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1987 Texas Attorney General Reports and Opinions 2766 (1987)

handle is hein.sag/sagtx0030 and id is 1 raw text is: THE ATTORNEY GENERAL OF TEXAS January 7, 1987 JUx MATTOX ATTORNEY GENERAL Mr. Charles E. Walker, Jr. Opinion No. JM-615 General Counsel. Board of Pardons and Paroles Re: Authority of the Board of P. 0. Box 13401, Capitol Station Pardons and Paroles to con- Austin, Texas 78711 tract with counties for having prisoners incarcerated under the authority of warrants issued by the board Dear Mr. Walker: The Texas Board of Pardons and Paroles [hereinafter the Board] is considering contracting with a county to provide for the incarceration of prisoners arrested and held pursuant to board-issued warrants. You ask primarily whether the Board holds the authority to enter into such a contract. Your question involves two related issues: whether the Board may pay the county to incarcerate the Board's prisoners and whether the county may refuse to jail the Board's prisoners if the Board refuses to pay for their maintenance. No person or agency holds the authority to make a contract which is binding on the state, except when authorized to do so by the Texas Constitution or statutes. Tex. Const. art. III, §§44, 49; State v. Ragland Clinic-Hospital, 159 S.W.2d 105, 106 (Tex. 1942). Thus, the power of the Board to enter into the contemplated contract depends upon the legislation which created and empowered the Board. See State v. Ragland Clinic-Hospital, 159 S.W.2d at 106. Article IV, section 11, of the Texas Constitution initially created the Board of Pardons and Paroles. This provision grants the governor the power, conditioned upon the Board's recommendation, to grant reprieves and commutations of punishment and pardons. In 1983, article IV, section 11, was amended by vote of the people to make the Board of Pardons and Paroles a statutory rather than a constitutional agency. To parallel the passage of this amendment, the legislature amended sections 12(d) and 21(a) of article 42.12 of the Texas Code of Criminal Procedure to give the board the sole authority to revoke paroles and issue warrants for the return of a paroled prisoner. Acts 1983, 68th Leg., ch. 232, at 974. The Code of Criminal Procedure emphasizes that the Board of Pardons and Paroles is the agency of state with exclusive authority to grant paroles and gives the Board p. 2766