Case Information

*1 The Attomry ~General of Texas October 18. 1985 JIM MAlTOX Attorney General nr. 0. L. nccottn opinion So. J%362

supwllw court BulldW Director P. 0. Box 1254a 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 Euntsvillc, Texas 77340 61840. V.T.C.S. l*lacoplqr 512N75Q2ee

Dear ~nr. ,McCotter: 714 JaCkwfI. She 700 rhll0B. lx. 752024fm

You ask seve:xal questions 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 inmate population the Texas 915l5333uu Department of Corrections [hereinafter TDC] reaches 95 percent or tire

of Its bouaing capacity, you must notify the governor of fact and credit 30 days of adminiatratlve good conduct time to certain 1001 Texs0. Suits 700 categories of immtes. Tbe act further provides t+~$f~ Houston. TX. 77002-3111 ra.,2(!_).~ the governor determines certain specified facts to be true. be must 7lY@5888 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 governor notlfien the boaid of the emergency ovetcrovding, the board Lubbock. TX. 79401-3479 umst advance the parole revlav and eligibility date of same ecw747-623a cstegories nf-Lmstfsm~tlgat received administtatrve time under 2(b). .Id. )2(d). If the urgency exists 4309 N. Tenth. Suite B days after tbe Ikovernor’ notification to the board, the board must MCAltm, lx. 7S501.1685 again advance the parole~review and eligibility date of such inmates. 512mS2-4S47 Id. 12(e). emergency -still 120 days exists the governor must order you to zernor’s notification the board, 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 51a2254191 95 percent of cap,mcity: An Equal Opportunity/ AllirmltlV. ActIon EmPlOW In your 1. letter you mention a “pool” of is

identified vhen :sectlon 2(b) lmplewnted and imply the sub- sequent measure:a set out the act apply only 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 ve<s. the +$teria set onto in sectioii 2(b) at tbe tire those wasures are applied.

Mr. 0. L. RcCotter - Page 2 (JIi-362)

If aftar the Sovernor declares that an emer- situation exlste, inmate overcrowding 8-7 population is re&uced to less than 95 percent of capacity, governor shall imediately notify no longer board tzhe emergency situation exista. The effectivemss of the act is critical to you because

Id. 12(g). F have agreed 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 to be released to prevent overcrowding, not to benefit the inmatc!f~. Implementation of section 2(b) sets the After you notify the governor the statutory scheme in motion. situation, he has 30 drys to notify the board an emergency exists. If inmate Ilopulation is hovering near 95 percent, governor can use those 30 days to determine where the population will stabiliee. inmate population eventually settles at less 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, 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 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 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 implemantat~.on of rest of the cycle. After governor declared the exlcrgency be over, you would be required implement 2(b) again the population reached 95 percent. of- capacity.

You also ask whether you could implement section 2(b) again if an emergency existed the~~implementation ~of the steps pre- scribed in sections 2(d: , (e), and (f). The act does not provide *3 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 reduce the populatioo below You are concerned, however, that those measures might not 95 percent. to meet an q nergency because

be adequate of the current rate of admissions. the inmate populti,t,ion 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 the measures it prescribes can be used. As we pointed out previously!, 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 statute would prohibit the measures from being repeated case of an intractable emergency.

The legislative bist~Jry shovs 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 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 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 the first cycle does not relieve the emergency.

You also ask when you must begin 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, days must elapse :implementation of 2(g) before you start cycle again by implementing 2(b).

In addition to yortr questions timing measures set out in the act, you ask:

May the Texas Board ~of Corrections delegate its responsibility to establish ‘capacity’ 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. *4 _ Page T4 .(tii3G2) .,-.. =

nr. 0. L. ncCottcr The act explicitly authorizes the Texas Eoard of Corrections set the standards used to dlctermine the number of prisoners the prison aystam could house:

'Capacity' oeaa:s the greatest density of prison in relation to space available for inmate housing in Texas~. Departant roof Corrections in compliance with standards for prison that population by the Texas Board of Corrections. Ptib:Llc duties that require the exercise

Art. 61840. 51(a)(l). discretion must be perforale:d by the officials designated by ststute and cannot be delegated 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 A state kloard can, however, delegate ministerial ref'd n.r.e.).

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 meaning of the provision In the act states that temporary housing may not be considered for purposes Art. 61840, 51(b). You point out of the calculations of capacity. the overcrowding stipulation in Ruie, which contains a general

prohibition against '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 1983, obviously did norm-incorporate the subsequent Ruiz stipulation 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:

SENATOR X: We assume 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 schools sometimes dormitory YOU see st purposes, rathtn: tents, do you believe we would have to exclude those then in determining whether we were! at the 94 percent or 95 percent?

Mr. 0. L. M&otter - Page 5 (J’H-362)

SRNATOR Y: I don’t believe so. We might ought make a little l~ntent on that. SENATOR X: I’:11 assist in tbat regard. What you’re talking Ilbout here on temporary housing, basically, is the [then being used on prison tents grounds] and three-celling.

SENATOR Y: Absolutely. S.B. No. 727, Acts 68th Leg.. Senate Committee on State Affairs (March 9. 1983).

The legislstlve history makes clear 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 Gde the use of roviq; Inmate construction crews or the use of See art. 61840, 12(h) makeshift structures in exigent circumstances. the act does not apply in case ofdisaster). (providing Accor- we think the ac’: would permit inclusion of makeshift dinsly, structures in calculatfone of capacity In some out-of-the-ordinary and short-lived situations. Of course, merely reaching or exceeding percent of capacity is not such sn exigent circumstance. One point of the set 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 Rufr eettlement itself LOB Incorporated 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 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, director tt#e Texss Department of Corrections should award a~$dnistrstive 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 Prison Hansgenent Act again first cycle fails to reduce prison population below 95 percent of capacity.

tlr. 0. L. McCotter - Psge 6 (JM-362)

The Board of Corrections may delegate 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 determining capac.lty.

Attorney General of Texas TOW GREEN

First Assistant Attorney G~nreral

DAVID R. RICRARDS

Executive Assistsnt Attorney Genersl

ROBERT GRAT

Special Assistant Attorney IGeneral

RICK GILPIN

Chairman, Opinion Committee

Prepared by Sarah Woelk

Assistant Attorney Genersl

APPROVED:

OPINION COMMITTEE ~.

Rick Gilpin. Chairman

Colin Carl

Susan Garrison

JLO Moellinger

Jennifer Riggs

Nancy Sutton

Sarah Woelk