Can a Texas county set up its own electronic monitoring program for house arrest?

TX AG Opinion GA-0683: Can a county run its own electronic monitoring program?

Plain-English summary

A criminal district attorney explained that the McLennan County Commissioners Court wanted to set up its own electronic monitoring program, separate from the program run by the local community supervision and corrections department, to be imposed as part of house arrest under Code of Criminal Procedure article 42.035(b). The question was whether the commissioners court had authority to do that.

The Attorney General said no. Article 42.035(a) lets a court in a county whose community supervision and corrections department has an electronic monitoring program require a defendant to serve a confinement sentence through electronic monitoring. Subarticle (b) lets a judge allow a defendant to serve a sentence under house arrest, including electronic monitoring and other conditions. But a commissioners court may exercise only the powers expressly conferred on it or necessarily implied, and article 42.035 does not give it express or implied authority to establish a monitoring program separate from the corrections department's.

The opinion addressed the obvious counterargument. Subarticle (c) lets a court require the defendant to pay the cost of electronic monitoring, but that fits the county's existing responsibility to provide the corrections department with equipment; it does not imply a power for the commissioners court to run its own program. Because the answer to the first question was no, the opinion did not reach the district attorney's second question about the legality of particular features of such a program. A footnote noted the opinion did not consider monitoring as part of a county correctional center, a jail industries program, or under article 17.44 (pretrial release).

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Code of Criminal Procedure and Government Code provisions on electronic monitoring and community supervision have been amended over time. Confirm current law before relying on this analysis.

Who this opinion affected (as of 2008)

County commissioners courts: The opinion concluded they lacked authority under article 42.035 to establish an electronic monitoring program separate from the community supervision and corrections department's.

Community supervision and corrections departments: The opinion treated them as the entity whose monitoring program article 42.035 contemplates, with the county responsible for providing equipment.

Common questions

Can a county create its own electronic monitoring program?
The opinion said no, not under article 42.035; the commissioners court has no express or implied authority to run a program separate from the corrections department's.

Doesn't the cost-recovery provision imply that power?
No. The opinion read subarticle (c)'s cost provision as tied to the county's duty to equip the corrections department, not as authority to run a separate program.

What about monitoring through a jail or pretrial release?
The opinion expressly did not consider monitoring as part of a county correctional center, a jail industries program, or pretrial release under article 17.44.

Background and statutory framework

Article 42.035(a) lets a court in a county whose community supervision and corrections department has an electronic monitoring program require a defendant to serve confinement by electronic monitoring, and subarticle (b) lets a judge permit a defendant to serve a sentence under house arrest including electronic monitoring (Tex. Code Crim. Proc. Ann. art. 42.035(a)-(b) (Vernon 2006)). A commissioners court may exercise only expressly conferred and necessarily implied powers (City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)). Subarticle (c)'s cost provision tracks the county's duty to equip the local corrections department (id. art. 42.035(c); Tex. Gov't Code Ann. § 76.008(a) (Vernon 2005)). The opinion did not consider monitoring as part of a county correctional center or jail industries program, or under pretrial release (Tex. Loc. Gov't Code Ann. §§ 351.181, 351.201(a) (Vernon 2005); Tex. Code Crim. Proc. Ann. art. 17.44 (Vernon 2005)).

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. art. 42.035(a)-(c) (Vernon 2006)
• Tex. Code Crim. Proc. Ann. art. 17.44 (Vernon 2005)
• Tex. Gov't Code Ann. § 76.008(a) (Vernon 2005)
• Tex. Loc. Gov't Code Ann. §§ 351.181, 351.201(a) (Vernon 2005)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0683
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0683.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

November 13, 2008

The Honorable John W. Segrest
McLennan County Criminal District Attorney
219 North Sixth Street, Suite 200
Waco, Texas 76701

Opinion No. GA-0683

Re: Whether a county commissioners court may establish an electronic monitoring program under Code of Criminal Procedure article 42.035(b) (RQ-0718-GA)

Dear Mr. Segrest:

You write that the McLennan County Commissioners Court (the "commissioners court") seeks to establish an electronic monitoring program, separate from a program established by the local community supervision and corrections department, that may be imposed as a component of house arrest under Code of Criminal Procedure article 42.035(b).[1] See TEX. CODE CRIM. PROC. ANN. art. 42.035(b) (Vernon 2006). You ask whether the commissioners court has authority to establish such an electronic monitoring program.[2]

Article 42.035(a) authorizes "[a] court in a county served by a community supervision and corrections department that has an electronic monitoring program . . . . [to] require a defendant to serve all or part of a sentence of confinement . . . by submitting to electronic monitoring . . . ." Id. art. 42.035(a). In different language, subarticle (b) also authorizes a judge to permit a convicted defendant to serve the defendant's sentence "under house arrest, including electronic monitoring and any other conditions the court chooses to impose . . . ." Id. art. 42.035(b).

A commissioners court has no express or implied authority under article 42.035 to establish an electronic monitoring program that is separate from that established by a community supervision and corrections department. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003) (stating that a county commissioners court may exercise only those expressly conferred and implied powers). Subarticle (b) does not specify the entity that may establish an electronic monitoring program. See TEX. CODE CRIM. PROC. ANN. art. 42.035(b) (Vernon 2006). And subarticle (c), which authorizes a court to require the defendant to pay the "the cost of electronic monitoring," may be understood with reference to the county's responsibility to provide the local community supervision and corrections department with "equipment"; thus, it does not implicitly authorize a commissioners court to establish an electronic monitoring program. See id. art. 42.035(c); see also TEX. GOV'T CODE ANN. § 76.008(a) (Vernon 2005) (setting out county's responsibility in relation to the local community supervision and corrections department).

In light of this answer, we do not address your second question regarding the legality of certain aspects of an electronic monitoring program established by a commissioners court.[3] Request Letter, supra note 1, at 2.

[Footnote 3: We do not consider whether a county commissioners court could establish an electronic monitoring program as part of a county correctional center or a county jail industries program. Nothing in your request or in any materials submitted with your request indicates that the proposed electronic monitoring program would be a component of either a correctional center or jail industries program. See TEX. LOC. GOV'T CODE ANN. §§ 351.181, .201(a) (Vernon 2005). See generally Request Letter, supra note 1, and materials attached thereto. Nor do we consider a county commissioners court's authority to establish an electronic monitoring program under article 17.44 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 17.44 (Vernon 2005).]

SUMMARY

Texas Code of Criminal Procedure article 42.035 does not authorize a county commissioners court to establish an electronic monitoring program separate from that established by a community supervision and corrections department.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee