Mr. CharlesE.Walker, Jr. General Counsel. Board ofPardons and Paroles P. 0. Box 13401.Capitol Station Austin,Texas 78711 OpinionNo. JM-615

Re: Authority of the Board of Pardons and Paroles to contractwith counties for having prisoners incarcerated under the authority of warrants Issuedby theboard

DearMr.Walker:

The Texas Board of Pardons and Paroles [hereinaftertheBoard] is consideringcontractingwith a county toprovide for the incarceration ofprisoners arrestedandheld pursuant toboard-issuedwarrants. You ask primarilywhether theBoardholds theauthority to enter into such
a contract. Your question involves two related issues: whether the Board may pay the county to incarcerate the Board's prisoners and whether the county may refuse to jail the Board's prisoners if the Board refuses topay for their maintenance.

No person or agency holds the authority tomake a contractwhich is binding on the state, exceptwhen authorized to do so by theTexas Constitution or statutes. Tex. Const. art. III, 5944, 49; State v. Ragland Clinic-Eospital. 159 S.W.Zd 105, 106 (Tex. 1942). Thus, the power of the Board to enter into the contemplated contract depends upon the legislationwhich created and empowered theBoard. See State
v. Ragland Clinic-Hospital,159 S.W.2dat 106. --

Article IV, section 11. of the Texas Constitution initially created the Board of Pardons and Paroles. This provision grants the governor the power, conditioned upon the Board's recommendation, to grant reprieves and commutationsof punishmentand pardons. In 1983, article IV, section 11.was amendedby vote of thepeople tomake the Board of Pardons and Paroles a statutoryrather than a constitutional agency. To parallel the passage of this amendment, the legislature amended sections 12(d)and 21(a)of article 42.12 of theTexas Cbde of Criminal Procedure to give the board the sole authority to revoke paroles and issuewarrants for the return of a paroledprisoner. Acts 1983, 68th Leg., ch. 232, at 974. The Code of Criminal Procedure emphasizes that the Board of Pardons and Paroles is the agency of state with exclusive authority to grant paroles and gives the Board

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exclusive power to supervise persons released on parole. Code Grim. Proc. art. 42.12, Pl.

Article 42.12, section 21(a), of the Code of Criminal Procedure provides:

Awarrant for the return of a paroled prisoner,

a prisoner released to mandatory supervision, a prisoner released on emergency reprieve or on furlough, **or** a person released on a conditional pardon to the institution from which he was paroled, released, or pardoned may be issued by the Board in cases of parole or mandatory supervision, or by the Board on order by the Governor in other cases, when there is reason to believe that he has committed an offense against the laws of this State or of theUnited States,violated a condition ofhis parole,mandatory supervision,or conditional pardon, or when the circumstances indicate that he poses a danger to society that warrants his immediate return to incarceration. Such warrant shall authorize all officers named therein to take actual custody of the prisoner and, at the discretion of the Board, detain the prisoner **or** return him to the institution from which he was released. Pending hearing, as hereinafter provided, upon any charge of parole violation or violation of the conditions of mandatory **supervision,** the prisoner shall remain incarcerated. If the Board is otherwise authorized to issue a warrant under this subsection, the Boardmay instead issue toa prisoner
a summons requiring the prisoner to appear before the Board **or** its designee for a hearing under section 22 of this article. The sumons must state the time, place, date, and purpose of the hearing. (Emphasisadded).

Article 42.12, section 21(a), of the code authorizes the Board to issuewarrants and summons for the return of a paroledprisoner to the institution from which he was paroled. The provision does not expressly authorize the Board to require the county to incarcerate persons in county jail on the basis of board-issued warrants. Incarceration near the place where the alleged parole violation occurred. however. is now necessary because of the United States Supreme Court's decision inMorrissey v. Brewer, 408 U.S. 471 (1972). In Morrissey, the Court held that release on parole is a form of liberty that may not be denied without minimal due process. Due process requires that a reasonably prompt prerevocation hearing be

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afforded the allegedparoleviolator near the place where the alleged paroleviolation occurred. The Court did not prohibit or require that the prisoner be incarceratedpending the hearing; it merely required the hearing. The Code of Criminal Procedure, in section 21(a), of article 42.12, requires that the prisoner shall "remain incarcerated" pending a hearing. Consequently, you ask whether the Board may require the county sheriff to jail the Board's prisoners and whether the county couldrefuse to jail theBoard'sprisoners.
Attorney General Opinion JM-111 (1983) discussed the Morrissey
case and concludedthat local law enforcementauthoritiesmust hold an allegedparoleviolatoruntil the constitutionallyrequiredprerevocation hearing is completed or legally waived. The opinion did not directly addresswhether the Board of Pardons and,Parolesmay require the detention. Attorney General Opinion JM-111 indicated that it would be "inappropriate for local law enforcement authorities to release such a person prior to the conclusion or waiver of the local revocation hearing." (Emphasis added). Although this result is correct, see Attorney General Opinion M-918 (1971), it has been suggestedthat the opinion couldbe read to imply that theMorrissey
case requires that county sheriffs incarcerate alleged parole violators in county jail. This isnot the case. See Fowlerv. Cross, 635 F.2d 476,~480 (5thCir. 1981). It is theBoazs action,not the sheriff's action. which initially deurives a parolee of his liberty

could and thereby threatensa dueprocess interestprotected inMorrisseyV. Brewer, supra. See Fowlerv. Cross, supra. Even if the county legallyrefuse toincarcerate allegedparoleviolators, theBoardmust stillprovide the coustitutionallyrequiredprerevocationhearing.

