## @ffice of the LZWmiep @eneral Sitate of tEexm DAN MORALES :,TTOHNCI CENEH,,L May 7, 1997

The Honorable Richard J. Miller BelI County Attorney P.O. Box 1127 Belton, Texas 76513 Opinion No. DM-439
Re: Whether ajuvenile court’s authority under Family Code section 51.12X$)

to “control the conditions and terms of detention and detention supervkion” supersedes tbe teams of a county contract with a’private corporation regardiig the operation of the county juvenile detention facility (RQ-921)
DearMr.Miller:
OnbehalfofBell County (the “couuty”), you ask about the relationship between Family Code, section 51.12(b)- wbicbgives tbejuvede cant of a county the authority to “control the conditions and terms of detention and detention supervision” - and a county contract authorizing a private corporation to operate the county juvenile detention kility. We conclude that section 51.12(b) is intended to authorize thejuvenile court to control the conditions of the county juvenile facility and that anycontract entered into by the county for the operation of a county juvenile facility is void to the extent it is inconsistent with section 51.12(b). Section 51.12 of the Family Code provides in pertinent part as follows: (b) The proper authoritiea in each county shall provide a suitable place of detention for children who are parties to proceed&s under this title, but the juvende cowl shall wnfrol the wna&ions and ferms of detention and ahntion supervision and shall petit visitation with the child at sll reasonable timea; (c) Ineachcounty,thejua& ofthejuwmile CWM and the members ofthe juvenile boardshaIlpersv.mallyinpecf he detention facilities and any public or private secure correctional kilities used for post-adjudication confinement that are located inthe county and operated under the authority of thejuvenile board at least annually and shall certia in writing to the authorities responsible for operating and giving tinancial support to the facilities and toThe Honorable Richard J. Miller - Page 2 (DM-439)

the Terra~

Juvenile Probation Commission that they are suitable or unsuitable for the detention of children in accordance with: (1) the requirements of Subsections (a), (fJ and (g); and
(2) minimumprofessional standa& forthe detention of children in preadjudication or post-adjudication secure continement promulgated by the Texas Juvenile Probation Commission or, at the election of thejuvenile board, the current standards promulgated by the American Correctional Associatioa (d)Noc~dshallbeplacedina~tythathasnotbeenoertifiadunder Subsection (c) of this section as suitable for the detention of children.

. . . In addition, we note that section 141.042(a)(4) of the Human Resources Code requires the Texas JwenileprobationCommissiontoadoptreasonablerulesthatprovide~ standards forjuvenile detention facilities. The Bell Cow Juvenile Board (the “ juvenile board”) is governed by section 152.0201 of the HumanResources Code and is composed of the county judge, the district judges of the county, thejudge ofCounty Court at Law No. 1 and thejudge of County Court at Law No. 2. You Worm usthatthejwenileboardhssdesignatedthecountycourtatLawNo. lasthejuvenilewurtforthe county. SeeFamcode~51.oQ@)~eachcounty.thecounty’sjuvenileboardshalldesignateone or more district, uiminal district, domestic relations, juvenile, or county courts or county courts at law as thejuvenile court

_. . .“).
You refer to the contract at issue as a %anagement agreement.“* You state that the management agreement authorizes the private corporation to operate, maintain and manage the juvkle detention fkility according to standah oftheTexas JuvenileProbation Commission, subject to the approval of the juvenile board. “The corporation is to develop its own written policies, procedures, and operation manuals concerning operation of the fhcility ‘andjuvenile supervision forThe Honorable Richard J. Miller - Page 3 (DM-439)

which it is responsible’ under the agreement, which pohc& must comply with legal requirementsn The private corporation isresponsiile for “day-to-day management of the facility, stafiing employee training, program services for juvenile detainees (with the advi[c]e and consent of the Juvenile Board), and providing seanity and supervision of thejuveniles.” You also state that “[t]he only role spelled out in the Management Agreement for the designated Juvenile Court is one of inspection.” Given this background, you ask the following series of questions:

what is the specific authority of the designated Juvenile Court.

