Do Texas jail standards apply to a city jail that a private company runs under contract?

Texas AG Opinion JM-1260: Do State Jail Standards Reach a Privately-Run City Jail?

Plain-English summary

Texas cities are allowed to hire an outside company to run a city jail instead of staffing it themselves. The executive director of the Texas Commission on Jail Standards asked the Attorney General whether the state minimum jail standards, which the commission writes for county jails, also govern a jail that a private vendor runs for a municipality.

The Attorney General said yes. The reason is a chain of two statutes. Section 361.061 of the Local Government Code lets a city contract with either a county or a private vendor to run a jail. Section 361.062 then spells out what that contract has to say, and the first required term is that the vendor operate the facility in compliance with the minimum standards the Commission on Jail Standards adopts, and that the vendor obtain and keep a certification of compliance from the commission. So even though the commission's rulemaking statute (section 511.009 of the Government Code) speaks only of "county jails," the Local Government Code separately pulls the commission's standards into every city-vendor jail contract.

The opinion added that reading the two statutes any other way would produce an illogical result. Section 361.061 treats a county-run city jail and a vendor-run city jail as interchangeable options. It would make no sense for the commission's rules to govern the county-run version but not the vendor-run version. The same logic carried the commission's other duties, consultation, technical assistance, plan review, and inspection, into these jails as well.

On timing, the Attorney General concluded the requirements reach jails already in operation, but only where the city-vendor contract was entered into on or after August 3, 1987, the effective date of the statute (former article 5115e(b)) that became section 361.062. Texas statutes are presumed to work prospectively unless the Legislature clearly says otherwise, and this one applies by its terms to "contracts entered into under this article," so it does not reach back to contracts signed before that date.

Currency note

This opinion was issued in 1990. 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.

Who this opinion affected (as of 1990)

The Texas Commission on Jail Standards: The opinion confirmed that the commission's minimum standards, and its consultation, plan-review, and inspection functions, extended to jails run by private vendors for cities, not just to county jails, through the contract terms that section 361.062 of the Local Government Code makes mandatory.

Cities that contracted out jail operations: A municipality using a private vendor could not treat the arrangement as a way around state jail standards. The contract had to require compliance with the commission's standards and a certification of compliance, the same as if the city had contracted with a county.

Private jail operators: A vendor running a city jail was bound by the commission's construction, equipment, maintenance, and operation standards and was subject to commission inspection, provided the underlying contract was signed on or after August 3, 1987.

Common questions

Does a city avoid state jail rules by hiring a private company to run its jail?
No. The opinion concluded that section 361.062 of the Local Government Code requires the operating contract to make the private vendor comply with the Commission on Jail Standards' minimum standards and obtain a certification of compliance, so the same standards that govern a county-run jail reach a vendor-run one.

The jail-standards statute only mentions "county jails." How can it cover a city jail?
The commission's rulemaking statute, section 511.009 of the Government Code, does speak of county jails. But the requirement flows in through a different statute: section 361.062 of the Local Government Code, which was enacted later and expressly conditions city-vendor jail contracts on compliance with the commission's standards. The Attorney General read the two statutes together.

Do the commission's inspection and technical-assistance duties apply to these jails too?
Yes. The opinion found the contract requirements in section 361.062 broad enough to include consultation, technical assistance, plan review, and inspection for jails a private vendor runs for a municipality.

Does this apply to a jail that was already open when the question was asked?
Yes, but only if the contract between the city and the private vendor was entered into on or after August 3, 1987, the effective date of the predecessor to section 361.062. The statute is prospective and applies to contracts entered into under it.

Background and statutory framework

The Texas Commission on Jail Standards derives its rulemaking power from section 511.009 of the Government Code, a nonsubstantive recodification of former article 5115.1, V.T.C.S. (originally enacted by H.B. 272, Acts 1975, 64th Leg., ch. 480). That section directs the commission to adopt minimum standards for the construction, equipment, maintenance, and operation of "the county jails," along with standards for custody and care of prisoners, staffing, rehabilitation programs, plan review, reporting, and inspection.

Separately, section 361.061 of the Local Government Code (formerly article 5115e(a), V.T.C.S.) authorizes a city's governing body to contract with a private vendor or a county to operate and maintain a jail. Section 361.062 (formerly article 5115e(b)) lists the terms such a contract must contain. Its first requirement is that the contract obligate the private vendor or county to operate the facility in compliance with the commission's minimum standards and to receive and retain a certification of compliance.

