Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 22, 2009
Mr. Adan Munoz, Jr. Opinion No. GA-0692
Executive Director
Texas Commission on Jail Standards Re: Observation ofcounty jail inmates while they are
Post Office Box 12985 confined in courthouse holding cells (RQ-0722-GA)
Austin, Texas 78711
Dear Mr. Munoz:
On behalfofthe Texas Commission on Jail Standards (the "Commission"), you ask whether
a bailiff may supervise county jail inmates while they are held in courthouse holding cells or,
assuming that the bailiff is not a jailer, whether a sheriff must provide a licensed jailer to supervise
a county jail inmate being held in a courthouse holding cell. I You also ask "[a]t what point during
an inmate's time at a courthouse ... the judge, and thus the bailiff, relinquish[es] supervisory
authority to the sheriff and Minimum Jail Standards[.]" Request Letter at 1. Finally, you ask
whether a form signed by a bailiff "upon taking control of an inmate" that accepts "responsibility
for the inmate's custody, health, and general welfare" sufficiently authorizes a bailiff who does not
have ajailer's license "to supervise a courthouse holding cell[.]" Id.
You indicate that no counties require bailiffs to be licensedjailers. 2 See id You suggest that
observation of inmates in courthouse holding cells by bailiffs who are not licensed jailers may be
inconsistent with minimum jail standards adopted by the Commission under Government Code
section 511.009. See id.
Government Code section 511.009 expressly directs the Commission to adopt reasonable
minimum standards relating to, among other things, the "custody, care, and treatment of prisoners"
and the "number of jail supervisory personnel." TEX. GOV'T CODE ANN. § 511.009(a)(2)-(3)
(Vernon Supp. 2008). The Commission also has express authority to enforce its rules. See id.
§ 511.014(a) (Vernon 2004). Moreover, as Attorney General Opinion MW-559 determines,
Commission-adopted minimum jail standards apply to the observation of an inmate confined in a
lSee Request Letter, available at www.texasattorneygeneral.gov.
2We assume you ask about bailiffs at the trial court level. Cf TEX. GOV'TCODEANN. § 53.091(a), (c) (Vernon
2005) (authorizing Texas appellate courts to employ individuals "to protect the court"; the bailiffs must be licensed as
peace officers).
Mr. Adan Munoz, Jr. - Page 2 (GA-0692)
courthouse holding cell. See Tex. Att'y Gen. Op. No. MW-559 (1982) at 2; see also Tex. Att'y Gen.
Op. No. DM-119 (1992) at 3 (stating that a facility housing county inmates other than a ''traditional
county jail" must comply only "with rules promulgated by the [C]ommission"). Accordingly, the
Commission is authorized to regulate the observation ofinmates confined in courthouse holding cells.
You cite two minimum jail standards as relevant. First,title 37, section 265.3 of the Texas
Administrative Code requires that "[i]nmates confined in a holding cell ... be observed by facility
personnel at intervals not to exceed 30 minutes." 37 TEX. ADMIN. CODE § 265.3 (2008) (Tex.
Comm'n on Jail Standards, Observation During Holding). The regulations define the tenn "holding
cell" as "[a] cell designed for the temporary holding of inmates." fd. § 253.1(13) (Definitions).
Second, title 37, section 275.1 requires hourly observation ofinmates by "corrections officers" at a
"facility":
Facilities shall have an established procedure for visual, face-to-face
observation of all inmates by corrections officers at least once every
hour. Observation shall be perfonned at least every 30 minutes in
areas where inmates known to be assaultive, potentially suicidal,
mentally ill, or who have demonstrated bizarre behavior are confined.
fd. § 275.1· (Regular Observation by Corrections Officers).
The Commission has not defined the tenns "facility," "facility personnel" or "corrections
officer" in its regulations, and we decline to provide definitions to words or phrases that the
Commission, as the enacting authority, has declined to define. See id. § 253.1 (Definitions); cf id.
§ 253.1(11) (defining "existing facility" as a typeoffacility). Absent these definitions, we are unable
to state whether the current practice is contrary to any controlling statutory or regulatory authority.
The long-standing policy ofthis office has been to defer to the administrative agency charged
with the administration and enforcement of a statute to interpret its own rules in the first instance.
Tex. Att'y Gen. Op. Nos. JC-0449 (2002), M-609-A (1970). As the agency charged with
"adopt[ing] reasonable rules and procedures establishing minimum standards for the custody, care
and treatment ofprisoners," the Commission must detennine, in the first instance, whether bailiffs
have the authority to supervise inmates being held in courthouse holding cells. TEX. GOV'T CODE
ANN. § 511.009(a)(2)-(3) (VemonSupp. 2008). Because the answers to your remaining questions
will depend on the Commission's detennination as tothe first question and/or present questions of
fact, we decline to answer those questions.
Mr. Adan Munoz, Jr. - Page 3 (GA-0692)
SUMMARY
As the agency charged with adopting reasonable rules and
procedures establishing minimum standards for the custody, care and
treatment ofprisoners, the Texas Commission on Jail Standards must
detennine, in the first instance, whether bailiffs have the authority to
supervise inmates being held in courthouse holding cells.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee