Untitled Texas Attorney General Opinion ( 1990 )

THE ATTORNEY GENERAL
OF TEXAS
Honorable Dan V. Dent Opinion No. JM-1212
District Attorney
P. 0. Box 400 Re: Location of a prisoner work
Hillsboro, Texas 76645 program facility established by
section 496.054 of the Govern-
ment Code (RQ-1884)
Dear Mr. Dent:
You ask two questions relating to the housing of in-
mates who are participants in the Work Program Plan" estab-
lished by the Board of Pardons and Paroles Division of the
Texas Department of Criminal Justice.
Subchapter C of chapter 496 of the Government Code
authorizes the Board of Pardons and'paroles Division to
establish the work program plan. Under the plan, eligible
persons in the custody of the Institutional Division of the
Department of Criminal Justice, either in a unit of the
institutional division or a county jail, are granted the
privilege of working outside the state prison system at a
work facility owned and operated by a county or municipal-
ity. Gov't Code 55 496.052(b), 496.053. Persons assigned
to a work facility under the plan remain in the legal and
technical custody of the pardons and paroles division. Id.
55 496.053, 496.054(b)(2).
To be eligible to receive participants in the program,
a facility must be a "secure community residential
facility," allowing the supervision and monitoring of the
residents' interior and exterior movements and activities.
Id. §§ 496.051(4), 496.052(a). It must be certified by the
American Correctional Association, provide on-site industry
programs allowing full-time participation by residents of
the facility, and it must be operated pursuant to contract
between the pardons and paroles division and the county or
municipality. Id. 5 496.052(a), (b). The county or muni-
cipality may subcontract with a private vendor to construct,
operate, or manage the facility. Id. § 496.052(d).
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Honorable Dan V. Dent - Page 2 (JM-1212)
The pardons and paroles division is required to grant
work program privileges under "such rules, regulations, and
conditions as provided by this Act." Id. S 496.051. Rule:
making authority is granted by section 496.054(b)(3), which
provides that the "Texas Board of Criminal Justice shall
adopt rules for the conduct of residents transferred under
this Act."
Subsection 3(a) of section 496.054, entitled "Quarter-
ing of Work Program Residents," is the focus of your
inquiry. It provides the following:
The pardons and paroles division shall, as the
need becomes evident, designate facilities in
the area of such resident's employment, for
quartering residents with work program privi-
leges. A resident may not be granted work
program privileges until suitable facilities
for quartering such resident have been pro-
vided in the area where the resident has
obtained employment or has an offer of employ-
ment, or in a designated work facility that
combines employment facilities and living
quarters for the resident and is located
within 100 miles of that resident's recorded
place of residence. (Emphasis added.)
Subsection 3(a) forbids the relocation of an inmate to a
work facility unless suitable quarters are available in
either of two settings. Your questions are directed to the
second set of circumstances.
You first ask what constitutes a work program partici-
pant's "recorded place of residence" for purposes of deter-
mining the area to be served by a designated work facility.
You also ask whether a person in the custody of the pardons
and paroles division may be quartered in a work facility
that is more than 100 miles from the person's "recorded
place of residence."
Information furnished to indicates that your
questions are prompted by proposayz of the city of Itasca
and Red River County to construct separate work program
facilities. We are advised that the pardons and paroles
division has computed the eligible work program population
by construing subsection 3(a) of section 496.054 to provide
that residents of a county are eligible if any part of the
county is within 100 miles of the work program facility. In
effect, the pardons and paroles division construes the
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Honorable Dan V. Dent - Page 3 (JM-1212)
phrase "recorded place of residence" to mean the county in
which the person maintains residence. The importance of
this decision is illustrated by applying the definition to
the competition between Red River County and the city of
Itasca.
A brief submitted by the city of Itasca contains a
number of exhibits, including maps and tables showing the
number of eligible work program participants in counties
within a loo-mile radius of the proposed sites. The maps
show that only a small portion of Dallas County is within a
loo-mile radius of Clarksville, which we understand is the
site of the Red River County facility. All of Dallas County
is within a loo-mile radius of Itasca.
