Who decides whether inmates can smoke in a Texas county jail, the sheriff or the county commissioners?

Texas AG Opinion JM-1098: Who Controls Smoking Rules in a County Jail?

Plain-English summary

Bastrop County was building a new jail and the commissioners court wanted to make it completely smoke-free, banning smoking anywhere in the building by anyone, including inmates. The county's criminal district attorney asked the Attorney General who actually has the authority to set that rule: the commissioners court or the sheriff.

The Attorney General's answer split the authority between the two offices. The sheriff is the statutory "keeper of the county jail" and is charged with supervising and controlling it. That role carries the discretion to make reasonable rules about how the jail runs day to day, and the opinion concluded that includes deciding whether inmates may smoke. So the starting point is that the smoking question belongs to the sheriff.

The commissioners court is not powerless, though. Under section 351.001 of the Local Government Code the court must provide a "safe and suitable jail," which the statute spells out in terms of proper sanitation, ventilation, cleanliness, health, and adequate security and safety. If banning inmate smoking is necessary to meet that duty in a particular jail, the commissioners court may prohibit it. Whether it is necessary depends on the actual conditions in a given jail, which is a fact question the opinion said it could not resolve through the opinion process.

The opinion also made clear that no one has a constitutional right to smoke behind bars. It noted that the Fifth Circuit had rejected an inmate's Eighth Amendment claim based on exposure to tobacco smoke, and that granting inmates a right to smoke would be odd when many free citizens are barred from smoking in public places. The Attorney General answered the first and third questions (who regulates, and whether smoking may be prohibited) and declined the others, because question two turned on facts and questions four and five asked for general legal advice that the opinion process does not provide.

Currency note

This opinion was issued in 1989. 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 jail statutes cited here (chapter 351 of the Local Government Code, formerly articles 5115, 5115.1, and 5116, V.T.C.S.) and the Commission on Jail Standards rules have been amended since 1989, and Texas has since adopted broad statewide restrictions on smoking in government buildings. Anyone dealing with a present-day jail smoking policy should work from the current Local Government Code, current Commission on Jail Standards rules, and any applicable smoking laws rather than the 1989 provisions described here.

Who this opinion affected (as of 1989)

County sheriffs: The opinion confirmed that the sheriff, as keeper of the jail, held the discretion to set reasonable operating rules, including whether inmates could smoke.

County commissioners courts: The opinion recognized the court's role in funding the jail and setting broad operational guidelines, and its authority to prohibit inmate smoking where necessary to satisfy the "safe and suitable jail" duty under section 351.001, a determination tied to the facts of the particular jail.

Inmates: The opinion indicated that inmates had no constitutional right to smoke in jail, and pointed to a Fifth Circuit decision rejecting an Eighth Amendment claim premised on exposure to environmental tobacco smoke.

Common questions

Can a Texas county ban smoking in its jail?
Yes. The sheriff may prohibit inmate smoking as part of running the jail, and the commissioners court may prohibit it where necessary to provide a "safe and suitable jail" under section 351.001 of the Local Government Code.

Does the sheriff or the commissioners court decide the smoking rule?
The sheriff, in the first instance. As the statutory "keeper of the county jail," the sheriff has discretion over reasonable rules for supervising prisoners and operating the jail, including smoking. The commissioners court's authority is generally limited to funding and broad operational guidelines, plus the safe-and-suitable-jail duty.

Do inmates have a right to smoke?
No. The opinion found no constitutional right to smoke in jail and cited a Fifth Circuit case rejecting an inmate's Eighth Amendment claim about exposure to tobacco smoke.

Why didn't the opinion say whether jail smoke is a health hazard to nonsmoking inmates?
Because that is a question of fact tied to conditions in a specific jail, and the Attorney General's opinion process does not resolve fact issues.

Background and statutory framework

The request arose from a plan to make a new Bastrop County jail entirely smoke-free. On the constitutional backdrop, the opinion cited Wilson v. Lynaugh, 878 F.2d 846 (5th Cir. 1989), where the Fifth Circuit rejected a prison inmate's claim that exposure to environmental tobacco smoke violated the Eighth Amendment, and reasoned that this did not create any right to smoke. It noted Penal Code section 48.01 makes it an offense to smoke tobacco in various public places (schools, elevators, enclosed theaters, libraries, museums, hospitals, transit and intrastate buses), and that Attorney General Opinion JM-737 (1987) had concluded a home-rule city ordinance prohibiting smoking in public places did not violate state law. Prison officials are not required to meet health and safety standards for persons who are not incarcerated. Sampson v. King, 693 F.2d 566, 569 (5th Cir. 1982).

On which county office regulates jail smoking, the opinion traced the two relevant duties. Former article 5115, V.T.C.S., required the commissioners court to provide a "safe and suitable jail." That article was amended by House Bill 1314, Acts 1987, 70th Leg., ch. 883, § 1, effective September 1, 1987, and carried forward as section 351.001 of the Local Government Code, which charges the commissioners court with providing a jail with proper sanitation, ventilation, cleanliness, health, and adequate security and safety conditions. Whether the court has authority to determine if inmates smoke turns on whether such a regulation is necessary to comply with that duty, a case-by-case factual question outside the opinion process.

Section 351.041 of the Local Government Code (formerly article 5116, V.T.C.S.) designates the sheriff as the "keeper of the county jail" and provides that the sheriff shall "exercise supervision and control over the jail." Attorney General Opinion H-1190 (1978) stated that under former article 5116 the commissioners court's authority over the jail is limited to adequate funding and broad operational guidelines, while actual operation is the sheriff's responsibility. The Fifth Circuit addressed the sheriff's role in Whirl v. Kern, 407 F.2d 781, 794-795 (5th Cir. 1968), observing that "the statutory obligations of a Texas sheriff are not amorphous ones" and that former article 5116 "places the responsibility for the county jail directly upon the county sheriff." The opinion concluded that the sheriff, as keeper of the county jail, has discretion to make reasonable rules for supervising prisoners and operating the jail, including whether smoking is allowed; and that if the sheriff permits smoking, the commissioners court may prohibit it only if doing so falls within its responsibility to provide a "safe and suitable jail" under section 351.001. A footnote added that section 351.002 makes the subchapter's standards "minimum standards," and that article 5115.1, V.T.C.S., vests the Commission on Jail Standards with authority to adopt reasonable rules on jail construction and operation, including minimum standards for the custody, care, and treatment of prisoners, with which the jail must comply.

Citations

Statutory authorities:

• Penal Code § 48.01 (offense to smoke in specified public places)
• article 5115, V.T.C.S. (former; commissioners court duty to provide a safe and suitable jail)
• Acts 1987, 70th Leg., ch. 883, § 1 (House Bill 1314 amendment, carried into § 351.001)
• Local Gov't Code § 351.001 (commissioners court's safe-and-suitable-jail duty)
• Local Gov't Code § 351.041 (formerly article 5116, V.T.C.S.) (sheriff as keeper of the county jail)
• article 5116, V.T.C.S. (former; sheriff's supervision and control of the jail)
• Local Gov't Code § 351.002 (minimum standards; compliance with Commission on Jail Standards)
• Article 5115.1, V.T.C.S. (Commission on Jail Standards rulemaking authority)

Cases:

• Wilson v. Lynaugh, 878 F.2d 846 (5th Cir. 1989) (rejecting Eighth Amendment claim based on exposure to environmental tobacco smoke)
• Sampson v. King, 693 F.2d 566, 569 (5th Cir. 1982) (prison officials need not meet health and safety standards for persons who are not incarcerated)
• Whirl v. Kern, 407 F.2d 781, 794-795 (5th Cir. 1968) (former article 5116 places responsibility for the county jail directly on the sheriff)

Attorney General opinions referenced:

• JM-737 (1987); H-1190 (1978)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1098
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1098.pdf

Original opinion text

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

THE ATTORNEY GENERAL OF TEXAS

September 21, 1989

Honorable Charles D. Penick
Criminal District Attorney
Bastrop County
804 Pecan Street
Bastrop, Texas 78602

Opinion No. JM-1098

Re: Authority of a commissioners court to promulgate regulations regarding smoking in the county jail, and related questions (RQ-1752)

Dear Mr. Penick:

You advise that the commissioners court is building a new county jail in Bastrop County and "is attempting to make rules concerning not allowing anyone, including inmates incarcerated in the jail, to smoke anywhere in the building."

In connection with the foregoing scenario you ask the following questions:

1. Does the Commissioner's Court have the authority to regulate whether inmates of the jail may smoke or does this authority lie solely in the discretion of the Sheriff?

2. Does smoking in a county jail by inmates constitute a hazard to nonsmoking inmates?

3. May smoking by inmates be prohibited in a county jail?

4. What rules may be dictated to the Sheriff by the Commissioner's Court concerning the operation of the jail? Is their legal authority only to provide the jail and adequate funding to operate it?

5. What remedy would the Commissioner's Court have against the Sheriff if a broad operational guideline for the operation of the jail was set by the Commissioner's Court and the Sheriff did not abide by the guidelines?

In Wilson v. Lynaugh, 878 F.2d 846 (5th Cir. 1989), the Fifth Circuit rejected a prison inmate's claim that exposure to environmental tobacco smoke violated his Eighth Amendment right to be free from cruel and unusual punishment. However, we do not believe this holding can be construed to vest an inmate or anyone else with a constitutional right to smoke in a jail or a prison. Section 48.01 of the Penal Code makes it an offense to smoke tobacco in public primary and secondary schools, elevators, enclosed theaters or movie-houses, libraries, museums, hospitals, transit system buses, or intrastate buses. Attorney General Opinion JM-737 (1987) concluded that an ordinance by a home-rule city prohibiting smoking in public places was not violative of any state law. Prison officials are not required to meet health and safety standards for persons who are not incarcerated. Sampson v. King, 693 F.2d 566, 569 (5th Cir. 1982). Granting an inmate the right to smoke would be ironic when such privilege is often denied non-incarcerated citizens.

You ask whether the authority to regulate the smoking by inmates is within the province of the commissioners court or the sheriff. Former article 5115, V.T.C.S., required the commissioners court to provide a "safe and suitable jail." Article 5115 was amended by House Bill 1314, Acts 1987, 70th Leg., ch. 883, § 1, effective September 1, 1987, and such amendment was carried forward and given effect as part of section 351.001 of the Local Government Code. The amendment contains detailed provisions defining the responsibilities of the commissioners court in providing "safe and suitable jails." Among the requirements with which the commissioners court is charged is the responsibility of providing the jail with proper sanitation, ventilation, cleanliness, health, adequate security and safety conditions. The question of whether the commissioners court has authority to determine if county jail inmates smoke turns on whether it is necessary to impose such a regulation to comply with the commissioners court's responsibility under section 351.001. The resolution of this question is dependent upon the circumstances existing in a particular county jail and must be resolved on a case-by-case basis. Such a factual determination is not within the province of the opinion process.

Section 351.041 of the Local Government Code (formerly article 5116, V.T.C.S.) designates the sheriff as the "keeper of the county jail" and provides he shall "exercise supervision and control over the jail." In Attorney General Opinion H-1190 (1978) it was stated that under then article 5116 the authority of the commissioners court over the jail is limited to providing the jail adequate funding and broad operational guidelines, and that the actual operation of the jail is the responsibility of the sheriff.

Attorney General Opinion H-1190 stated that under then article 5116 the authority to supervise, direct and control the jail is vested in the office of the sheriff. Whirl v. Kern, 407 F.2d 781 (5th Cir. 1968), addressed the responsibilities of the sheriff as keeper of the jail. In Whirl it was stated "the statutory obligations of a Texas sheriff are not amorphous ones . . . . Article 5116 places the responsibility for the county jail directly upon the county sheriff . . . ." Id. at 794-795. We are of the opinion that the sheriff as "keeper of the county jail" has the discretion to make any reasonable rules relative to supervision of prisoners and the operation of the jail, including whether smoking is allowed in the jail. In the event the sheriff should permit smoking in the jail, the commissioners court may only prohibit same if it falls within its responsibility of providing a "safe and suitable jail" under section 351.001 of the Local Government Code.[1]

We cannot address your second question because it requires the resolution of fact issues. Also, Attorney General Opinions address specific legal questions. We do not provide the type of general legal advice that your fourth and fifth questions call for. Therefore, we do not answer those questions.

[1] Section 351.002 states that the standards prescribed by this subchapter are "minimum standards." Article 5115.1, V.T.C.S., vests the Commission on Jail Standards with authority to promulgate reasonable rules relative to construction and operation of jails, including establishing minimum standards for the custody, care and treatment of prisoners. Section 351.002 provides that the county jail must comply with the minimum standards and the rules and procedures of the Commission on Jail Standards.

SUMMARY

The sheriff as "keeper of the county jail" has the discretion to make reasonable regulations relative to the supervision of prisoners and operation of the jail, including the authority to determine whether smoking should be allowed in the jail. The county commissioners court may prohibit smoking by inmates in the county jail if it falls within its responsibility to provide a "safe and suitable jail" under section 351.001 of the Local Government Code.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General