Untitled Texas Attorney General Opinion ( 1985 )

The Attomry ~General of Texas
JIM MAlTOX
October 18. 1985
Attorney General
supwllw court BulldW nr. 0. L. nccottn opinion So. J%362
P. 0. Box 1254a Director
AUdh. lx. 78711.254a Texas Department of! Corrections P.C: Interpretation of the Texas
512M752501 P. 0. Box 99 Prison. &magement Act, article
Telex 9lwS741387
l*lacoplqr 512N75Q2ee
Euntsvillc, Texas 77340 61840. V.T.C.S.
Dear ~nr. ,McCotter:
714 JaCkwfI. She 700
rhll0B. lx. 752024fm You ask seve:xal questions regarding the Texas Prison Management
214i?42eau
Act. article 61842, V.T.C.S, An explanation of some of the provisions
of that act is aecfessary to put your questions In context.
4824 AlbeftE Ave.. suita IS0
El Paso. TX. 788052793 Tbe act pravides that if the inmate population of the Texas
915l5333uu Department of Corrections [hereinafter TDC] reaches 95 percent or tire
of Its bouaing capacity, you must notify the governor of that fact and
1001 Texs0. Suits 700
credit 30 days of adminiatratlve good conduct time to certain
Houston. TX. 77002-3111 categories of immtes. ra.,2(!_).~ Tbe act further provides t+~$f~
7lY@5888 the governor determines certain specified facts to be true. be must
notify the Board of Pardons and Paroles that emergency overcrowding
exists vltbin 30 days of receiving your notice. Id. 12(c). Once the
BW Broadway, Suite 312
Lubbock. TX. 79401-3479
governor notlfien the boaid of the emergency ovetcrovding, the board
ecw747-623a umst advance the parole revlav and eligibility date of the same
cstegories nf-Lmstfsm~tlgat received administtatrve good conduct time
under section 2(b). .Id. )2(d). If the urgency still exists 60
4309 N. Tenth. Suite B days after tbe Ikovernor’ notification to the board, the board must
MCAltm, lx. 7S501.1685
512mS2-4S47
again advance the parole~review and eligibility date of such inmates.
Id. 12(e). If the emergency -still exists 120 days after the
zernor’s notification to the board, the governor must order you to
200 M0ln Plaza. suite 4ca make another avard of good conduct time to such inmates. Id. 12(f).
an Antonio, TX. 782052797
The emergency ends vhen the inmate population is reduced to-&s than
51a2254191
95 percent of cap,mcity:
An Equal Opportunity/
AllirmltlV. ActIon EmPlOW
1. In your letter you mention that a “pool” of inmates is
identified vhen :sectlon 2(b) is lmplewnted and imply that the sub-
sequent measure:a set out in the act apply only to the inmates ``~ .~ wbo
~.``~
received an award of good conduct time under section 2(b). Sections
2(d), (e), and (f) apply to “those inmates who are described by
[section 2(b)]” rather than “those inmates who received awards of good
conduct th undscr section 2(b).” Thus, sections 2(d), (e) , and (f)
apply to any ~iucate who veId. 12(g). The effectivemss of the act is critical to you because
F have agreed in the Stipulation Modifying Crowding Provisions of
Amended Decree in Ruix ~1 HcCotter that you will not allow your
population to exceed 95 per’cent of capscity.
Several of your questions involve the timing of implameutation of
these provisions. First ( you arc coocernedem about the possibility
that, for example, the Innate population~could reach 95 percent on ,one
day, dip below 95 percent on the next day. and then reach 95 percent
again several days later. You ask ubetber section 2(b) would require
you to award good conduct time on both of the days that the population
reaches 95 percent of capacity or only on the first day. In such a
situation you should award good conduct time only on the first day.
The act permits inmates to be released to prevent overcrowding,
not to benefit the inmatc!f~. Implementation of section 2(b) sets the
statutory scheme in motion. After you notify the governor of the
situation, he has 30 drys to notify the board that an emergency
exists. If the inmate Ilopulation is hovering near 95 percent, the
governor can use those 30 days to determine where the population will
stabiliee. If the inmate population eventually settles at less than
95 percent of capacity, th’e governor need not notify the board that an
emergency exists. Id. 12(c). If the population settles at 95 percent
or higher. the gwxor must notify the ~board~- that an emergency .``
exists. Id. Once the governor does so, the statute prescribes
various Gres to be taken and the intervals at which tbey``are~fo``be
t&en. The act’s CrcheduLLng of, ~tha release mechanisms in a- specific
sequence and at specifiei. intervals indicates that the legislature did
not intend the act to authorize more frequent awards of good conduct
time simply because of minor fluctuationsin the inmate population.
Thus, once you impl~aaent eectlon 2(b) by awarding administrative
good conduct time and noMfying the governor of the size of the inmate
population, you would have no authority or obligation to implement
section 2(b) again for st least 30 days. If the governor did declare
an emergency, you would ‘have no autbority to implement section 2(b)
during the implemantat~.on of the rest of the cycle. After the
governor declared the exlcrgency to be over, you would be required to
implement section 2(b) again if the population reached 95 percent. of-
capacity.
You also ask whether you could implement section 2(b) again if an
emergency still existed after the``implementation ~of the steps pre-
scribed in sections 2(d: , (e), and (f). The act does not provide for
p. 1660
Mr. 0. L. n&otter - Page 3 W-362)
a situation in which an emergency still exists after those steps have
been taken. Apparently tbc? legislsture assumed that the measures set
out in the ststute would be sufficient to reduce the populatioo below
95 percent. You are concerned, however, that those measures might not
be adequate to meet an q nergency because of the current rate of
admissions.
If the inmate populti,t,ion is still at or above 95 percent of
capacity after implamentatlon of the measures set out in the act, then
the steps must be repeated. We reach this conclusion by looking at
the structure and purpose Iof the act. Article 61840 does not limit
the number of times that the measures it prescribes can be used. As
we pointed out previously!, the statute would require you to initiate
the cycle of ameliorative niizasures``again-,i*the ~population reached 95
percent again after the -)revio& emeriGi%y *ad -tinded; ‘~ Because the
statute requires the measures to be repeated in the case of successive
emergencies, it makes no sense to conclude that the statute would
prohibit the measures from being repeated in the case of an
intractable emergency.
The legislative bist~Jry shovs that such a construction co+rts
with the purpose of the act. Tbe year before the act was passed, TDC
bad responded to emergency overcrovding by refusing to admit new
inmates. See S.B. No. 127, 68th Leg., Senate Committee on State
Affairs (March 9, 1983)i -4he sponsors. of the act stated that their
bill allwed accelerated release of non-violent prisoners in the event
of emergency overcrovding and therefore provided “a way of keeping the
front doors open vhile not jeopardizing in any way the safety of our
citixenry.” Id. Because! the intent of the legislature was to tiil
emergency overcrowding and to do so in a way tbit vould keep the front
door of the prison open, we.tTiitik tb&act must be-iead tom reqtiire then-~
cycle of &rative measures to begin again if the first cycle does not
relieve the emergency.
You also ask when you must begin the cycle again. The act
specifies that 60 days Duet elapse between implementation of sections
2(e) and 2(f). The act. also specifies that 60 days must elapse
between Implementation oE sections 2(f) and Z(g). Consequently, 60
days must elapse after :implementation of 2(g) before you start the
cycle again by implementing section 2(b).
In addition to yortr questions regarding the timing of the
measures set out in the act, you ask:
May the Texas Board ~of Corrections delegate its
responsibility to establish ‘capacity’ to the
director of TDC?
It is not clear from your letter whether you are asking about setting
the standards for determio.ing capacity or applying those standards.
p. 1661
_ Page T4 .(tii3G2) .,-.. =
nr. 0. L. ncCottcr
The act explicitly authorizes the Texas Eoard of Corrections to
set the standards used to dlctermine the number of prisoners the prison
aystam could house:
'Capacity' oeaa:s the greatest density of prison
inmates in relation to space available for inmate
housing in the Texas~. Departant roof Corrections
that is in compliance with standards for prison
population by the Texas Board of Corrections.
Art. 61840. 51(a)(l). Ptib:Llc duties that require the exercise of
discretion must be perforale:d by the officials designated by ststute
and cannot be delegated to others. Newsom v. Adam, 451 S.U.2d 940,
953 (Tex. Civ. App. - Beannont 1970, no writ); Moody v. Texas Water
Commission, 373 S.W.2d 793. 797 (Tex. Civ. App. - Austin 1963,,writ
ref'd n.r.e.). A state kloard can, however, delegate ministerial
duties. See Attorney 'General Opinions V-350 (1947); WV-66 (1957).
Thus, theboard cannot delegate its duty to set standards. The board
can, however, delegate Lee ~mini``erial duties involved in determining
capacity, such as counting beds.
Finally, you ask about the meaning of the provision In the act
that states that temporary housing may not be considered for purposes
of the calculations of capacity. Art. 61840, 51(b). You point out
that the overcrowding stipulation in Ruie, which contains a general
prohibition against the 'use of tempoTry housing structures, does
permit the use of tents for roving inmate construction crews and for
inmates displaced from regular housing because of renovstions. You
ask:
May temporcllrJ:_hpusing be considered in calcula-
tions ~for~-``~-capafity, assuming such temporary
housing meets the standards set by'the stipulation
in Ruiz?
Although the Texas I'rison Management Act. which wss adopted in
1983, obviously did norm-incorporate the subsequent Ruiz stipulation
regarding temporary structures. the Ruiz case was in theminds of the
legislators when they adopted the act.During a committee hearing on
the act the following exc'~ange took place:
SENATORX: We assume that the judgment of
Judge Justice requires that we be brought into
compliance without temporary housing by the first
of 1984. I don't find 'temporary housing' de-
fined. If we went to a temporary building like
YOU see st schools sometimes for dormitory
purposes, rathtn: than tents, do you believe that
we would have to exclude those then in determining
whether we were! at the 94 percent or 95 percent?
p. 1662
Mr. 0. L. M&otter - Page 5 (J’H-362)
SRNATOR Y: I don’t believe so. We might ought
to make a little l~ntent on that.
SENATORX: I’:11 assist in tbat regard. What
you’re talking Ilbout here on temporary housing,
basically, is the tents [then being used on prison
grounds] and three-celling.
SENATORY: Absolutely.
S.B. No. 727, Acts 68th Leg.. Senate Committee on State Affairs (March
9. 1983).
The legislstlve history makes clear that the legislsture wanted
to prohibit the permanent use of makeshift living facilities and that
Ruis was the motivation for doing so. The set wss not intended to
Gde the use of roviq; Inmate construction crews or the use of
makeshift structures in exigent circumstances. See art. 61840, 12(h)
(providing that the act does not apply in case ofdisaster). Accor-
dinsly, we think the ac’ : would permit the inclusion of makeshift
structures in calculatfone of capacity In some out-of-the-ordinary and
short-lived situations. Of course, merely reaching or exceeding 95
percent of capacity is not such sn exigent circumstance. One point of
the set is to prohibit tt.e expansion of capacity by use of makeshift
houring . The propriety csf counting makeshift structures in capacity
depends on the particular facts of any given situation, and the Board
of Corrections would have to make the necessary determination as part
of Its duty to define “capacity.” Although we cannot say that the
Rufr eettlement itself LOBIncorporated in the act, the Board of
Corrections should bear :Ln mind the legielature’s desire to resolve
the overcrowding issue b,cing litigated in Ruia when it sets any
standards for determining ‘capacity.
SUMMARY
If the inmal:a population of the Texas Depsrt-
ment of Corrections reaches 95 percent of capacity
on one day, dips below 95 percent the next, and
reaches 95 percent sgain on the third day, the
director of tt#e Texss Department of Corrections
should award a~$dnistrstive good conduct time only
on the first duly the population reaches 95 percent
of capacity. V.T.C.S. art. 61840, 12(b).
The Texas Department of Corrections mst start
the cycle of curative measures set out in the
Prison Hansgenent Act again if the first cycle
fails to reduce prison population below 95 percent
of capacity.
p. 1663
tlr. 0. L. McCotter - Psge 6 (JM-362)
The Board of Corrections may delegate the
minfsterial aspects of determining capacity to the
Texss Department of Corrections.
In some circumstances, the Board of Corrections
msp include makeshift housing in Its standards for
determining capac.lty.
Attorney General of Texas
TOW GREEN
First Assistant Attorney G~nreral
DAVID R. RICRARDS
Executive Assistsnt Attorney Genersl
ROBERTGRAT
Special Assistant Attorney IGeneral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney Genersl
APPROVED:
OPINIONCOMMITTEE ~.
Rick Gilpin. Chairman
Colin Carl
Susan Garrison
JLO Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
p. 1664