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 aprivate entity (RQ-2069)
DearMr. 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 amunicipality by aprivate entity. You ask:

DoMinimum Jail Standards developed as a requirement of Section [511.009] apply to jails
. . .operated by aprivate entity for amunicipality?
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 inexistence [that]are operated by a private vendor foramunicipality? Section 361.061 ofthe Local Government Code, formerly codified asarticle 5115e(a), V.T.C.S., provides that the governing body of a municipality may contract with 'Ia private vendor or acounty" for the operation and maintenance of a jail. Section 361.062 ofthe 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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(1) require theprivate vendor or county to operate the facility incompliance with minimum standards of construction, equipment, maintenance, and operation of jails adopted by the Commission on Jail Standards and receive and retain acertification of compliance from the commission.
Your concern isprompted by theprovisions of section 511.009 of theGovernment 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 isextended to municipal jails operated by aprivate entity under section 361.061. Section 511.009 is anonsubstantive recodification of article 5115.1,V.T.C.S., originally enacted in 1975.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 tomeet theneeds ofprisoners: (4) adopt reasonable rules and procedures establishing minimum requirements for programs of rehabilitation, education, and recreation incounty jails: (5) revise, amend, or change rules and procedures ifnecessary:

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(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 eachcounty 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 todetermine 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, andrules andprocedures adopted under this chapter: and (10) at least annually determine whether each county jail is in compliance with the rules andprocedures adopted under this chapter. (b) A commission rule or procedure is not unreasonable because compliance with the rule orprocedure requires major modification or renovation ofan existing jail or construction of anew jail.
Gov't Code 0511.009.1

1. Subsection 9A wasadded by S.B. 289,Acts 1989, 71s.tLeg., ch. 20, at 297, toarticle 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 ofasheriff, the commission shall (Footnote Continued)

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The legislature has by the express provisions of section 361.062 evidenced its intent that theCommission on Jail Standards' responsibility be enlarged to include private vendors andcounties operating a jail fora municipality. Section 361.062 is the later enactment of the legislature andwebelieve both statutes mustbe construed together in order togive 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 aswell asa private vendor for the operation ofa jail. To conclude that a county operatedmunicipal jail facility issubject to rules of the commission while a municipal facility operated by a private vendor isexcepted from regulation wouldproduce an illogical result aswell as create confusion inthe administration of theact.2
(Footnote Continued) inspect a facility todetermine whether there are areas inthe facility inwhich fire sprinkler heads should not be placed as a fireprevention measure. In making adecision under this section, the commission shall consider: (1) thenumbers and types of inmates having access to the area; (2) the likelihood that an inmatewill attempt tovandalize the fire sprinkler system or commit suicide byhanging from a sprinkler head: and (3) the suitability of other types of fire prevention and smoke dispersal devices available for use inthearea. (b) Ifthecommission determines that fire sprinkler heads shouldnotbeplaced inaparticular areawithin a facility, neither a county fire marshal nor a municipal officer charged with enforcing ordinances related to firesafety may require the sheriff to install sprinkler heads inthat area. 2. Attorney General Opinion MW-328 (1981) concluded that city jailsunder contract with counties tohold county prisoners are considered "county jails" under section 511.001 of theGovernment Code. .

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We conclude that the requirements of section 511.009 of theGovernment Code are applicable insofar as they come within the requirements of subsection (1)

### ofsection 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 onJail Standards and [that the facility] receive and retain a certification of compliance fromthe commission."
Your second question iswhether requirements toprovide consultation and technical assistance, review ofplans, and inspection apply to these facilities. We believe the requirements stated by section 361.062 of the Local Government Code fora contract entered intobetween amunicipality and aprivate vendor under thatprovision are sufficiently broad to include the requirements thatyou ask about.
Your third question is whether section 361.062 of the Local Government Codemakes 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 1987with an effective date ofAugust 3, 1987. H.B. 85, Acts 1987, 70th Leg., 2dC.S., ch. 35,at 123. A statute is presumed tobeprospective in itsoperation unless expressl:.- made retrospective. Gov't Code §311.022. The statute also negates retrospective operation inthat itapplies t3 "contracts entered into under this article." We conclude that theprovisions of section 361.062 of the Local Government Code are applicable to those facilities already ir. existence, so long as the contract between the municipalit) anda private vendor for the operation of the jail was entered into on orafter 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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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 aprivate vendor foramunicipality. The provisions of section 361.062 of theLocal Government Code are applicable to jails operated by a private vendor, so longas the contract between the municipality andthe private vendor for the operation of the jailwas entered into on or after August 3, 1987, the effective date of theprior codification of section 361.062.

JIM MATTOX Attorney General ofTexas
MARY KELLER First Assistant Attorney General LOUMCCREARY Executive Assistant Attorney General JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RENEA HICKS Special Assistant Attorney General
RICK GILPIN Chairman, opinion Committee Prepared byTom G. Davis Assistant Attorney General

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