DAN MORALES

ATTORNEY GENERAL 

### QMfice of the Elttornep QBeneral 

### @dateofIICexae May 13.1992

Honorable Joe S.Falco, Jr. Grimes County Attorney Cmmty Courthouse P. 0. Box439 Anderson, Texas 77830 Opinion No.DM-120 Re: Whether Grimes County may construct its new jail at a location in the county outside the county seat (RQ-336) Dear Mr. Falco: You ask whether the Commissioners Court of Grimes County, Texas, may construct its new countyjail in a location within Grimes County but outside of the county seat. You state that the present county jail facility is located in the unincorporated town of Anderson, which is the county seat. The jail facilities are inadequate and substandard, and a new facility must be constructed.. You wish to know if the new jail may be built in Navasota, an incorporated city in Grimes County, approximately ten miles from the county seat. County jails have ordinarily been located at the county seat, and under former law, certain countyjails were required to be located at the county seat. See Attorney General Opinion M-637 (1970) (if county has only one jail, it must be located at county seat); 35 D. BROOKS, COUNTY

ANDSPECIAL

DISTRICT

LAW 920.52 (Texas Practice 1989); see also Attorney General Opinion O-2201 (1940) (county jail may be located outside of county seat). An examination of current provisions on the location of a county jail demonstrates that the Grimes County Commissioners Court is authorized to locate the newjail anywhere in the county including outside ofthe county seat. Statutes on the location of county jails are codified in chapter 2921and at section 351.001ofthe Local Government Code. Wewillbegin by looking at section 351.001,whichprovides as follows:

lThe title of ehaptcr 292 of the Local Government Code is “Auxiliary County Buildings. However, the heading of a chapter does not hit or expand the meaning of a statute. Gov’t Code 0311.024. Thus, we cannot assume that all provisions of chapter 292 on the location of county jails pertain only to awiliary countyjails.

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(a) The commissioners wurt of a wunty shag provide safe and suitablejails for the county. (b) The jails must be located at the county seat U&W the wun@havon&onej~inwhichcasethejaiImaybelocated 

### a?lyw~inthecountyatthf?diraetionofthew~~ wuli. Local Gov’t Code 0351.001 (emphasis added). Subsection (a), formerly article 5115, was recoditled in 1987 as section 351.001 of the Local Government Code. Another 1987 enactment, House Bii 16 of the 78th Regular Legislative Session, adopted the provision now codified as subsection (b) ofsection 351.001. Acts 1987. 70th Leg.,ch. 92,s 4;seeako Acts 1989,71st Leg.,ch. 1,s 64(e) (wnforming section 351.001 to 1987enactment). The bill analysis to House Bill 16 stated that under current law, a county with only one county jail must locate it in the wunty seat. House Comm. on County Affairs, Big Analysis, H.B. 16, 78th Leg. (1987). The purpose ofthe big was stated as follows:

H.B. 16allowsthe Commissioner’s Court of a county having only one countyjail to locate [it] anywhere in the county that the Commissioner’s Court deems appropriate.

A 1989amendment to section 292.001of the Local Govermnent Code gives the commissioners court even broader discretion than does section 351.001 with respect to choosing the location ofthe countyjail. Section 292.001provides inpart:

(a) The commissioners court of a county may purchase, wnstruct, or provide by other means,. . .a building or rooms, other than the wurthouse, for the housing of county or district offices, county or district courts,justice of the peace courts,. . . or county jail facilities,
. . .if the wmmissioners court determines that the additional building or rooms are necessary. (b) The building or rooms must be located in the county seat. However, ifthe building ornwms arefor houdng county jail 

### ftac#ia, the building or rooms may be located anywhere in the wunty at the discretion ofthe commissioners court

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Local Gov’t Code 0292.001 (emphasis added). The emphasized language was added in 1989. Acts 1989,71st Leg., 1stC.S., ch. 31. 0 1. The predecessor of this statute was adopted in 1957,codified as sections 1 and 2 of article 237Ob.V.T.C.S, and recodEed in 1987 as section 292.001 of the Local Government Code. Acts 1957,SSth Leg., ch. 476, at 1386,Acts 1987,7Oth Leg., ch. 149.0 1. As adopted, it provided that all such buildings or rooms, including those for county jail facilities, must be located at the wunty seat. Acts 1957,55th Leg., **stp~.~** The bill analysis to the 1989amendment gave the followingbackground for thisprovision:

Section 292.001 of the Local Government Code prohibits the building ofa countyjail facility at any location other than the county seat. The law can be worked around by contracting with another county to house their prisoners, thus making the jail facility an interlocal jail under Article 4413(32c),V.T.C.S. Section 292.001waspassed near the turn of the century and many county officialsbelieve it has outlived its otiginal intent House Comm. on County Affairs, BillAnalysis H.B. 25,71st Leg., 1stC.S.(1989). The purpose of the amendment, according to the bill analysis, was to allow
“the countyjail to be built anywhere within a county’s geographic boundaries at the discretion of the commissioners court.” Section 292.001 of the Local Government Code authorizes the county commissioners to locate thejail anywhere in the county, whether or not it isthe onlyjail in the county. Sections 292.002 and 292.004 of the Local Government Code also address the location of the countyjail. These statutes were both adopted in 1979and their provisions on the countyjail have not been amended since then. Section 292.002of the Local Government Code expressly authorizes the wunty to build ajail outside ofthe wunty seat:

(a) The commissioners court of a county may provide an office building or ajail facility at a location in the county outside the

2ArticIe 23X%, V.T.C.S., as em&d in 1957, see Acts 1957, 55tb Leg., ch. 476, at 1386, authorized the commiasi~ers court to squire a courthouse building or ajail building “ (ii addition to the existbg eomtho~ and/or jail).’ Thus, it or&ally pertained to ~11 amilky facility, but the rele!mtlangurgchasbccnrepc.3lcd Acts1!%9,7lstLe&dl.1,f64(f).

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county seat in the same manner that is applicable to such a buildiqorfacilityatthecountyseat.... Local Gov’t Code 0292.002. This language was derived from a 1979 enactment formerly codified as V.T.C.S.article 237Ob-3,0# 13. Acts 1979,66th Leg.,ch. 18,at 28. Another 1979 enactment, now codified as section 292.004 of the Local Government Code appears to be inconsistent with section 292.002:

(a) The commissioners wurt of a county may provide, inside~hemkcipa&d&gnakdarfhecowUyseat,arlauxiky wurthouse, ujail,
. . .or any facilityrelated to the administration of civil or uiminal justice. For purposes of this section, the municipality designated as the county seat includes territory added to the municipality after it became the county seat but excludes anypart ofthe municipality outside the county.

. . . . (f) This section does not limit the authority of the commissioners court under any other law relating to the providing ofcounty facilities. Acts 1979,66th Leg., ch. 174,at 382 (formerly codified as sections 1-3 and 6(a) of article 1605a-5,V.T.C.S.) (emphasis added). The express permission givenby section 292.004for locating an auxiliaryjail in amtexed portions ofthe county seat indicates that it does not otherwise.authorize the jail be located outside the boundaries of the original county seat. However, sections 292.002 and 292.004 could have been harmonized even in 1979 by construing them as cumulative, rather than inconsistent, in the authority they gave the county to determine where to locate wunty jail fkilities. Seegenes& Attorney General Opinion JM-606 (1986) (citing V.T.CS. articles 1605a-5,237Oband several other statutes as authorizing the creation of branch offices for county officers outside the county seat and of auxiliary courthouses both at the county seat and outside ofit). The adoption ofthe 1989amendment to section 292.001establishes that the wmmissioners court has authority to build jails outside the county seat. As the

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latest expression of legislative intent, this provision controls over any inconsistent provision of the earlier-adopted section 292.004. Gov’t Code O3ll.U25(a). Moreover, the 1989 amendment to section 292.001 pertains only to jails, while section 292.004 pertains to several kinds of county facilities. In the event of an hconcilable conflict between a general provision and a special provision, the special provision will prevail BS an exception to the general provision. Gov’t Code 0311.026(b). Accordingly, the Commissioners Court of Grimes County has authority under section 292.001ofthe Local Government Code to buildjail facilities outside ofthe county seat. SUMMARY

Article 292.001ofthe Local Government Code authorizes a commissioners court to build a countyjail at any location within the wunty, including a location outside ofthe county seat.

DAN MORALES Attorney General ofTexas WILL PRYOR First Assistant Attorney General MARYKEJLER Deputy Assistant Attorney General RBNBAHIcKs Special Assistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by Susan L Garrison Assistant Attorney General

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