The opinion read these provisions together (Government Code § 311.025), reasoning that section 361.062, the later enactment, evidenced the Legislature's intent to enlarge the commission's responsibility to include private vendors and counties operating jails for municipalities. It also invoked the presumption of prospective operation in Government Code § 311.022 to hold that section 361.062 reaches existing facilities only where the contract was signed on or after the statute's August 3, 1987 effective date (H.B. 85, Acts 1987, 70th Leg., 2d C.S., ch. 35). A footnote noted that subsection 9A had been added to article 5115.1 by S.B. 289, Acts 1989, 71st Leg., ch. 20, addressing fire-sprinkler placement, and that Attorney General Opinion MW-328 (1981) had earlier concluded that city jails under contract with counties to hold county prisoners are "county jails" under section 511.001 of the Government Code.

Citations

Statutory authorities:

• Government Code § 511.009 (commission's minimum-standards rulemaking; recodification of article 5115.1, V.T.C.S.)
• Government Code § 511.001 (definitions)
• Government Code § 311.022 (presumption of prospective operation)
• Government Code § 311.025 (construing statutes together)
• Local Government Code § 361.061 (city may contract with vendor or county to run a jail; formerly article 5115e(a), V.T.C.S.)
• Local Government Code § 361.062 (required contract terms, including compliance with commission standards; formerly article 5115e(b), V.T.C.S.)
• H.B. 272, Acts 1975, 64th Leg., ch. 480 (original enactment of article 5115.1)
• H.B. 85, Acts 1987, 70th Leg., 2d C.S., ch. 35 (former article 5115e(b); Aug. 3, 1987 effective date)
• S.B. 289, Acts 1989, 71st Leg., ch. 20 (added subsection 9A, fire-sprinkler placement)

Prior Attorney General opinion referenced:

• Attorney General Opinion MW-328 (1981) (city jails under contract with counties to hold county prisoners are "county jails" under section 511.001)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1260
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1260.pdf

Original opinion text

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

December 12, 1990

Mr. Jack E. Crump
Executive Director
Texas Commission on Jail Standards
P. O. Box 12985
Austin, Texas 78711

Opinion No. JM-1260

Re: Whether minimum jail standards established by section 511 of the Government Code are applicable to jails operated for a municipality by a private entity (RQ-2069)

Dear Mr. Crump:

You ask whether minimum jail standards adopted by the Texas Commission on Jail Standards pursuant to section 511.009 of the Government Code are applicable to jails operated for a municipality by a private entity. You ask:

Do Minimum Jail Standards developed as a requirement of Section [511.009] apply to jails . . . operated by a private entity for a municipality?

Do requirements to provide consultation and technical assistance, review of plans, and inspection apply to these facilities?

Does this statute apply to those facilities already in existence [that] are operated by a private vendor for a municipality?

Section 361.061 of the Local Government Code, formerly codified as article 5115e(a), V.T.C.S., provides that the governing body of a municipality may contract with "a private vendor or a county" for the operation and maintenance of a jail.

Section 361.062 of the Local Government Code, formerly codified as article 5115e(b), sets out the conditions that must be included in such a contract. Subsection (1) of section 361.062 states:

A contract made under this subchapter must:

(1) require the private vendor or county to operate the facility in compliance with minimum standards of construction, equipment, maintenance, and operation of jails adopted by the Commission on Jail Standards and receive and retain a certification of compliance from the commission.

Your concern is prompted by the provisions of section 511.009 of the Government Code authorizing the commission to adopt reasonable standards for the operation of county jails. Because section 511.009 refers only to the commission's power to adopt standards for county jails, you question whether this rulemaking authority is extended to municipal jails operated by a private entity under section 361.061.

Section 511.009 is a nonsubstantive recodification of article 5115.1, V.T.C.S., originally enacted in 1975. H.B. 272, Acts 1975, 64th Leg., ch. 480, at 1278. Section 511.009 sets forth the general duties of the commission:

(a) The commission shall:

(1) adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of the county jails;

(2) adopt reasonable rules and procedures establishing minimum standards for the custody, care, and treatment of prisoners;

(3) adopt reasonable rules establishing minimum standards for the number of jail supervisory personnel and for programs and services to meet the needs of prisoners;

(4) adopt reasonable rules and procedures establishing minimum requirements for programs of rehabilitation, education, and recreation in county jails;

(5) revise, amend, or change rules and procedures if necessary;

(6) provide to local government officials consultation on and technical assistance for county jails;

(7) review and comment on plans for the construction and major modification or renovation of county jails;

(8) require that the sheriff and commissioners of each county submit to the commission, on a form prescribed by the commission, an annual report on the conditions in each county jail within their jurisdiction, including all information necessary to determine compliance with state law, commission orders, and the rules adopted under this chapter;

(9) review the reports submitted under Subdivision (8) and require commission employees to inspect county jails regularly to ensure compliance with state law, commission orders, and rules and procedures adopted under this chapter; and

(10) at least annually determine whether each county jail is in compliance with the rules and procedures adopted under this chapter.

