Judges: JOHN L. HILL, Attorney General of Texas
Filed Date: 5/12/1978
Status: Precedential
Modified Date: 7/6/2016
Honorable Jerome Chapman Texas Commissioner State Department of Human Resources Austin, Texas
Honorable Henry Wade District Attorney Sixth Floor Records Building Dallas, Texas 75202
Re: Authority of the Department of Human Resources to license or certify certain juvenile detention facilities under article 695a-3, V.T.C.S.
Gentlemen:
Mr. Chapman inquires whether the Department of Human Resources has authority under the Child Care Licensing Act of 1975, V.T.C.S. art. 695a-3, to license correctional facilities operated by the Texas Youth Council and county juvenile detention facilities operated pursuant to Title 3 of the Family Code. He asks whether article
The purpose of the Child Care Licensing Act is to establish statewide minimum standards for the safety of children in child care facilities and to regulate the conditions of such facilities through a licensing program administered by a division within the Department. V.T.C.S. art. 695a-3, §§ 1, 3. `Child care facility' is defined as
a facility providing care, training, education, custody, treatment, or supervision for a child who is not related by blood, marriage, or adoption to the owner or operator of the facility, for all or part of the 24-hour day . . . .
Section 2(3). `Child caring institution' is defined as
a child care facility which provides care for more than 12 children for 24 hours a day, including facilities known as children's homes, halfway houses, residential treatment camps, emergency shelters, and training or correctional schools for children.
Section 2(6). These definitions are certainly broad enough to include juvenile detention facilities in the coverage of the Act, provided that no other provision of law requires their exclusion. Facilities operated by the State are exempt from the licensing requirement, but they must be certified as complying with applicable provisions of the Act and standards, rules, and regulations promulgated thereunder. Sections 4(b)(1), 14. Facilities operated by political subdivisions are not exempted from licensing. See section 2(15); compare Attorney General Opinion H-104 (1973).
Title 3 of the Family Code gives the juvenile court exclusive original jurisdiction over proceedings relating to delinquent children and children in need of supervision. Family Code §§
(c) In each county, the judge of the juvenile court and the members of the juvenile board, if there is one, shall personally inspect the detention facilities at least annually and shall certify in writing to the authorities responsible for operating and giving financial support to the facilities that they are suitable for the detention of children in accordance with:
(1) the requirements of Subsection (a) of this section [relating to separation of juvenile and adult offenders];
(2) the requirements of Article
5115 , Revised Civil Statutes of Texas, 1925, as amended, defining `safe and suitable jails,' if the detention facility is a county jail; and(3) recognized professional standards for the detention of children.
Section 51.12 (bracketed material added). Children may not be placed in a facility unless it has been certified as suitable for detention.
In our opinion, section 51.12 provides an independent certification scheme for the facilities it covers, with its own inspection procedures and standards. Cf. Commissioners Court of Lubbock County v. Martin,
We have found no evidence in the legislative history of an intent to require dual certification of county juvenile detention facilities maintained pursuant to article 51.12. The fiscal notes, which estimated the number of institutions that article 695a-3 would add to the Department's work load, did not mention such facilities, even though every county is directed to provide them. In view of our conclusion that article 695a-3 does not authorize the Department to license the facilities certified by the juvenile courts under section 51.12, we need not address your question about the separation of powers clause.
If the juvenile court judge determines that a child has engaged in delinquent conduct or conduct indicating a need for supervision, he must hold a disposition hearing. Family Code §§
The Dallas County Boys' Home, about which Mr. Wade inquires, was established under the authority of article 5138, V.T.C.S., permitting certain cities and counties acting jointly to establish and operate homes for dependent and delinquent youth. A board of managers appointed by the commissioners court has the general management and control of the home and its inmates. V.T.C.S. art. 5138b, § 1. We are informed that all of the Home's residents have been determined by juvenile courts to be dependent and neglected, delinquent, or in need of supervision. See Family Code §§ 11.03, 14.01, 14.02(b), 51.03. It is not used as a temporary holding facility prior to adjudications by the juvenile court, and the Dallas County Juvenile Board has not exercised any control over it. The Boys' Home is thus not a detention facility operated pursuant to article
The Texas Youth Council administers the State's correctional facilities for delinquent children. V.T.C.S. art. 5143d. No separate, conflicting inspection and certification system is provided for TYC schools; nor do we find any other statute which might operate to exempt them from certification under article 695a-3. According to testimony before legislative committees, one purpose of article 695a-3 was to remove the exemption formerly applicable to public facilities. See Attorney General Opinions H-423 (1974), H-104 (1973). The fiscal notes stated that the bill would add 40 state-operated facilities to the Department's workload. In 1977, the Legislature considered and rejected an amendment to the Child Care Licensing Act which would have exempted TYC correctional facilities from its provisions. S.B. 396, 65th Leg., R.S. In our opinion, institutions operated by the Texas Youth Council are subject to certification under article 695a-3. Article 2, section 1 of the Constitution does not prevent their certification by the Department, since both agencies are in the executive branch. See generally Attorney General Opinion H-6 (1973).
Very truly yours,
John L. Hill Attorney General of Texas
APPROVED:
David M. Kendall First Assistant
C. Robert Heath Chairman Opinion Committee