Section 21(a) of article 42.12 does not expressly authorize the Board of Pardons and Paroles to require the county to jail theBoard's prisoners pending a prerevocation hearing. The provision does, however, authorize the issuance of warrants 'which authorize "all officersnamed therein to take actual custody of theprisoner.

. .T (Emphasisadded.) The purpose of theBoard'swarrant is to effect the return of the prisoner-to-theinstitutionfromwhich the prisonerwas released. The prerevocationhearing required in Morrissey is now an essentialprerequisiteto that return. Consequently,although article 42.12 does not expressly address the due process questions raised in Morrlssey, the Board has the implied authority to complywith the due process requirementsofMorrissey and to require the county sheriff to accept the Board's prisoners pending prerevocation hearings. See AttorneyGeneralOpinionE-312 (1974). -

The county may not refuse to accept such prisoners even if the Board refuses to pay for the prisoners' maintenance. Article 5116, V.T.C.S.,provides, inpart:

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(a) Each sheriff is the keener of the iail of his‘county. d~-~ ~~

He shall safely 'keep therein all prisoners committed thereto by lawful authority, subject to the order of theproper court aad shall be responsible for the safe keeping of such prisone&. - -

(Emphasisadded).

See Douthit v. Jones, 641 F.2d 345 (5th Cir. 1981); Attorney General **opinion** MU-398 (1981); see.also Code Grim. Proc. art. 2.18; Attorney General Opinion M-918 (1971). As the agency of the state with exclusive authority over the parole system, the Board of Pardons and Paroles necessarily constitutes "lawful authority" for purposes of article 5116, V.T.C.S. Accordingly, subsection (a) of article 5116 requires county sheriffs to incarcerate the administrative releasees of the Board of Pardons and Paroles. See also V.T.C.S. art. 6873 (each sheriff shall execute all process and precepts directed to him by legalauthority).
Similarly, article 2.18 of the Code of Criminal Procedure provides:

When a prisoner is committed to jail by warrant

from a magistrate or court, he shall be placed in jail by the sheriff. It is a violation of duty on the part of any sheriff to permit a defendant so committed to remain out of jail, except that he may, when a defendant is committed for want of bail, orwhen he arrests in a bailable case, give the person arrested a reasonable time to procure bail; but he shall so guard the accused as to prevent escape. (Emphasisadded).

SeeAttorney GeneralOpinion JM-151 (1984). - Attorney General Opinion JM-151 concluded that a county jail is required to accept state statute violators arrested by municipal police only after a magistrate or court has committed them to jail. Article 2.09 of the Code of CriminalProcedure lists thosepersonswho
are magistrates; it does not expressly include the Board of Pardons and Paroles. Because the authority of the Board to revoke parole is
an executive function. a related case which discusses whether the governor is a magistrate provides an analogue. The court in Ex parte Quinn. 549 S.W.2d 198 (Tex.Grim. App. 1977) dealtwith article 15.02 of the Code of Criminal Procedure, a provision that requires that warrants be signedby amagistrate. The courtnoted that article 2.09 doesnot list the governor as amagistrate,but indicatedthat article 51.13 is a special statutory provision which controls over the more general article 15.02. Id. at 201-02. Article 51.13 specifically authorizes the governor trslgn warrants of arrest for extradition

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purposes. For similar reasons, because article 42.12 of the code specifically authorizes the Board of Pardons and Paroles to Issue executivewarrants, such warrants have the status of warrants issued by magistrates for purposes of article 2.18. Thus, under article 2.18, countiesmust accept the Board'sprisoners.

The Board lacks the legal authority to pay the county to incarcerate the Board's prisoners. A state agency cannot bind the state to a contractunless that agency is authorized to do so by the constitution or by a pre-existing statute. State v. Ragland Clinic-Eospital, 159 S.W.2d 105, 106 (Tex. 1942) (citing the Texas Constitution, article III, sections 44 and 49); see also Attorney General Opinion MW-465 (1982). No statute directs the Board to pay for themaintenance of itsprisoners.

It should be noted that a county sheriff must perform his statutory duties even if his office is underfunded. See Attorney GeneralOpinionE-595 (1975).This opiniondoes not addressindividual conflicts which may arise in particular situations because of other constitutionalprinciples or statutoryprovisions. See, e.g.,V.T.C.S. art. 5115.1;Attorney General OpinionMW-398 (1981) (jail standards); Douthit v. Jones, tions), supra (false imprisonment and due process implicaSUMMARY

Pursuant to article 42.12, section 21(a), of the Texas Code of Criminal Procedure, the Texas Bpard of Pardons and Parolesmay direct the county sheriff to incarcerate the Board's prisoners. Under article 2.18 of the code and article 5116, V.T.C.S., the countymay not refuse to accept the Board's prisoners. The Board lacks the authority to enter into a contract to reimburse the county for the cost of jailing theBoard'sprisoners.

JIM MATTOX Attorney General of Texas

JACRHIGRTOWER FirstAssistantAttorneyGeneral

WARY RRLLER ExecutiveAssistantAttorneyGeneral

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RICR GILPIN Chairman,Opinion Committee
Prepared by JenniferRiggs AssistantAttorney General

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