(b) A commission rule or procedure is not unreasonable because compliance with the rule or procedure requires major modification or renovation of an existing jail or construction of a new jail.

Gov't Code § 511.009.[Footnote 1]

The legislature has by the express provisions of section 361.062 evidenced its intent that the Commission on Jail Standards' responsibility be enlarged to include private vendors and counties operating a jail for a municipality. Section 361.062 is the later enactment of the legislature and we believe both statutes must be construed together in order to give effect to the intent of the legislature. See Gov't Code § 311.025. In construing a statute the courts may consider the consequences of a particular construction. Section 361.061 allows municipalities to contract with a county as well as a private vendor for the operation of a jail. To conclude that a county operated municipal jail facility is subject to rules of the commission while a municipal facility operated by a private vendor is excepted from regulation would produce an illogical result as well as create confusion in the administration of the act.[Footnote 2]

We conclude that the requirements of section 511.009 of the Government Code are applicable insofar as they come within the requirements of subsection (1) of section 361.062 of the Local Government Code that requires the operation of the facility "in compliance with the minimum standards of construction, equipment, maintenance, and operation of jails adopted by the Commission on Jail Standards and [that the facility] receive and retain a certification of compliance from the commission."

Your second question is whether requirements to provide consultation and technical assistance, review of plans, and inspection apply to these facilities. We believe the requirements stated by section 361.062 of the Local Government Code for a contract entered into between a municipality and a private vendor under that provision are sufficiently broad to include the requirements that you ask about.

Your third question is whether section 361.062 of the Local Government Code makes the section 511.009 of the Government Code requirements applicable to those facilities already in existence operated by a private vendor for a municipality. Former article 5115e(b), V.T.C.S., recodified as section 361.062 of the Local Government Code, was adopted in 1987 with an effective date of August 3, 1987. H.B. 85, Acts 1987, 70th Leg., 2d C.S., ch. 35, at 123. A statute is presumed to be prospective in its operation unless expressly made retrospective. Gov't Code § 311.022. The statute also negates retrospective operation in that it applies to "contracts entered into under this article." We conclude that the provisions of section 361.062 of the Local Government Code are applicable to those facilities already in existence, so long as the contract between the municipality and a private vendor for the operation of the jail was entered into on or after the statute's effective date of August 3, 1987.

                    SUMMARY

       Minimum jail standards adopted by the Texas Commission on Jail Standards are applicable to jails operated by a private vendor for a municipality insofar as they come within the requirements of section 361.062 of the Local Government Code that require the operation of the facility "in compliance with the minimum standards of construction, equipment, maintenance, and operation of jails adopted by the Commission on Jail Standards and receive and retain a certification of compliance from the commission." Requirements that the commission provide consultation and technical assistance, review of plans, and inspection apply to jails operated by a private vendor for a municipality. The provisions of section 361.062 of the Local Government Code are applicable to jails operated by a private vendor, so long as the contract between the municipality and the private vendor for the operation of the jail was entered into on or after August 3, 1987, the effective date of the prior codification of section 361.062.

                               Very truly yours,

                               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

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

Footnote 1: Subsection 9A was added by S.B. 289, Acts 1989, 71st Leg., ch. 20, at 297, to article 5115.1, V.T.C.S., without reference to its repeal and recodification as section 511.009 of the Government Code. Subsection 9A provides:

(a) On the request of a sheriff, the commission shall inspect a facility to determine whether there are areas in the facility in which fire sprinkler heads should not be placed as a fire prevention measure. In making a decision under this section, the commission shall consider:

(1) the numbers and types of inmates having access to the area;

(2) the likelihood that an inmate will attempt to vandalize the fire sprinkler system or commit suicide by hanging from a sprinkler head; and

(3) the suitability of other types of fire prevention and smoke dispersal devices available for use in the area.

(b) If the commission determines that fire sprinkler heads should not be placed in a particular area within a facility, neither a county fire marshal nor a municipal officer charged with enforcing ordinances related to fire safety may require the sheriff to install sprinkler heads in that area.

Footnote 2: Attorney General Opinion MW-328 (1981) concluded that city jails under contract with counties to hold county prisoners are considered "county jails" under section 511.001 of the Government Code.