DAN MORALES 

ATTORNEY GENERAL 

@ffice of toe Elttornep Q3enerat 

&ate of IBexas 

February 6,1992 

Honorable Richard Barajas 

District Attorney 

83rd Judicial District of Texas 

P. 0. Box 639 

Fort Stockton, Texas 79735 

Opinion No. DM-86 

Re: Responsibility of a sheriff with 

regard to a private detention facility 

operated under contract with a county 

(RQ-70) 

Dear Mr. Barajas: 

You ask about the statutory and constitutional responsibility of a county 

sheriff in regard to the operation of a detention center. You state that Pecos County 

has contracted with a private company to operate a detention facility. 

Your first two questions focus on language in the contract between the 

county and the private vendor providing that the private vendor is an independent 

contractors and, subject to the terms of the contract, that the private vendor shall 

have “the sole right to supervise, manage, operate, control, and direct the 

performance of the details incident to its duties” under the contract. Operation & 

Management Setvs. Agreement art. VI, 5 6.1, at 12 (1989). Essentially, you ask 

whether that language is inconsistent with the sheriffs constitutional and statutory 

responsibilities. 

Subchapter F of chapter 351 of the Local Government Code governs county 

contracts with private entities for jail facilities. Section 351.182 of the Local 

Government Code authorizes a county to contract with a private vendor for the 

“financing, design, construction, leasing, operation, purchase, maintenance, or 

management” of a jail facility. The sheriff must approve such a contract, but the 

sheriff may not unreasonably withhold approval. A contract made under section 

351.182 must: 

(1) require the private vendor to operate the facility in 

compliance with minimum standards adopted by the 

Commission on Jail Standards and receive and retain a 

certification of compliance from the commission; 

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(2) provide for regular, on-site monitoring by the sheriff; 

. . . . 

(10) contain comprehensive standards for conditions of 

confinement. 

Lmal Gov’t Code 9 351.103. 

A county sheriff has no constitutional authority or responsibility in regard to 

the housing of county inmates. See Tex. Const. art. V, 0 23, id. art. XI, 9 2; 35 D. 

BROOKS, COUNTY & SPECIAL DISTRICT LAW 8 20.48 (Texas Practice 1989). In 

regard to statutory duties, the specific provisions of subchapter F of chapter ,351 of 

the Local Government Code would prevail over any general provisions setting out 

the duties of the county sheriff in regard to the housing of county inmates. Thus, the 

contract provision giving the private vendor “the sole right to supervise, manage, 

operate, control, and direct the performance of the details incident to its duties” 

under the contract would be inconsistent with the sheriffs statutory responsibilities 

only if it were inconsistent with the statutorily required contract provision for 

regular, on-site monitoring by the sheriff. We do not find the provisions to be 

facially inconsistent. 

Section 351.102 allows the county to contract for “operation” and 

“management” of a detention facility, and section 351.103 requires that the contract 

provide for “regular, on-site monitoring by the sheriff.” In that context, we think it is 

clear that “monitoring” means that the sheriff ,has authority to evaluate the vendor’s 

performance of the contract. We do not believe it means that the sheriff has 

authority to make or overrule decisions about the details of day-to-day operation. 

The contract at issue here reflects that interpretation of the term “monitoring” by 

providing the sheriff shall provide his own check lists for monitoring the quality of 

the operator’s performance of the contract. Operation & Management Servs. 

Agreement art. XII, 3 12.6, at 24 (1989). Thus, the contractual provision that the 

private vendor shall have “the sole right to supervise, manage, operate, control, and 

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direct the performance of the details incident to its duties”’ under the contract is not 

on its face inconsistent with the sheriffs authority to monitor operation of the 

facility. The resolution of a specific conflict between the sheriff and the private 

vendor that arose in the actual execution of the contract would be a matter, in the 

first instance, for the parties to the contract. 

Your last question is whether the sheriff or the Texas Commission on Jail 

Standards (hereinafter the “commission”) may withhold certification of a private 

prison facility, or whether the commission may de-certify a facility, if 1) it fails to 

meet the operationa standards of the commission, or 2) jailers employed in the 

facility are not certified pursuant to section 415.0541 of the Government Code or by 

the Texas Commission on Law Enforcement Officer Standards and Education. 

Thus, the various provisions of the Government Code that apply to the United 

States Code’s certification of a county jail apply to a private prison facility. 

