DAN MORALES

ATTORNEY GENERAL 

## @fficeoftoe ElttornepQ3enerat &ate of IBexas February 6,1992 Honorable Richard Barajas District Attorney 83rdJudicial District ofTexas P. 0. Box639 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 sheriffin regard to the operation ofa detention center. You state that Pecos County has contracted with aprivate 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 ofthe details incident to its duties” under the contract. Operation & Management Setvs. Agreement art. VI, 56.1, at 12 (1989). Essentially, you ask whether that language is inconsistent with the sheriffs constitutional and statutory responsibilities. Subchapter F ofchapter 351ofthe 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 ajail facility. The sheriff must approve such a contract, but the sheriff may not unreasonably withhold approval. A contract made under section 351.182must:(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 ofcompliance from the commission;

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

. . . . (10) contain comprehensive standards for conditions of confinement.
Lmal Gov’tCode 9351.103.
A county sheriff has no constitutional authority or responsibility in regard to the housing of county inmates. See Tex. Const. art. V, 023, id. art. XI, 92; 35 D. BROOKS,

COUNTY& SPECIAL

DISTRICT

LAW820.48 (Texas Practice 1989). In regard to statutory duties, the specific provisions of subchapter F ofchapter ,351of the Local Government Code would prevail over any general provisions setting out the duties ofthe county sheriffinregard to the housing ofcounty 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” ofa detention facility, and section 351.103requires 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 ,hasauthority 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 ofthe details incident to its duties”’under the contract isnot 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 ofthe 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 415.0541ofthe 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’scertification ofa countyjail apply to aprivate prison facility.
A sheriffhas no responsibility for certification ofajail. Also, section 351.103 ofthe Local Government Code requires “theprivate vendor to operate the facility in compliance with minimum standards adopted by the [commission] and receiveund retain a ce@ication of compliancefrom the commission.” (Emphasis added.) Furthermore, chapter 511 ofthe 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 “countyjail” 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 countyjail and shall send a copy ofthe 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, healthservice+

recreation

and exereise$ vi.htiO& CnmmissaTi es, safety,sanitation, libraries, inmate correspondence, religious smites, and security. Id. art.V.

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G&t Code 9511.011. 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 8351.103. 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 ofprisoners in the countyjail.” In the alternative, the commission may, pursuant to section 511.014 of the Government Code, “bringan action in its ownname to enforce or enjoin a violation of Subchapter A, Chapter 351, Local Government Code, or a commission rule, order, orprocedure.” Individuals employed asjailers by aprivate detention facilitywere the subject of the inquiry in Attorney General Opinion JM-1152 (1990). That opinion concluded that jailers employed by a private vendor are not “countyjailers” under the terms of section 85.005ofthe 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 415.0541ofthe 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 ofa countyjail. (b) The commission’s authority and -power ~applies.to all county jail personnel. The commission shall have additional staffto carry out this section. (c) Not later than one year after the date that the commission establishes standards for countyjail personnel, each county must have alljail personnel certified bythe 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 ofa countyjail 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 countyjailer.“’ 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. Ifthe facility fails to comport with the deadline imposed by section 415.0541, the Commission on Jail Standards may reasonably conclude that the facility “doesnot comply with state law,”as required by section 511.009,and proceed accordingly.

The only duty of a sheriffwith 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 ofits 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 ofTexas
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 byRick Gilpin Assistant Attorney General

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