December 12, 1990 

Mr. Jack E. Crump Opinion No. JM-1260 

Executive Director 

Texas Commission on Re: Whether minimum jail standards 

Jail Standards established by section 511 of the 

P. 0. Box 12985 Government Code are applicable to 

Austin, Texas 78711 jails operated for a municipality 

by a private entity (RQ-2069) 

Dear Mr. Crump: 

You ask whether minimum jail standards adopted by the 

Texas Commission on Jail Standards pursuant to section 

511.009 of the Government Code are applicable to jails 

operated for a municipality by a private entity. You ask: 

Do Minimum Jail Standards developed as a 

requirement of Section [511.009] apply to 

jails . . . operated by a private entity for 

a municipality? 

Do requirements to provide consultation and 

technical assistance, review of plans, and 

inspection apply to these facilities? 

Does this statute apply to those facilities 

already in existence [that] are operated by a 

private vendor for a municipality? 

Section 361.061 of the Local Government Code, formerly 

codified as article 5115e(a), V.T.C.S., provides that the 

governing body of a municipality may contract with 'Ia 

private vendor or a county" for the operation and maintenance of a jail. 

Section 361.062 of the Local Government Code, formerly 

codified as article 5115e(b), sets out the conditions that 

must be included in such a contract. Subsection (1) of 

section 361.062 states: 

A contract made under this subchapter must: 

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Mr. Jack E. Crump - Page 2 (JM-1260) 

(1) require the private vendor or county 

to operate the facility in compliance with 

minimum standards of construction, equipment, 

maintenance, and operation of jails adopted 

by the Commission on Jail Standards and 

receive and retain a certification of compliance from the commission. 

Your concern is prompted by the provisions of section 

511.009 of the Government Code authorizing the commission to 

adopt reasonable standards for the operation of county 

jails. Because section 511.009 refers only to the commission's power to adopt standards for countv iails, YOU 

question whether this rulemaking authority is extended to 

municipal jails operated by a private entity under section 

361.061. 

Section 511.009 is a nonsubstantive recodification of 

article 5115.1, V.T.C.S., originally enacted in 1975. H.B. 

272, Acts 1975, 64th Leg., ch. 480, at 1278. Section 

511.009 sets forth the general duties of the commission: 

(a) The commission shall: 

(1) adopt reasonable rules and procedures establishing minimum standards for 

the construction, equipment, maintenance, and 

operation of the county jails: 

(2) adopt reasonable rules and procedures establishing minimum standards for 

the custody, care, and treatment of prisoners ; 

(3) adopt reasonable rules establishing 

minimum standards for the number of jail 

supervisory personnel and for programs and 

services to meet the needs of prisoners: 

(4) adopt reasonable rules and procedures establishing minimum requirements for 

programs of rehabilitation, education, and 

recreation in county jails: 

(5) revise, amend, or change rules and 

procedures if necessary: 

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Mr. Jack E. CNmp - Page 3 (JM-1260) 

(6) provide to local government officials consultation on and technical assistance for county jails: 

(7) review and comment on plans for the 

construction and major modification or 

renovation of county jails; 

(8) require that the sheriff and 

commissioners of each county submit to the 

commission, on a form prescribed by the 

commission, an annual report on the conditions in each county jail within their 

jurisdiction, including all information 

necessary to determine compliance with state 

law, commission orders, and the rules adopted 

under this chapter: 

(9) review the reports submitted under 

Subdivision (8) and require commission 

employees to inspect county jails regularly 

to ensure compliance with state law, commission orders, and rules and procedures adopted 

under this chapter: and 

(10) at least annually determine 

whether each county jail is in compliance 

with the rules and procedures adopted under 

this chapter. 

(b) A commission rule or procedure is not 

unreasonable because compliance with the rule 

or procedure requires major modification or 

renovation of an existing jail or construction of a new jail. 

