City council’s authority to prohibit the use of

ATTORNEY GENERAL OF TEXAS GREG ABBOTT March 152004 The Honorable Joe Warner Bell Trinity County Attorney P.O. Box 979 Groveton, Texas 75 845 Opinion No. GA-O 166 Re: City council’s authority to prohibit the use of the municipal jail as a holding facility for persons arrested by deputy constables for violations of state law (RQ-01 1%GA) Dear Mr. Bell: You ask whether a city council of a Type A general-law municipality may prohibit the use of a municipal jail as a temporary holding facility for (1) a person arrested by a deputy constable for violating state law while the person waits to appear before a magistrate, or (2) a person arrested on a warrant for penal code offenses while the person arranges bond or waits to be transported to a county facility. ’ You acknowledge that the answer to your question could be controlled by an interlocal agreement between a municipality and another jurisdiction. See Request Letter, supra note 1, at 2; see also TEX. GOV’T CODE ANN. $9 791.001-.032 (Vernon 1994 & Supp. 2004) (concerning interlocal cooperation contracts). You contend that absent an interlocal agreement the city council may deny use of the municipal jail as a temporary holding facility for persons arrested by deputy constables for violations of state law. See Request Letter, supra note 1, at 2. You have clarified that your request concerns Trinity, Texas, a Type A general-law municipality.2 Local Government Code section 341.902 authorizes the governing body of a Type A municipality to build jails and promulgate necessary rules: (a) The governing body of a Type A general-law municipality may build and establish one or more jails inside or outside the municipality. ‘See Letter from Honorable Joe Warner Bell, Trinity County Attorney, to Opinions Division, Office of Attorney General (Oct. 3, 2003) (on file with Opinion Committee) [hereinafter Request Letter]; Telephone Conversation with Honorable Joe Warner Bell (Jan. 28,2004) [hereinafter Bell Conversation]. *Bell Conversation, supra note 1. The Honorable Joe Warner Bell - Page 2 (GA-0166) (b) The governing body may adopt necessary rules and appoint necessary keepers or assistants for the jails. (c) Vagrants and disorderly persons may be confined in a jail on commitment by a municipal court judge. A person who fails or refuses to pay the fine or costs imposed for an offense may be confined in a jail. TEX. Lot. GOV’T CODE ANN. 8 341.902 (Vernon Supp. 2004). Subsection (c) authorizes using a municipal jail to confine vagrants, disorderly persons, and persons failing or refusing to pay their fines and costs, which are uses designed to address primarily local or municipal concerns. See id. 5 341.902( c ; see also TEX. GOV’T CODE ANN. 4 21.002(c) (Vernon 2004) (authorizing municipal ) and justice courts to punish contempt by confinement in jail). However, the list of permissible jail uses in section 341.902(c) does not purport to be exclusive. See TEX. LOC. GOV’T CODE ANN. 5 341.902(c) (V emon Supp. 2004). Subsection (b)‘s broad grant of rulemaking authority would allow the city council to promulgate “necessary” rules about municipal jail use, subject to any overriding requirements elsewhere in the law. See id. 8 341.902(b). Consequently, we next consider whether the Code of Criminal Procedure, which specifies the duties of arresting officers, magistrates, and other officials upon a person’s arrest, requires the municipal jail to be available for temporary detention under the circumstances you describe. A constable or deputy constable is a peace officer with the authority and responsibility that office entails. See TEX. CODE CRIM. PROC. ANN. art. 2.12(2) (Vernon Supp. 2004); Wilson v. State, 36 S.W.2d 733,734 (Tex. Crim. App. 1931). After arresting a person, a deputy constable or other lawful authority “shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested,” or, as necessary, to the magistrate of a bordering county. TEX. CODE GRIM. PROC. ANN. art. 15.17(a) (Vernon Supp. 2004). Under the code, magistrates include certain state officials, county officials, and municipal officials such as mayors, recorders, and municipal court judges. See id. art. 2.09. When an arrested person is brought before a magistrate, the magistrate must perform a number of duties set out in article 15.17, such as providing constitutional warnings and admitting the person to bail as allowed. See id. art. 15.17(a)-(b). The code does not specifically address detention while an arrested person waits to appear before a magistrate. Article 45 .O 15 of the code provides generally that “[wlhenever, by the provisions of this title, the peace officer is authorized to retain a defendant in custody, the peace officer may place the defendant in jail in accordance with this code or other law.” Id. art. 45.015. Article 45.015 contemplates temporary detentions in jail, but does not attempt to specify the governmental unit or units that must take custody of an arrested person during such detentions. Neither the courts nor this office has addressed whether a municipal jail must be available as a holding facility for persons arrested for state law violations. In the past this office has considered the converse of your question, whether a county has a duty under the code to accept persons arrested for violating municipal ordinances or persons arrested by city police officers for The Honorable Joe Warner Bell - Page 3 (GA-0166) violating state law. Article 2.18 of the code provides that “[wlhen a prisoner is committed to jail by warrant from a magistrate or court, he shall be placed in jail by the sheriff.” Id. art. 2.18 (Vernon 1977). Based on article 2.18, this office has determined that a sheriff could not refuse to accept persons arrested by city police for state law violations and ordered committed to jail by a magistrate. See Tex. Att’y Gen. Op. No. DM-3 13 (1995) at 1, 3; see also Tex. Att’y Gen. Op. Nos. JC-03 12 (2000) at 2 (a sheriff has the responsibility for a person arrested by a law enforcement agency other than the sheriff’s department upon the issuance by a magistrate of a commitment order directing the sheriff to “‘receive and place in jail the person so committed”‘) (quoting TEX. CODE CRIM. PROC. ANN. art. 16.20 (Vernon 1977)), JM-615 (1987) at 3-4 (county must accept custody of Board of Pardons and Paroles’ prisoners pending a revocation hearing). This office has concluded, however, that article 2.18 does not require a sheriff to take custody of persons arrested for violating purely municipal law. See Tex. Att’y Gen. Op. Nos. JM-1009 (1989) at 2, MW-52 (1979) at 2-3. The distinction rests in large measure on the lack of “a plain manifestation of the legislature’s intent that a city may impose such a duty [to confine municipal law violators] on the sheriff and the county.” Tex. Att’y Gen. Op. Nos. MW-52 (1979) at 2 (citing Ex parte Ernest, 136 S.W.2d 595, 597 (Tex. Crim. App. 1939)); see also JM-1009 (1989) at 2. In Attorney General Opinion JM-15 1, this office determined that a sheriff may but is not required to take custody of a person arrested by city police for state law violations prior to appearance before a magistrate. See Tex. Att’y Gen. Op. No. JM-151 (1984) at 2. The opinion observed that no statute requires a sheriff to take custody of state law violators arrested by municipal police officers until, under article 2.18, the magistrate has issued a commitment order. See id. Likewise, no statute requires municipal authorities to confine in municipal jail a person arrested by a deputy constable for violations of state law. The legislature has devoted considerable attention to the county sheriffs responsibilities and county confinement, and has provided for confinement in county j ail of federal prisoners and prisoners of another county. See generaZZy TEX. LOC. GOV’T CODE ANN. 85 351.001-.015 (Vernon 1999 & Supp. 2004) (concerning county jail facilities), .041(a) (Vernon 1999) (sheriff is keeper of county jail), .043-.044 (federal and out-of- county prisoners); TEX. CODE CRIM. PROC. ANN. art. 2.18 (Vernon 1977) (custody ofprisoners). But no statute requires municipal authorities to confine in municipal jail a person arrested by a deputy constable for violations of state law while waiting to appear before a magistrate, to arrange bond, or to be transported to a county facility. Absent a clear manifestation of legislative intent in this regard, we believe that no court would infer such a duty. Consequently, we conclude that a city council, as the governing body under Local Government Code section 341.902, may promulgate rules prohibiting use of the municipal jail as a temporary holding facility for persons arrested by deputy constables for violations of state law. See TEX. LOC. GOV’T CODE ANN. 9 341.902 (Vernon Supp. 2004). The Honorable Joe Warner Bell - Page 4 (GA-0166) SUMMARY A city council may prohibit the use of the municipal jail as a holding facility for persons arrested by deputy constables for state law violations while such persons wait to appear before a magistrate, to post bond, or to be transported to a county facility. BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee William A. Hill Assistant Attorney General, Opinion Committee