Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
OF TEXAS
Honorable William P. Clements, Jr. Opinion No. JM-960
Governor
P. 0. Box 12420 Re: Whether article 5115d,
Austin, Texas 78711 V.T.C.S., prohibits the
use of the former Bexar
Honorable William P. Hobby County Jail as a priva-
Lieutenant Governor tely operated jail for
P. 0. Box 12128 housing parole violators
Austin, Texas 78711 (RQ-1550)
Honorable Gibson D. "Gib" Lewis
Speaker of the House
P. 0. BOX 2910
Austin, Texas 78769
Gentlemen:
you ask a question arising out of a proposal to reduce
overcrowding in county jails and the Department of Correc-
tions. It is proposed that the Commissioners Court of Bexar
County contract with a private vendor who will renovate the
old county jail building and then contract with the state to
operate the facility to hold parole violators. See V.T.C.S.
arts. 5115d, 6166g-2. A question has arisen concerning
whether subsection (h) of article 5115d, V.T.C.S., prohibits
the use of the former Bexar County jail building for this
purpose. We address the narrow question you raise and do
not address any other legal issues which may arise in con-
nection with this proposal.
Article 5115d, V.T.C.S., authorizes the commissioners
court of a county to contract .with a private vendor "to
provide for the financing, design, construction, leasing,
operation, purchase, maintenance, or management of a jail,
detention center, work camp, or related facility." V.T.C.S.
art. 5115d(c). The statute includes the following
prohibition:
(h) The commissioners court of a county
mav not convert a .facilitv into a correc-
tional facilitv ouerated bv a nrivate vendor
if, before the effective date of this
article, the facility is:
p. 4873
Honorable William P. Clements, Jr.
Honorable William P. Hobby
Honorable Gibson D. "Gib" Lewis
Page 2 (JM-960)
(1) operated as a correctional facility
by the county; or
(2) being constructed by the county for
use as a correctional. facility. (Emphasis
added.)
V.T.C.S. art. 5115d(h).
You inform us by attachment to your request letter that
the building in question housed the Bexar County Jail
before April 14, 1987, the effective date of article 5115d,
V.T.C.S., and for at least twelve months thereafter. See
Acts 1987, 70th Deg., ch. 18, § 6, at 51, 52. The jail
operations have been moved to a new facility, and the old
jail facility is presently vacant, according to information
submitted with your request letter. The old jail facility
was directed to be closed a number of months ago by the
Texas Commission on Jail Standards.
The answer to your question depends on the meaning of
the prohibition in article 5115d(h), V.T.C.S., with par-
ticular attention to the language we have underlined in the
quotation above. Subsection (h) of article 5115d, V.T.C.S.,
excepts certain facilities from the exercise of contractual
authority granted the commissioners court by subsection (c)
of that statute. Exceptions to statutes are strictly con-
strued. See, e.cf., Gulf States Utilities Co. v. State, 46
S.W.2d 1018 (Tex. Civ. App. - Austin 1932, writ ref'd).
We read the underlined language as prohibiting the
commissioners court from converting a countv-onerated
correctional facility into a correctional facility operated
by a private vendor, if the county-operated facility was in
operation or under construction by the county as of the
effective date of article 5115d(h). The word l'facility't is
used throughout article 5115d, V.T.C.S.., to refer to a
correctional facility,' and we believe it also has this
meaning in subsection (h) of this statute. See V.T.C.S.
art. 5115d(c), (a), (e) Cl), (9).
The dictionary includes the following definitions of
convert:
. . . to change or turn from one state to
another
-.
. . . to change or turn from one use, pur-
pose, or function to another.
p. 4874
Honorable William P. Clements, Jr.
Honorable William P. Hobby
Honorable Gibson D. "Gib" Lewis
Page 3 m-960)
Webster's New International Dictionary 499 (3d ed. 1961).
Implicit in the word %onvert" used in subsection (h) is the
idea that the property is a county-operated correctional
facility at the time the commissioners court attempts to
convert it into a privately operated facility. Thus, the
application of article 5115d(h), V.T.C.S., to the contract
proposal you describe involves a threshhold inquiry: Is the
property in question a county-operated correctional facility
at the present time?
The former Bexar County jail building is not now a
county-operated correctional facility. Thus, if the commis-
sioners court entered into the proposed contract, it would
not convert a county-operated correctional facility into
a privately-operated correctional facility but instead
"convert'* an abandoned building into a correctional facility
operated.by a private vendor. The commissioners would not
be barred by subsection (h) of article 5115d, V.T.C.S., from
entering .into the contract.
Our construction of subsection (h) is consistent with
the legislative intent as documented by floor debates on the
bill which enacted article 5115d(h), V.T.C.S. Senate Bill
No. 251 of the 70th Legislature, Acts 1987, 70th Leg., ch.
18, § 1, at 47, enacted article 6166g-2, V.T.C.S., which
authorizes the Texas Board of Corrections to contract with
private vendors or with the commissioners courts of counties
for the financing, construction, operation, maintenance, or
management of secure correctional facilities. The same bill
adopted the amendments to article 5115d, V.T.C.S., which
allow the commissioners court to enter into such contracts
for local correctional facilities.
As introduced, Senate Bill No. 251 did not address the
conversion of public correctional facilities into private
correctional facilities. During the legislative process,
subsection (h) was added to article 5115d, V.T.C.S., and a
similar provision was added to article 6166g-2, V.T.C.S.
Senator Ray Farabee, the author of Senate Bill No. 251,
stated in floor debate relevant to Department of Corrections
facilities that several provisions had been put in to meet
the concerns of public employee organizations, specifically
that the legislation could not be used to privatize existing
prison facilities. Representative Clint Hackney, the House
sponsor, pointed out in House floor debate that no public
employees' jobs would be interfered with. His remarks also
referred to the Department of Corrections, but presumably
the same policy of protecting public employees from loss of
jobs through privatization also underlies subsection (h) of
p. 4875
Honorable William P. Clements, Jr.
Honorable William P. Hobby
Honorable Gibson D. "GibO' Lewis
Page 4 (JM-960)
article 5115d, V.T.C.S. The proposed contract to have a
private vendor renovate the former Bexar County jail
building and operate a facility for parole violators there
should not interfere with the jobs of county employees
engaged in operating the county jail.
We therefore conclude that the legislature did not
intend subsection (h) to apply to properties that the
commissioners court formerly operated as correctional
facilities if the court, through good faith action, has
terminated their use for that purpose. Section (h) of
article 5115d does not prohibit the commissioners court from
entering into the proposed contract regarding the former
Bexar County jail facility. We emphasize that our
conclusion is based upon the good faith clearly evident
here. If the purpose of the change of use were a subterfuge
to avoid the operation of article 5115d(c), our answer might
well be different.
SUMMARY
Subsection (h) of article 5115d, V.T.C.S.,
does not prohibit the use of the former Bexar
County jail building as a privately operated
correctional facility for housing parole
violators.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCRFARY
Executive Assistants Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 4876