. .? Jfthe quired policiesoftbe private corporation are adopted by the Juvenile Board, is the Juvenile Court empowered by Section 51.12(b) to ,order di&re.nt acdvities or policies independent of those adopted by the Juvenile Board, so long as minimum standards are met? Does the Juvenile Court have the statutory authity to specificallydirt& allaspects of the day-today operation of the detention fhcility within tbe standards established by the Juvenile Probation Commission, regardless of any agreement between a private corporation and the Juvenile Board and Commissioners Court? How does [section 5 1.12(b)] w-exist with other statutes
. __kven that it seems] the legislature intended that the Juvenile Board play the primary role in opemting and supervismg detention thcilities?
Your query requires us to construe the language in section 51.12(b) tbat gives thejuvenile court of a county the authority to “control the conditions and terms of detention and detention ape&ion.” W&your query, you enclose a letter briefwritten on behalf of the county by a private attorney expressing the view that this language in section 51.12(b) merely authorizes the juvenile court to control the terms and wnditions of detention of the particular juveniles coming before the court, butthat it giveathejuvenile wurt no general supervisory authority over the juvenile detention tkdity~ mhe extent oftbe Juvenile &arrt’s authority is limited to those juveniles directly under the hut’s jurisdiction, and only then to the extent newssary to insure that the thcility to which these spedicjuvdes are enhuted isoperated in accordance with law.” A letter Tom the Texas Juvenile Probation Commission, however, rejects this narrow interpretation ofthe language and insists that section 51.1 ’4b) givesjuvenile wurta control over the conditions and terms of detention and that to exercisethis authorityjuvenile courts “must have some abiity to intluence operations of the facility.”
We believethat the Texas Juvenile Probation Commission has the better of the two positions. The relevant language in section 51,12 was enacted in 1973 when the legislature adopted title 3 of the Familycode.2 As the following wmmentary explains, when title 3 was adopted, juveniles were 0th detained in county jails controlled by the wunly sheriff when understood in this contact, it is apparentthat the intent oflanguage at issue was to transfer supervisory authority for the detention

=Sse AdofMay25.1913.63dLeg., RS.. ch 544. $1.1973 Tex.Ga. Law 1460.1465-66.

p. 2450The Honorable Richard J. Miller - Page 4 W-439)

ofjuveniles Sam the sherift; the official responsible for supervising and controlling wunty jails, to tbejuvenile court:

Subsection(b), like prior Texas law, TexRev. Civ~Stat.Ann. art. 2338-1, 3 17,placestbe responsiii on local authorities to provide the space needed for the detention of children. The proper authorities in each county clearly includes the wmmissioners court; however, ifthe detention facility is in the countyjail the proper authorities would also include the shetiE. Thejuvenile court wntrol of “tbe conditions and terms of detention and detention supervision” is new to Texas law. The concept, however, is an old principle injuvenile proceedings: Thejuvenile~wurt judge isthe ultimate authority for the entire juvenile process and he, not the sheriff, should control the wnditions ofdetention and detention supervision Subsection (b), therefore, supersedes the general rule of Tex.Rev. Civ. S&t.Ann art. 5116 that “the ShaitTshall exe a supervision and wntrol overthejail,” to the extent that a county jail is used as a place of detention for children.