Under the pardons and paroles division's reading of
subsection 3(a), all persons eligible to participate in the
work program plan who reside anywhere in Dallas County are
included in the eligible population for the Red River County
facility. Assuming both facilities are awarded contracts by
the pardons and paroles division, any inmate from Dallas
County assigned to one facility reduces the pool of
potential residents at the other.
p
The city of Itasca's brief frames the issue thus:
The issue then is whether the fact that the
loo-mile radius of the Red River site touches
a small portion of Dallas County serves to
bring everyone within that county within that
radius.
The term "recorded place of residence" is not defined
in subchapter C of chapter 496, nor is the pardons and
paroles division given specific guidance in determining a
work program participant's recorded place of residence. In
ascertaining the meaning of this language, it is appropriate
to consider, among other things, legislative history, the
common law, laws on the same or similar subjects, the object
sought to be attained, the consequences of a particular con-
struction of the language, and the administrative construc-
tion of the term. See Gov't Code § 311.023.
The legislative history of the work program plan does
not resolve the issue of the meaning of "recorded place of
residence." Subchapter C of chapter 496 was enacted as part
of a comprehensive bill reorganizing and amending several
laws governing the criminal justice system. H.B. 2335, Acts
1989, 71st Leg., ch. 785, s 4.19, at 3523. The provisions
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Honorable Dan V. Dent - Page 4 (JM-1212)
authorizing the work program plan were added in conference
committee; there is no recorded legislative history
available. The substance of these provisions was originally
proposed during the same legislative session by a separate
bill, House Bill 2383. The legislative history of that
proposal suggests one meaning of the phrase "recorded place
of residence."
In its original form, House Bill 2383 made no reference
to the residence of an eligible inmate or the placement of
an inmate in a work facility within a specified distance of
the inmate's residence. A committee substitute first
proposed that an eligible inmate could be placed in a work
facility that was within 80 miles of the inmate's recorded
place of residence.
Testimony of the author of the bill at the public
hearing on House Bill 2383 reveals that the work program
plan was inspired by recommendations of the Legislative
Budget Board to the Texas Department of Corrections (now the
institutional division). Public Hearina on H.B. 2383 Before
the House Comm. on Corrections, 71s.t Leg. (April 19, 1989)
(testimony of Rep. Bob Melton) (tape available through House
Technical Services). The feature of the work program
receiving the greatest commentary was its effect on families
and dependents of work program participants. The work
program, it was reported, would contribute to.the preserva-
tion of the family unit by allowing the inmate to contribute
to his family's support and by allowing the family greater
and closer access to the inmate while he served the
remainder of his sentence. Id.; Public Hearinu on H.B. 2383
Before the House Comm. on Corrections, (April 19, 1989)
(testimony of Ann Lynn McElroy) (tape available through
House Technical Services).
The recording of this hearing contains no testimony
confirming the pardons and paroles division's construction
of the phrase "recorded place of residence." Indeed, the
only available public record of the legislative history of
the work program provisions suggests that the then 80-mile
radius should be measured from the actual residence of the
inmate's family or dependents or the actual residence in
which the inmate intends to settle following release from
custody.
The language of subsection 3(a) of section 496.054 was
changed in the conference committee on House Bill 2335 to
its present form. The pardons and paroles division has
supplied us with a copy of a letter from Senator Bob
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Honorable Dan V. Dent - Page 5 (JM-1212)
McFarland who co-chaired the conference committee that added
the work program provisions to House Bill 2335. Senator
McFarland writes that prior to adoption of the final con-
ference committee report he advised a member of the com-
mittee that he understood the bill would bring Dallas within
the area served by the Red River County facility. It is
inappropriate, however, to consider post-enactment state-
ments of legislative intent when construing an ambiguous
statute. See. e.s Commissioners' Court El Paso Countv
El Paso Countv Shekiff's DeDUtieS Ass'n, 620 S.W.2d 9%
(Tex. Civ. App. - El Paso 1981, writ ref'd n.r.e.).