A sheriff has no responsibility for certification of a jail. Also, section 351.103 

of the Local Government Code requires “the private vendor to operate the facility in 

compliance with minimum standards adopted by the [commission] and receive und 

retain a ce@ication of compliance from the commission.” (Emphasis added.) 

Furthermore, chapter 511 of the Government Code gives the commission a duty of 

continuing supervision over the facility. 

In addition to its duty to adopt rules establishing various kinds of minimum 

standards for the operation of a “county jail” pursuant to section 511.009 of the 

Government Code, the commission also is charged with a duty to act in the event a 

facility does not comply with such minimum standards: 

If the commission finds that a county jail does not comply 

with state law or the rules, standards, or procedures of the 

commission, it shall report the noncompliance to the county 

commissioners and sheriff of the county responsible for the 

county jail and shall send a copy of the report to the governor. 

1The eontract speei6es that the operator is re.sponsiile for traiaing employee& stanlng the 

facility, food service, laundry services, traqortation, telephones, health service+ recreation and 

exereise$ vi.htiO& CnmmissaTi es, safety, sanitation, libraries, inmate correspondence, religious 

smites, and security. Id. art. V. 

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Honorable Richard Barajas - Page 4 @M-86 1 

G&t Code 9 511.011. Presumably, a county which receives such information may 

then proceed to enforce its contract with the private vendor, since the contract rmLsI 

require the private vendor to comply with minimwn commission standards. See 

Local Gov’t Code 8 351.103. But the commission itself may, in the event of 

noncompliance, also act. Under section 511.012 of the Government Code, the 

commission is authorized to “prohibit confinement of prisoners in the county jail.” 

In the alternative, the commission may, pursuant to section 511.014 of the 

Government Code, “bring an action in its own name to enforce or enjoin a violation 

of Subchapter A, Chapter 351, Local Government Code, or a commission rule, 

order, or procedure.” 

Individuals employed as jailers by a private detention facility were the subject 

of the inquiry in Attorney General Opinion JM-1152 (1990). That opinion 

concluded that jailers employed by a private vendor are not “county jailers” under 

the terms of section 85.005 of the Local Government Code. Rather, such contract 

personnel are included within the ambit of those “other county jail personnel” who 

are regulated by the provisions of section 415.0541 of the Government Code. That 

statute declares: 

(a) The commission [on Law Enforcement Officer 

Standards and Education] shall establish minimum physical, 

mental, educational, and moral standards for persons employed 

or used in the operation of a county jail. 

(b) The commission’s authority and -power ~applies. to all 

county jail personnel. The commission shall have additional 

staff to carry out this section. 

(c) Not later than one year after the date that the 

commission establishes standards for county jail personnel, each 

county must have all jail personnel certified by the commission, 

(d) A standard requiring a person to have a degree of 

fo& education or the equivalent does not apply to a person 

who was employed or whose services were used in the operation 

of a county jail on August 29,1977. 

Gn the basis of this language, Attorney General Opinion JM-1152 held that “the 

commission [On Law Enforcement Officer Standards and Education] has authority 

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to ‘establish minimum physical, mental, educational and moral standards’ for the 

certification of a ‘contract county jailer.“’ Attorney General Opinion JM-1152 at 3. 

Section 415.0541 gives each county a one-year deadline to comply with the 

minimum standards established by the Commission on Law Enforcement Officer 

Standards and Education for other jail personnel, including jailers employed by a 

private vendor. If the facility fails to comport with the deadline imposed by section 

415.0541, the Commission on Jail Standards may reasonably conclude that the 

facility “does not comply with state law,” as required by section 511.009, and proceed 

accordingly. 

The only duty of a sheriff with regard to a detention facility 

operated by a private vendor pursuant to a contract with his 

county is to exercise “regular, on-site monitoring” of the facility. 

The Commission on Jail Standards has a continuing duty under 

chapter 511 of the Government Code to monitor a private 

detention facility for compliance with its standards. If a facility 

fails to comply with the one-year deadline for certification of its 

jailers by the Commission on Law Enforcement Officer 

Standards and Education, the Commission on Jail Standards 

may conclude that the facility “does not comply with state law” 

under chapter 511, and apply certain remedies against the 

facility. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

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JUDGE ZOLLIE STEAKLEY (Ret) 

Special Assistant Attorney General 

RENEAHIcKs 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 440