                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:


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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




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