Gov't Code 0 511.009.1 

1. Subsection 9A was added by S.B. 289, Acts 1989, 

71s.t Leg., ch. 20, at 297, to article 5115.1, V.T.C.S., 

without reference to its repeal and recodification as 

section 511.009 of the Government Code. Subsection 9A 

provides: 

(a) On the request of a sheriff, the commission shall 

(Footnote Continued) 

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Mr. Jack E. Crump - Page 4 (JM-1260) 

The legislature has by the express provisions of 

section 361.062 evidenced its intent that the Commission on 

Jail Standards' responsibility be enlarged to include 

private vendors and counties operating a jail for a municipality. Section 361.062 is the later enactment of the 

legislature and we believe both statutes must be construed 

together in order to give effect to the intent of the 

legislature. See Gov't Code 5 311.025. In construing a 

statute the courts may consider the consequences of a 

particular construction. Section 361.061 allows municipalities to contract with a county as well as a private 

vendor for the operation of a jail. To conclude that a 

county operated municipal jail facility is subject to rules 

of the commission while a municipal facility operated by a 

private vendor is excepted from regulation would produce an 

illogical result as well as create confusion in the administration of the act.2 

(Footnote Continued) 

inspect a facility to determine whether there are 

areas in the facility in which fire sprinkler heads 

should not be placed as a fire prevention measure. In 

making a decision under this section, the commission 

shall consider: 

(1) the numbers and types of inmates having 

access to the area; 

(2) the likelihood that an inmate will attempt 

to vandalize the fire sprinkler system or commit 

suicide by hanging from a sprinkler head: and 

(3) the suitability of other types of fire 

prevention and smoke dispersal devices available for 

use in the area. 

(b) If the commission determines that fire sprinkler 

heads should not be placed in a particular area within 

a facility, neither a county fire marshal nor a 

municipal officer charged with enforcing ordinances 

related to fire safety may require the sheriff to 

install sprinkler heads in that area. 

2. Attorney General Opinion MW-328 (1981) concluded 

that city jails under contract with counties to hold county 

prisoners are considered "county jails" under section 

511.001 of the Government Code. 

. 

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Mr. Jack E. Crump - Page 5 (JM-1260') 

c 

We conclude that the requirements of section 511.009 

of the Government Code are applicable insofar as they come 

within the requirements of subsection (1) of section 361.062 

of the Local Government Code that requires the operation of 

the facility "in compliance with the minimum standards of 

construction, equipment, maintenance, and operation of jails 

adopted by the Commission on Jail Standards and [that the 

facility] receive and retain a certification of compliance 

from the commission." 

Your second question is whether requirements to provide 

consultation and technical assistance, review of plans, and 

inspection apply to these facilities. We believe the requirements stated by section 361.062 of the Local Government 

Code for a contract entered into between a municipality and 

a private vendor under that provision are sufficiently broad 

to include the requirements that you ask about. 

Your third question is whether section 361.062 of the 

Local Government Code makes the section 511.009 of the Government Code requirements applicable to those facilities 

already in existence operated by a private vendor for a 

municipality. Former article 5115e(b), V.T.C.S., recodified 

as section 361.062 of the Local Government Code, was adopted 

in 1987 with an effective date of August 3, 1987. H.B. 85, 

Acts 1987, 70th Leg., 2d C.S., ch. 35, at 123. A statute is 

presumed to be prospective in its operation unless expressl:.- 

made retrospective. Gov't Code § 311.022. The statute 

also negates retrospective operation in that it applies t3 

"contracts entered into under this article." We conclude 

that the provisions of section 361.062 of the Local Government Code are applicable to those facilities already i r. 

existence, so long as the contract between the municipalit) 

and a private vendor for the operation of the jail was 

entered into on or after the statute‘s effective date of 

August 3, 1987. 

SUMMARY 

Minimum jail standards adopted by the 

Texas Commission on Jail Standards are 

applicable to jails operated by a private 

vendor for a municipality insofar as they 

come within the requirements of section 

361.062 of the Local Government Code that 

require the operation of the facility I1 in 

compliance with the minimum standards of 

construction, equipment, maintenance, and 

operation of jails adopted by the Commission 

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c 

on Jail Standards and receive and retain a 

certification of compliance from the 

commission." Requirements that the commission provide consultation and technical assistance, review of plans, and inspection 

apply to jails operated by a private vendor 

for a municipality. The provisions of section 361.062 of the Local Government Code are 

applicable to jails operated by a private 

vendor, so long as the contract between the 

municipality and the private vendor for the 

operation of the jail was entered into on or 

after August 3, 1987, the effective date of 

the prior codification of section 361.062. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

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