This memorandum responds to your request for our opinion as to whether an individual
                  is entitled to Title XVI benefits when he is residing at a community-based facility
                  pursuant to the mandatory supervision provisions of the Texas Adult Parole and Mandatory
                  Supervision Law. See Tex. Crim. Proc. Code Ann. art. 42.18 (Vernon Supp. 1995). The issue is whether such
                  an individual is an "inmate in a public institution" within the meaning of the Social
                  Security Act and, therefore, ineligible for Supplemental Security Income (SSI). See §1611(e)(1)(A) of the Social Security Act (the Act); 42 U.S.C. §1382(e)(1)(A). In
                  our opinion, an individual residing in a group home operated under contract with the
                  State of Texas, where the State oversees the individual's residency and pays for his
                  care, would not be entitled to SSI benefits. Our reasoning and suggested factual guidelines
                  follow.
               
               According to the information you provided us, the State of Texas is paying for an
                  SSI recipient's residency at the Esmor Fort Worth Inc. facility while he is on mandatory
                  supervision. As a condition of parole or mandatory supervision, individuals may be
                  required to serve a period in a community-based facility, such as the Esmor facility.
                  Tex. Crim. Proc. Code Ann. art. 42.18, §25(a) (Vernon Supp. 1995).
               
               The Social Security Act provides, with exceptions not here relevant, that no person
                  shall be eligible for SSI payments for any month throughout which such person is an
                  "inmate in a public institution." §1611(e)(1)(A) of the Act; 42 U.S.C. §1382(e)(1)(A).
                  The Social Security Regulations provide the framework for the public institution exception.
                  See 20 C.F.R. §416.200-211. Factors to consider when determining whether a facility is
                  a "public institution" are 1) whether the freedom of the residents to come and go
                  as they choose is restricted, 2) whether it provides food and shelter for the residents,
                  3) whether some treatment or services are provided, and 4) whether it is operated
                  or controlled by the Federal government, a State, or a political subdivision of a
                  State. 20 C.F.R. §416.201.
               
               Although complete information is not available to us, it appears that the Esmor facility
                  could possibly meet all four factors. Regarding the first factor, a resident's ability
                  to come and go as he chooses is most likely restricted. Prisoners on mandatory supervision
                  remain in the legal custody of the State and are subject to the supervision and control
                  of the pardons and paroles division. Tex. Code Crim. Proc. Ann. art. 42.18, §§2(2),
                  8(c) (Vernon Supp. 1995).
               
               Second, community-based facilities are authorized to provide food and shelter. Id. at §§8(c), 25(e). Although the pardons and paroles division may charge a reasonable
                  fee to a person housed in a facility for the cost of housing, board, and administrative
                  costs, that would not affect a residents eligibility for SSI. See Id. at §25(g); 20 C.F.R. §416.201.
               
               Third, some services should be provided because the purpose of community-based facilities
                  is to provide housing, supervision, counseling, personal, social, and work training,
                  and other programs. Tex. Code Crim. Proc. Ann. art. 42.18, §25(b) (Vernon Supp. 1995).
               
               The fourth factor appears to be the most difficult to meet. The Esmor facility is
                  not owned by the State. The pardons and paroles division may enter into a contract
                  with a public or private vendor for the operation or management of community-based
                  facilities. Id. at §25(g). Therefore, the issue is whether the facility is sufficiently controlled
                  by the State. See 20 C.F.R. §416.201. We believe the Esmor facility could be sufficiently controlled
                  by the State to take on a "public" character that would justify the denial of SSI
                  benefits to its residents. Looking at the intent of Congress, it is clear that SSI
                  benefits were not to be paid to "individuals in a penal institution." 1972 U.S.C.C.A.N.
                  5136. Considering Congress's legislative intent, we believe the SSA regulations would
                  support the denial of SSI benefits in this situation. While publicly operated community
                  residences that serve no more than sixteen residents are exempted from the ban on
                  giving SSI benefits to the publicly institutionalized, the Regulations specifically
                  decline to identify publicly operated community residences as "[a] jail or other facility
                  where the personal freedom of anyone who lives there is restricted because that person
                  is a prisoner, is being held under court order, or is being held until charges against
                  that person are disposed of..." §1611(e)(1)(C) of the Act; 20 C.F.R. §§416.211(c),
                  211(C)(5)(iii)(emphasis added). The Esmor facility could be considered such an "other
                  facility." As a community-based facility, the Esmor facility is subject to the same
                  provisions of Texas law as if the housing were provided directly by the pardons and
                  paroles division, and, thus, it could be considered controlled by the State. See Tex. Code Crim. Proc. Ann. art. 42.18, §25(g) (Vernon Supp. 1995); 20 C.F.R. §416.201.
                  A prisoner on mandatory supervision remains under the supervision and control of the
                  pardons and paroles division. Tex. Code Crim. Proc. Ann. art. 42.18, §2(2)(emphasis
                  added). Lastly, according to the information provided by your office, the State is
                  paying for the individual's care while he resides at the Esmor facility, which further
                  indicates an element of State control. See 20 C.F.R. §416.201. Thus, it appears that the Esmor facility could be under sufficient
                  State administrative control to be considered a "public institution" that would justify
                  the suspension of SSI benefits to an individual residing therein. However, we recommend
                  that your office make a factual determination as to the degree of control the Texas
                  Department of Criminal Justice has over the Esmor facility, paying particular attention
                  to the factors found at 20 C.F.R. §416.201.