Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERALOFTEXAS
GREG ABBOTT
October 2 1,2004
The Honorable Rob Baiamonte Opinion No. GA-0261
Goliad County Attorney
Post Office Box 24 Re: Whether Texas Code of Criminal Procedure
Gohad. Texas 17963 article 43.10 authorizes a county to use county
inmate labor at events that are a joint venture
between the county and a nonprofit organization
(RQ-0217-GA)
Dear Mr. Baiamonte:
You ask whether Texas Code of Criminal Procedure article 43.10 authorizes a county to use
county inmate labor at events that are a joint venture between the county and a nonprofit
organization.’
Article 43.10 of the Code of Criminal Procedure (the “Code”) outlines a system by which
certain convicted persons in a county, who are either confined to,a county jail or unable to pay an
assessed tine, “shall be required to work in the county jail industries program or shall be required
to do manual labor.” See TEX. CODECFSM.PROC.ANN. art. 43.10 (Vernon Supp. 2004-05). Further,
the Code provides that “[tlhey shall be put to labor upon public works and maintenance projects,
including public works and maintenance projects for a political subdivision located in whole or in
part in the county.” Id. art. 43.10(4).
By way of background, you note that Goliad County inmates have been used to help set up
tables and chairs, stages and lighting and provide clean-up services for nonprofit organizations that
hold limdraisers on Goliad County property. See Request Letter, supra note 1, at 1. You cite as an
example the 4-H county fair for which county inmate labor has been used to set up and tear down
fair facilities. See id. You also note that the county has several nonprofit organizations that hold
fundraisers throughout the year, some of which are to award scholarships to Gohad County youth.
See id. The Goliad County Commissioners Court wants to enter into agreements with these various
nonprofit agencies for future fundraisers and use county inmate labor to help with the events. See
id. Thus, you ask “if the county enters into a joint venture with a nonprofit, is that sufficient enough
to allow county inmate labor to be used for setting up and tearing down the event under. article
43.10(4)“? Id. at 2.
‘See Letter from Honorable Rob Baiamonte, Goliad County Attorney, to Honorable Greg Abbott, Texas
Attorney General (Apr. 29, 2004) (on tile with the Opinion Committee, also available af http://www.oag.state.~.us)
[hereinakr Request Letter].
The Honorable Rob Baiamonte - Page 2 (GA-0261)
You contend that the county’s participation in a joint venture with a nonprofit agency
qualities any subsequent events governed by these joint ventures as “public works” ofthe county and
therefore the county under article 43.1 O(4) is expressly authorized to use county inmate labor under
these circumstances? Although this office has stated that “county prisoner labor may be only used
oncountyprojects,“Tex. Att’y Gen. Gp. No. H-1038 (1977) at 1,youconcludethat these fundraisers
would not be a private operation and so such limitations would not apply, see Baiamonte Brief,
supra note 2.
The term “public works” is a term of art that is synonymous with “public improvements.”
See, .e.g., Overstreet v. Houston County, 365 S.W.2d 409 (Tex. Civ. App.-Houston 1962, writ ref d
n.r.e.) (holding that an air conditioning system and window units installed in a county courthouse
were public works, “or improvements of a fixed nature”); Tex. Att’y Gen. Op. No. O-677 (1939)
at 4. Furthermore, in Attorney General Opinion O-677, this office found that the use of inmates on
janitorial and maintenance work at a county courthouse and jail did not constitute labor on public
works. See Tex. Att’y Gen. Op. No. O-677 (1939) at 4 (construing 1925 Code of Criminal
Procedure, article 794(5), the precursor to article 43.10(4)) (“We do not believe that such casual
labors. come within the purview of the statutes as labor ‘upon any public works ofthe county.“‘).
Your use of “public works” to mean any county project does not comport with article 43.10(4)‘s use
of the term. Consequently, we conclude that there is no basis to sustain the commissioners court’s
proposal on the theory that these joint ventures are public works.
In addition to authorizing county inmate labor on public works, article 43.10(4) now
authorizes county inmate labor on public maintenance projects. See TEX. CODEGRIM.PROC.ANN.
art. 43.10(4) (Vernon Supp. 2004-05). Again the Code fails to define the term “maintenance” and
so we must construe it according to the rules of grammar and common usage, unless it has acquired
a technical meaning. See TEX. GOV’T CODEANN. 8 311.011 (a)-(b) (Vernon 1998). We look first
to Texas judicial decisions that define the term. A Texas appellate court has defined “maintain,” in
the context of defining “maintenance,” as “to hold or keep in any particular state of efficiency or
validity; to support, sustain, or uphold; to keep up; not to suffer to fail or decline.” Stanford Y. State
Dep’t of Highways and Pub. Tramp., 635 S.W.2d 581, 582 (Tex. App.-Dallas 1982, writ refd
n.r.e.) (citations omitted) (holding that a construction of guardrails on an existing overpass amounted
to a change in that overpass’s design, which was “not maintaining the overpass”). A recent attorney
general opinion adopted a substantively similar definition with respect to a county’s authority to use
county employees to open and close graves in private cemeteries. See Tex. Att’y Gen. Op. No.
JC-0329 (2001) at 2 (citing the Oxford English Dictionary) (concluding that a county’s authority
under the Health and Safety Code “to maintain” a private cemetery did not authorize the county to
use its employees and equipment to open and close graves).
You say that Goliad County would enter into contracts with nonprofit agencies to use county
inmates “for setting up and tearing down events.” Baiamonte Brief, supra note 2. These activities
do not fall within the definition of “maintenance,” because they are not activities that would hold or
%%x Brief from Honorable Rob Baiamonte, Goliad County Attorney (Apr. 29,2004) [hereinafter Baiamonte
Brief].
The Honorable Rob Baiamonte - Page 3 (GA-0261)
keep county property in any particular state of efficiency. Furthermore, activities that do fall within
the definition of maintenance are not public unless they are conducted on county property for the
public’s benefit3 Thus, we conclude that article 43.10(4) does not authorize a county to use inmate
labor on fundraisers that are a joint venture between a county and nonprofit agency. We do not
address the county’s authority to enter into joint ventures with private entities in general.
‘For example, acountywouldbepe~nedtousecountyinmatelabortocleanupcountypropertya~eranevent
because such activity would be maintenance work conducted for the public benefit.
The Honorable Rob Baiamonte - Page 4 (GA-0261)
SUMMARY
Texas Code of Criminal Procedure article 43.10(4) does not
authorize a county to use county inmate labor at events that are a joint
venture between the county and a nonprofit organization.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee