What is a Texas sheriff responsible for when a private company runs the county jail?

Texas AG Opinion DM-0086: A Sheriff's Role at a Privately Run County Jail

Plain-English summary

A district attorney whose district includes Pecos County asked what a county sheriff is responsible for when the county has hired a private company to run a detention facility. The contract gave the private vendor the "sole right to supervise, manage, operate, control, and direct" the details of running the jail, and the question was whether that clause clashed with the sheriff's constitutional and statutory duties.

The Attorney General concluded it did not, at least not on its face. A sheriff has no constitutional authority over the housing of county inmates. By statute, subchapter F of chapter 351 of the Local Government Code lets a county contract with a private vendor to operate a jail, and the contract must require the vendor to meet the Commission on Jail Standards' minimum standards and must "provide for regular, on-site monitoring by the sheriff." The opinion read "monitoring" to mean that the sheriff evaluates the vendor's performance, not that the sheriff makes or overrides day-to-day operating decisions. Read that way, the vendor's "sole right" to manage operations and the sheriff's duty to monitor are not in conflict. Any specific dispute between the sheriff and the vendor would be, in the first instance, a matter for the parties to the contract.

On certification and enforcement, the opinion was clear that the sheriff has no role. The Texas Commission on Jail Standards has a continuing duty under chapter 511 of the Government Code to supervise the facility, report noncompliance, and, if needed, prohibit confinement of prisoners or sue to enforce the standards. Jailers employed by a private vendor are not "county jailers," but they are "other county jail personnel" subject to the standards set by the Commission on Law Enforcement Officer Standards and Education under section 415.0541 (the opinion relied on Attorney General Opinion JM-1152 for that). If the facility misses the one-year deadline to get its jailers certified, the Commission on Jail Standards may conclude the facility "does not comply with state law" and apply its remedies.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The private-jail, jail-standards, and law-enforcement-licensing statutes cited here have been amended and renumbered since 1992 (for example, the Commission on Law Enforcement Officer Standards and Education has since been reorganized). Verify current law before relying on any section number or deadline mentioned here.

Common questions

If a private company runs the county jail, what does the sheriff actually do?
Under this opinion, the sheriff's one statutory duty is "regular, on-site monitoring" of the facility, which means evaluating how well the vendor is performing the contract. The sheriff does not run daily operations and does not certify the jail.

Can the contract give the vendor 'sole' control over operations?
The opinion said a clause giving the vendor the sole right to manage and operate the facility is not facially inconsistent with the sheriff's monitoring duty, because monitoring is about evaluating performance, not directing operations. A specific conflict would be worked out under the contract.

Who makes sure a private jail meets state standards?
The Texas Commission on Jail Standards. Under chapter 511 of the Government Code it has a continuing duty to supervise the facility, report noncompliance to the county and the governor, and, if necessary, prohibit confinement of prisoners or bring an enforcement action.

Do the private jail's guards have to be certified?
Yes. Jailers employed by a private vendor are "other county jail personnel" subject to the standards of the Commission on Law Enforcement Officer Standards and Education under section 415.0541. If they are not certified within the one-year deadline, the Commission on Jail Standards may treat the facility as out of compliance with state law.

Background and statutory framework

The sheriff's lack of constitutional authority over inmate housing rested on Tex. Const. art. V, § 23 and art. XI, § 2 (and a county-law treatise). The private-jail contracting rules are in subchapter F of chapter 351 of the Local Government Code: § 351.102 authorizes a county to contract with a private vendor for the financing, design, construction, leasing, operation, purchase, maintenance, or management of a jail facility (with the sheriff's approval, not to be unreasonably withheld), and § 351.103 lists required contract terms, including compliance with Commission on Jail Standards minimums and "regular, on-site monitoring by the sheriff." Oversight and enforcement run through chapter 511 of the Government Code: § 511.009 (minimum standards), § 511.011 (report of noncompliance), § 511.012 (prohibit confinement), and § 511.014 (enforcement action). Jailer standards for private-vendor personnel come from Gov't Code § 415.0541, with § 85.005 of the Local Government Code defining "county jailers." The opinion relied on Attorney General Opinion JM-1152 (1990) for the treatment of contract jailers.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, § 23 and art. XI, § 2 (sheriff; county government)
• Local Gov't Code § 351.102 (authority to contract with a private vendor) and § 351.103 (required contract provisions)
• Local Gov't Code § 85.005 (county jailers)
• Gov't Code § 511.009, § 511.011, § 511.012, § 511.014 (Commission on Jail Standards duties and remedies)
• Gov't Code § 415.0541 (standards for county jail personnel)

Prior Attorney General opinion discussed: JM-1152 (1990).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0086
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0086.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

February 6, 1992

Honorable Richard Barajas
District Attorney
83rd Judicial District of Texas
P. O. 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 contractor 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 Servs. Agreement art. VI, § 6.1, at 12 (1989). Essentially, you ask whether that language is inconsistent with the sheriff's constitutional and statutory responsibilities.

Subchapter F of chapter 351 of the Local Government Code governs county contracts with private entities for jail facilities. Section 351.102 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 351.102 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;

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

. . . .

(10) contain comprehensive standards for conditions of confinement.

Local Gov't Code § 351.103.

A county sheriff has no constitutional authority or responsibility in regard to the housing of county inmates. See Tex. Const. art. V, § 23; id. art. XI, § 2; 35 D. BROOKS, COUNTY & SPECIAL DISTRICT LAW § 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 sheriff's 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, § 12.6, at 24 (1989). Thus, the contractual provision 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"[1] under the contract is not on its face inconsistent with the sheriff's 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 operational 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 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 and retain a certification 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.

Gov't Code § 511.011. Presumably, a county which receives such information may then proceed to enforce its contract with the private vendor, since the contract must require the private vendor to comply with minimum commission standards. See Local Gov't Code § 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 formal 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.

On the basis of this language, Attorney General Opinion JM-1152 held that "the commission [on Law Enforcement Officer Standards and Education] has authority 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.

SUMMARY

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

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

[1] The contract specifies that the operator is responsible for training employees, staffing the facility, food service, laundry services, transportation, telephones, health services, recreation and exercise, visitation, commissary, safety, sanitation, libraries, inmate correspondence, religious services, and security. Id. art. V.