Mr. Charles E. Walker, Jr. 

General Counsel. 

Board of Pardons and Paroles 

P. 0. Box 13401. Capitol Station 

Austin, Texas 78711 

Opinion No. JM-615 

Re: Authority of the Board of 

Pardons and Paroles to contract with counties for having 

prisoners incarcerated under 

the authority of warrants 

Issued by the board 

Dear Mr. Walker: 

The Texas Board of Pardons and Paroles [hereinafter the Board] is 

considering contracting with a county to provide for the incarceration 

of prisoners arrested and held pursuant to board-issued warrants. You 

ask primarily whether the Board holds the authority 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 to pay for their maintenance. 

No person or agency holds the authority to make a contract which 

is binding on the state, except when authorized to do so by the Texas 

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 legislation which created and empowered the Board. See State 

v. Ragland Clinic-Hospital, 159 S.W.2d at 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 commutations of punishment and pardons. In 1983, 

article IV, section 11. was amended by vote of the people to make the 

Board of Pardons and Paroles a statutory rather 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 the Texas Cbde of 

Criminal Procedure to give the board the sole authority to revoke 

paroles and issue warrants for the return of a paroled prisoner. 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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Mr; Charles E. Walker, Jr. - Page 2 (JM-615) 

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: 

A warrant 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 the United States, violated a 

condition of his 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 Board may instead issue to a 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. (Emphasis added). 

Article 42.12, section 21(a), of the code authorizes the Board to 

issue warrants and summons for the return of a paroled prisoner 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 in Morrissey 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 

p. 2767 
Mr. Charles E. Walker, Jr. - Page 3 (JM-615) 

afforded the alleged parole violator near the place where the alleged 

parole violation occurred. The Court did not prohibit or require that 

the prisoner be incarcerated pending 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 could refuse to jail the Board's prisoners. 

Attorney General Opinion JM-111 (1983) discussed the Morrissey 

case and concluded that local law enforcement authorities must hold an 

alleged parole violator until the constitutionally required prerevocation hearing is completed or legally waived. The opinion did not 

directly address whether the Board of Pardons and,Paroles may 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 

suggested that the opinion could be read to imply that the Morrissey 

case requires that county sheriffs incarcerate alleged parole 

violators in county jail. This is not the case. See Fowler v. Cross, 

635 F.2d 476,~ 480 (5th Cir. 1981). It is the Boazs action, not the 

sheriff's action. which initially deurives a parolee of his liberty 

could 

and thereby threatens a due process interest protected in Morrissey V. 

Brewer, supra. See Fowler v. Cross, supra. Even if the county 

legally refuse toincarcerate alleged parole violators, the Board must 

still provide the coustitutionally required prerevocation hearing. 

Section 21(a) of article 42.12 does not expressly authorize the 

Board of Pardons and Paroles to require the county to jail the Board's 

prisoners pending a prerevocation hearing. The provision does, 

however, authorize the issuance of warrants 'which authorize "all 

officers named therein to take actual custody of the prisoner. . .T 

(Emphasis added.) The purpose of the Board's warrant is to effect the 

return of the prisoner -to-the institution from which the prisoner was 

released. The prerevocation hearing required in Morrissey is now an 

essential prerequisite to 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 comply with the due 

process requirements of Morrissey and to require the county sheriff to 

accept the Board's prisoners pending prerevocation hearings. See 

Attorney General Opinion E-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, in part: 

p. 2768 
Mr. Charles E.*Walker, Jr. - Page 4 (JM-615) 

(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 the proper court aad shall 

be responsible for the safe keeping of such 

prisone&. (Emphasis added). - - 

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 legal authority). 

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, or when 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. (Emphasis added). 

See Attorney General Opinion 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 Criminal Procedure lists those persons who 

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) dealt with article 15.02 

of the Code of Criminal Procedure, a provision that requires that 

warrants be signed by a magistrate. The court noted that article 2.09 

does not list the governor as a magistrate, but indicated that 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 

p. 2769 
Mr. Charles E. Walker, Jr. - Page 5 (JM-615) 

purposes. For similar reasons, because article 42.12 of the code 

specifically authorizes the Board of Pardons and Paroles to Issue 

executive warrants, such warrants have the status of warrants issued 

by magistrates for purposes of article 2.18. Thus, under article 

2.18, counties must accept the Board's prisoners. 

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 contract unless 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 the maintenance of its prisoners. 

It should be noted that a county sheriff must perform his 

statutory duties even if his office is underfunded. See Attorney 

General Opinion E-595 (1975). This opinion does not addressindividual 

conflicts which may arise in particular situations because of other 

constitutional principles or statutory provisions. See, e.g., V.T.C.S. 

art. 5115.1; Attorney General Opinion MW-398 (1981) (jail standards); 

Douthit v. Jones, 

t ions) , 

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 Paroles may 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 county may 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 the Board's prisoners. 

JIM MATTOX 

Attorney General of Texas 

JACRHIGRTOWER 

First Assistant Attorney General 

WARY RRLLER 

Executive Assistant Attorney General 

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Mr. Charles E. Walker, Jr. - Page 6 (m-615) 

RICR GILPIN 

Chairman, Opinion Committee 

Prepared by Jennifer Riggs 

Assistant Attorney General 

p. 2771 

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