. . . Robert 0. Dawson, Delinquent Chitien and Chik&eninNeedof Supervision: Lk#man ‘ sComments to fide 3 ofthe TexasFamily GM& 5 TEX.TECH. L. REV.509,530-3 l(1974).
In enacting the language at issue in 1973, the legislature clearly intended to vest juvenile courts with authority over wunty fkilities used to detain juveniles. It is now the case thatjuveniles across the state are housed injuvenile detention facilities rather thau wunty jails.’ As the same wmmentator wrote in 1990,“When Title 3 was enacted in 1973, many children in pretrial detention status were detained in wunty jails. Today, no childrenare detained in county jails but are instead .detalnedinlocal or Regional detention tkilitiea. That makes some of the provisions of subsection (b) dating to countyjails obsolete.” Dawson, supm note 3, at 1776. While the original impetus for this language in section51.12(b)may no longer exist,we have no basis to conclude tbat the language has been impkdly repealed.
Fm we note that although the above-quoted wmmentsry suggests that the sole purpose of the language mgardhgjuvenile court wntml of “the wnditions and terms of detention and detention supervision” was to givejuvenile wurts authority over the conditions of the detention ofjuveniles in wunty jails, section 51.12(b) vestsjuvenile wurts with this authority witbout regard to whether a particular facility is operated by the sheriffor the wmmissioners wurt. This suggests legislative intent to vestjuvenile wurts with authority over the conditions of detention in all county facilities usedto detainjuveniles. The legishtture last revisited section 51.12 in 1995, amending subsections (a) and (c), but did not see fit to amend subsection (b).’

kobal 0.Dawsoq

Tide3. Deli?quenf

Chi,WrnandCJd&n inNeed ofSuprvis/on,

21TEC. TWX L. l&V. 1747,1776(19¶0).

‘SeeAdoft&y27,1%‘5,74thLcg.,RS.,ch. 262.5 12.1995Te~.OenLaws2517.2523The Honorable Richard J. Miller - Page 5 (nu-439)

We also note that the authority granted to the juvenile court in subsection (b) is not inwnsistent with the reqrirement in subsection (c) that %e judge of the juvenile wurt and the members of the juvenile board shall personslly inspect the detention facilities” and certify their suitabilityfor the detention ofchildren The duty of thejuvenile wurt and thejuvenile board annually to inspect and certify to a ikcility’s wmpliice with statutory requirements and minimum standards selected by the juvenile board does not preclude thejuvenile court t?om exercising authority over

. . co&rons andterms ofjuvenile detention 365 days of the year. Furthermore, the express inclusion ofthejudge ofjuvenile court in inspection in subsection (c). which dates from 1975: indicates that the h&datum intended to ensure tbat thejuvenile wurt judge participate in the iwpection ofjuvenile detention fhcilities even ifthe judge is not a member of thejuvenile board.6 In the many times the legislature has amended subsection (c) since 1975, it has lefi this express and separate reference to thejuvenile court unsltered.7~ Finany,we note that since 1973the role ofjuvwile bosrds inthe administration of the wuntyleveljuvwilejustiw system has been signitlcantly expanded across the state.* In additioq today, as a general rule,thejuvenile wurt judge must be a member of thejuvenile board.9 It may bethe case tbat the legislature has failedto amend subsection (b) to delete thejuvenile wurt’s separate statutory authority to control the county juvenile detention facility because it views this authority as fully wnsistent with the juvenile wurt*s role as a member of the juvenile board. While the separate statutory grants of authority with respect tojuvenile detention facilities in Family Code section 51.12,The Honorable Richard J. Miller - Page 6 (DM-439)

sabedions @) and (c) (and other statutes’? may be “unwieldy and unmanageable” in Fkll County, it is for the legislature, not this office, to assess whether the authority granted tojuvenile courts in subsection (b) is outdated or universally unworkable and to amend the statute ifnecessary In sum, section 51.12(b) v&s the juvenile court with authority over the wunty juvenile detention Mlity sepamte and apart 6omtbe authority oftbejuvenile board and wmmissioners wurt. A county is not authorized to enter into a contract that conflicts with state law. A wunty contract with ap&ate wrpomtion regardingthe operation of ajuvenile detention kility is void to the extent itwntlictswithsection 51.12(b).” SUMMARY

Family code se&on 51.124b)vests a wunty juvenile wurt with authority ova uxmtyjuvde detention facilities separate and apart 6om the authority of the juvenile board and wmnuss~ - ‘oners wurt. A county contract with a private corporation regarding the operation of ajuvenile detention facility is void to the extent it wntlicts with section 51.12@).

DAN MORALES Attorney General of Texas JORGE VEGA First As&ant Attorney General
SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Mary R Grouter Assktant Attorney General

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