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 as a privately operated jail for 

housing parole violators 

(RQ-1550) 

you ask a question arising out of a proposal to reduce 

overcrowding in county jails and the Department of Corrections. 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 connection 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 

prohibition: 

following 

(h) The commissioners court of a county 

mav not convert a .facilitv into a correctional 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 

was directed to be closed 

facility 

a number of months 

Texas Commission on Jail Standards. 

ago by the 

The answer to your question depends on the meaning of 

the prohibition in article 5115d(h), V.T.C.S., with particular 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 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 a correctional facility 

by a private vendor, 

operated 

operation or 

if the 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) 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, purpose, 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 commissioners 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 

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. 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 

correctional 

operated 

violators. 

facility for housing parole 

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