policy requiring mandatory 

testing for human immunodeficiency virus of incoming offenders in both the institutional division 

and the state jail division. 
The Honorable Rodney Ellis - Page 3 (GA-0512) 

SUMMARY 

The Texas Board of Criminal Justice is authorized to adopt 

a rule or policy requiring mandatory testing for human 

immunodeficiency virus of incoming offenders in both the 

institutional division and the state jail division, 

Very truly yours, 

RENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Rick Gilpin 

Assistant Attorney General, Opinion Committee