### THE ATTORNEY GENERAL OF TEXAS

Honorable William P.Clements, Jr. Governor P. 0. Box 12420 Austin, Texas 78711

Honorable William P.Hobby Lieutenant Governor P. 0. Box 12128 Austin, Texas 78711

Honorable Gibson D. "Gib" Lewis Speaker of the House P. 0. BOX 2910 Austin, Texas 78769

Gentlemen: Opinion No.JM-960

Re: Whether article 5115d, V.T.C.S., prohibits the
use of the former Bexar County Jail asa privately operated jail for housing parole violators (RQ-1550)

you ask aquestion arising out ofaproposal to reduce overcrowding incounty jails and the Department of Corrections. It isproposed that the Commissioners Court ofBexar County contract with aprivate vendor who will renovate the old county jail building and then contract with the state to operate the facility tohold parole violators. See V.T.C.S. arts. 5115d, 6166g-2. Aquestion 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 connection with this proposal.

Article 5115d, V.T.C.S., authorizes the commissioners court of acounty 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, orrelated facility." V.T.C.S. art. 5115d(c). The statute includes the prohibition: following

(h) The commissioners court of a county mav not convert a .facilitv into a correctional facilitv ouerated bv anrivate vendor if, before the effective date of this article, the facility is:

p.4873Honorable William P. Clements, Jr.

Honorable William P.Hobby Honorable Gibson D. "Gib" Lewis Page 2 (JM-960)



### (1) operated as acorrectional facility by the county; or
(2) being constructed by the county for use as acorrectional. facility. (Emphasis added.)

V.T.C.S. art. 5115d(h).

You inform us **by** attachment toyour 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 anew facility, and the old jail facility ispresently vacant, according to information submitted with your request letter. The old jail
was directed tobe closed facility
anumber ofmonths Texas Commission onJail Standards. ago by the

The answer toyour question depends onthe meaning of the prohibition inarticle 5115d(h), V.T.C.S., with particular attention tothe language wehave 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) ofthat statute. Exceptions to statutes are strictly construed. 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 acorrectional facility byaprivate vendor, operated
operation or ifthe county-operated facility was in

under construction by the county as of the effective date of article 5115d(h). used throughout article The word l'facility't is 5115d, V.T.C.S.., to refer to a correctional facility,' and we believe it also has this meaning in subsection (h) ofthis 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 orturn from one use, purpose, or function to another. -.

p.4874Honorable William P. Clements, Jr.

Honorable William P.Hobby Honorable Gibson D. "Gib" Lewis Page 3 m-960)

Webster's New International Dictionary 499 (3ded. 1961). Implicit intheword %onvert" used insubsection (h)isthe idea that the property isa county-operated correctional facility at the time the commissioners court attempts to convert it into aprivately operated facility. Thus, the application ofarticle 5115d(h), V.T.C.S., to the contract proposal you describe involves athreshhold inquiry: Isthe property inquestion acounty-operated correctional facility at the present time?

The former Bexar County jail building isnot now a county-operated correctional facility. Thus, ifthe commissioners court entered into the proposed contract, it would not convert a county-operated correctional facility into
aprivately-operated correctional facility but instead "convert'* anabandoned building into acorrectional facility operated.by aprivate vendor. The commissioners would not bebarred by subsection (h)ofarticle 5115d, V.T.C.S., from entering .intothe contract.

Our construction of subsection (h)isconsistent with the legislative intent asdocumented by floor debates onthe bill which enacted article 5115d(h), V.T.C.S. Senate Bill No. 251 ofthe 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 orwith 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 toarticle 6166g-2, V.T.C.S. Senator Ray Farabee, the author of Senate Bill No. 251, stated in floor debate relevant to Department ofCorrections facilities that several provisions had been put into meet the concerns 

### ofpublic employee organizations, specifically that the legislation could not be used to privatize existing prison facilities. Representative Clint Hackney, the House sponsor, pointed out inHouse 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 ofprotecting public employees from loss of jobs through privatization also underlies subsection (h) of

p.4875Honorable 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 tohave a private vendor renovate the 

### former Bexar County jail building and operate a facility forparole violators there should 

### not interfere with the jobs of county employees engaged inoperating the county jail.

We therefore intend subsection conclude that the legislature did not
commissioners (h) to apply to properties that the court formerly correctional facilities if the court, operated as 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 Bexar County jail contract regarding the former facility. We emphasize that our conclusion is based upon the good faith clearly evident here. Ifthe purpose ofthe change ofuse were asubterfuge to avoid the operation ofarticle 5115d(c), our answer might well be different.

SUMMARY

Subsection (h)ofarticle 5115d, V.T.C.S., does not prohibit the use ofthe former Bexar County jail building asaprivately correctional operated
violators. facility for housing parole

JIM MATTOX Attorney General ofTexas

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 byRick Gilpin Assistant Attorney General

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