Where legislative history is inconclusive one authority
concludes that it is appropriate to decide an issue of
statutory construction solely with intrinsic aids rather
than legislative history. 2A Singer, Sutherland Statutorv
Construction 55 48.01, 48.02 (Sands 4th ed. 1984). We think
this rule is inappropriate here, since the Code Construction
Act permits consideration of legislative history in addition
to other factors in ascertaining the meaning of an ambiguous
statute. See Gov't Code § 311.023. The preponderance of
these additional factors supports a narrow construction of
the phrase "recorded place of residence."
Section 311.023 of the Government Code allows consider-
ation of laws on the same or similar subjects and the common
law in arriving at the meaning of a statute. It is also
appropriate to examine the meaning of the same or similar
language in other statutes. See Texas Bank & Trust Co. v.
Austin, 280 S.W. 161 (Tex. 1926). When the same or similar
language is employed in the same connection in different
statutes, it will generally be construed to have the same
meaning in both unless a different meaning is indicated.
See Brown v. Darden, 50 S.W.Zd 261 (Tex. 1932). This rule
is particularly applicable where the meaning of the language
has been judicially determined. Id.
The operative component of the phrase "recorded place
of residence" is "residence.N~l For purposes of determining
1. Our research has shed no light on the meaning of
the word "recorded" in the phrase "recorded place of resi-
dence." By "recorded," the legislature may have meant the
inmateIs place of residence as reflected in the records of
the institutional division or pardons and paroles division
(Footnote Continued)
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Honorable Dan V. Dent - Page 6 (JM-1212)
tuition rates at state institutions of higher education,
residence is defined simply as "domicile." Educ. Code
§ 54.052(a)(l). The Election Code also defines residence as
qqdomicile,u but adds that the term means "one's home and
fixed place of habitation to which he intends to return
after any temporary absence." Elec. Code g 1.015(a).2 See
also Code Crim. Proc. art. 18.20, 5 l(13) (defining "reZ
dence" in the same terms for purposes of statute governing
interception of oral, wire, or electronic communications by
law enforcement agencies).
The courts caution that residence is an elastic term
that is difficult to define. Mills v. Bartlett, 377 S.W.2d
636 (Tex. 1964). Residence may be temporary or permanent in
nature, but it generally requires some condition greater
than mere presence. See Whitnev v. State, 472 S.W.Zd 524
(Tex. Crim. App. 1971). Most cases characterize residence
as a person's place of abode and use the terms residence,
abode, and dwelling interchangeably. See. e.a Snvder 'v.
Pitts, 241 S.W.Zd 136 (Tex. 1951); Houston Priniincf Co.
Tennant, 39 S.W.2d 1089 (Tex. 1931): Whitnev v. Stat::
sunra; Carlos v. State, 705 S.W.Zd 359 (Tex. App. - Beaumont
1986, pet. ref'd): Farmer's Mut. Protective Ass'n of Texas
v. Wriaht, 702 S.W.2d 295, 297 (Tex. App. - Eastland 1985,
no,writ). These authorities suggest that subsection 3(a) of
section 496.054 requires a measurement far more precise than
simply the county the inmate calls home.
More important, "residence" takes its meaning in light
of the object or purpose of the law in which it is employed.
Switzerland General Ins. Co. v. Gulf Ins. Co., 213 -S.w.2d
161 (Tex. Civ. App. - Dallas 1948, writ dism'd). Section
(Footnote Continued)
or some other public source. On the other hand, it may only
mean that the pardons and paroles division inquire of the
inmate where he considers his residence to be or where he
intends to reside following release from custody. In light
of the purposes of the work program, it would also be
appropriate to consider the residence of the inmate's family
where the inmate is under an obligation to provide support
to the family.
2. An inmate of a penal institution does not, while an
inmate, acquire residence at the place where the institution
is located. Elec. Code 5 1.015(e).
P. 6414
Honorable Dan V. Dent - Page 7 (``-1212)
496.051 of the Government Code provides an inventory of the
objectives of the work program plan:
The board of pardons and paroles division
of the Texas Department of Criminal Justice
is hereby authorized to grant work program
privileges, under the 'Work Program Plan,' as
hereinafter provided, which shall include
programs and procedures for eligible persons
in the custody of the institutional division
of the Texas Department of Criminal Justice
to contribute to court-ordered restitution,
pavment of court COStS. SUDDOrt for the
person's familv and denendents. savinas for
the oerson's release. and the exoenses of the
person's room. board. and maintenance, under
such rules, regulations, and conditions as
provided by this Act. (Emphasis added.)
Four objectives of the work program plan relate to the
inmate's preexisting obligations to reimburse the state and
victims of his crimes and to support his family. The fifth
relates to the inmate's preparation for his return to
society.
We see no reason why the state's interests in recover-
ing court costs, restitution, and expenses would require
placing an eligible inmate in a work facility that is within
100 miles from the inmate's recorded place of residence.
The loo-mile radius of subsection 3(a) therefore must
pertain specifically to the goals of providing support to
the inmate's family or dependents and easing the inmate's
return to society. We think a narrow, precise construction
of the phrase "recorded place of residence" -- i.e., one
that defines residence as a person's place of abode,
dwelling, or habitation -- would be more in keeping with
these goals. . .
As for the consequences of the pardons and paroles
division's construction of "recorded place of residence,"
it might be argued that inconvenience to the inmate and
families resulting from the agency's application of the
statute are minimal in the case of Red River County when
compared to the ensuing administrative convenience. While
that may be true in this instance, it is not difficult to
envision a situation where this interpretation results in
extreme hardship for those who were intended to benefit from
the loo-mile radius limitation of subsection 3(a). For
example, if a secure work facility were to be constructed in
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Honorable Dan V. Dent - Page 8 (JM-1212)
southern Ector County, its eligible inmate population could
include inmates from as far away as Presidio and the Big
Bend area, a distance of nearly 200 miles. This variation
is inconsistent with the goals of supporting family and
dependents and easing the inmate's transition to freedom.
An accepted principle of statutory construction is that
the construction placed upon a statute by the agency charged
with its administration is entitled to great weight, nc
parte Roloff, 510 S.W.Zd 913 (Tex. 1974); State v. Arkansas
Dock and Channel Co., 365 S.W.2d 220 (Tex. Civ. App. - San
Antonio 1963, writ ref'd), especially where contemporaneous,
or nearly so, with the statute itself. Burrouahs Lvles
181 S.W.2d 570 (Tex. 1944); Stanf rd v. Butler 1:; S W.2d
269 (Tex. 1944); Attorney General gpinion JM-lli2 (199Oj , at
25. On the other hand, the courts will not respect an
agency's interpretation of a statute that is contrary to the
clear meaning of an unambiguous statute. Texas Health
Facilities Comm'n v. El Paso Medical, 573 S.W.2d 291 (Tex.
Civ. App. - Tyler 1978, writ ref'd n.r.e.); 2 Tex. Jur. 3d,
Administrative Law 5 7. Furthermore, the courts will not
adhere to the construction of a statute by an administrative
agency where such construction is clearly erroneous or
inconsistent with the enabling statute. State v. United
Bondinc Ins. Co., 450 S.W.Zd 689 (Tex. Civ. App. - Austin
1970, no writ).
The legislative history of the work program provisions,
the judicial construction of the term N'residence,t'and the
consequences of the pardons and paroles division's construc-
tion of subsection 3(a) of section 496.054 persuade us that
its construction of the statute is not consistent with the
goals of the work program plan. An eligible person's resi-
dence for purposes of the program is, in our opinion, the
person's actual place of abode, dwelling, or habitation.
Accordingly, a person in the custody of the pardons and
paroles division may not be relocated to a "designated work
facility" under subsection 3(a) if the facility is more than
100 miles from the actual abode, dwelling, or habitation.
SUMMARY
An eligible person's "recorded place of
residence" for the purposes of subsection
3(a) of section 496.054 of the Government
Code is the person's actual place of abode,
dwelling, or habitation. A person may not be
placed in a "designated work facility" pur-
suant to subsection 3(a) if the facility is
pi. 6416
Honorable Dan V. Dent - Page 9 (JM-1212)
more than 100 miles from the actual abode,
dwelling, or habitation.
JIM MATTOX
Attorney General of Texas
MARY KELLER.
First Assistant Attorney General
LOU MCCRKARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
p. 6417