                            @ffice of tfp ~ttornep QBenera~
                                       &ate of IEexas
DAN MORALES
 ATTORNEY
      GENERAL                                 July 9. 1993

     Honorable Jack Henington                      OpinionNo. DM-233
     District and County Attorney
     P.O. Box 364                                  Re: Whether the Texas Department         of
     Red River county courthouse                   Crimhtd Justice may operate a work
     Clarksville.Texas 754260364                   program facility that produces goods and
                                                   services that are marketed for profit or
                                                   exempted under the Federal Private Jndustry
                                                   Enhancement Program         and     related
                                                   question (BQ-504)

     Dear Mr. Herrington:

              On behalf of Bed Biver County, you have asked us to determine whether the Texas
     Department of CriminalJustice (the “TDCJ”)may own or operate a work program facility
     that qualifiesfor exemption under the Private Industry EnhancementProgram of title 18 of
     the United States Code, section 1761(c). You also ask whether chapter 497, subchapter
     C of the Government Code authorizes the TDCJ to own and operate a work program
     facility.

             Both of your questions are based, at least in part, on chapter 497 of the
    Government Code. Among other things, chapter 497 creates the prison industries office
    in the institutional division of the TDCJ and establishes a work program plan involving
    municipalities and counties. Subchapter A creates within the institutional division of the
    TDCJ a prison industries office “to provide adequate employment and vocational training
    and development and expansion of public and private prison industries.” See Goti Code
    @ 497.001, 497.002(a). To that end, section 497.004(a) requires the director of the
    institutiottal division of the TDCJ to use inmate labor in the prison industries program to
    the greatest extent feasible and to develop and expand the prison industries program
    through arrangements with private business for the use of inmate labor. Bur see gene&y
    Letter opinion No. 8867 (1988).

           Subchapter C requires the pardons and paroles division of the TDCJ to establish a
    work program plan, under which the pardons and paroles division may transfer an eligible
    person gem the institutiomd division or a county jail to a work facility that a municipality
    or county owns and operates. Gov’t Code 8 497.053; see Attorney General Gpiion
    JM-1212 (1990) at 1. While the work facility participant resides at the facility, he or she
    remains in the technical custody of the pardons and paroles division. See Gov’t Code
    8 497.053; Attorney General Opinion JM-1212 at 1. The municipality or county owning
    and operating the work facility must comply with the requirements articulated in


                                         p.    1207
Honorable JackHenington - Page 2            (uu-233)




shchapter C. includingdistriig     a resident’searnings as required in section 497.056(b)
and ensuing that residents are paid wages at least as high as the prevailing wage for
similarwork in the area or conuntmity. Gov’tCode 5 497.057.

        You first ask whether the TDCJ may own and operate a work program Exility that
is exempt under title 18 of the United States Code, section 1761(c). We note, first, that
the term “work program facility”or “work fhcility”refers to a fhility owned and operated
by a municipality or county pumuant to a contract with the pardons and paroles division
under chapter 497, subdrapter C of the Government Code. Because the TDCJ is not a
municipality or county, a&chapter C does not apply to it. Instead, pumuant to chapter
497, subchapter A, the TDCJ may operate a “prison industries program” at each
wrrectional facility that the director of the institutionaJdivision considers suitable. See id.
8 497.002(b).


        Jn general, title i8 of the United States Code, section 1761(a) &minaMs the
transportation in interstate commerce of “any goods, m       or merchandisemanufacture
produced, or mined, wholly or in part by convicts or prisoners, except convicts or
               in any penal or reformatory institution.’ See a& IVeufworfA   v. So&m, 548
E?4:       ‘A5 (8th Cii. S.D. 1977) (noting district court construction of 18 U.S.C.
5 1761(a)). See generallly fintuc~ Whip & Cohr Co. v. IllitwisCent. RR. Co.. 299
U.S. 334 (1937) (considering constitutionality of Ashurst-Sumners Act,codiSedas18
U.S.C. Q§ 1761, 1762). Subsection (c), about which you ask, exempts goods made by
convicts or prisoners who are participating in one of not more than titty nonfederal prison
work pilot projects that the Diior of the Bureau of Justice Amistance has designated
and who meet other specified conditions. You have made numerous arguments that
goods rnamhhd         in a TDCJ prison industries program ate not exempt under subsection
(c). We need not determine whether you are correct, because we believe that such goods
are excepted from section 1761 under subsection (a), as goods manufd            by convicts
or prisoners in a penal or refomtatory institution.

       Second,yourskwtKthatheTDCJmayownmdopaateaworLprogramfacility
under chapter 497. tabchqw C of the Go-             Code. As we stated above. the term
“work program fhcility”or “work tbcility”refers only to a facility owned and operated by
a municipality or county. Therefore, subchapter C by its terms authorizes only
municipalitiesand counties to own work program f&iJities. Goti Code 5 497.055(b). A
work program facility may be operated only pumant to a contract between the pardons
and paroles division of the TDCJ and the municipality or county in which the facility is
located. Id. Thus, the TDCJ may not own or operate a work program facility. It may.
however, operate a prison industries program under chapter 497, subchapter A of the
Govm         Code.




                                       p.   1208
Honorable Jack Hcnington - Page 3        (DM-233)




                                   SUMMARY

               Section 1761(a) of title 18, United States Code. accepts 6om
          the federal prohibition against the transportation in interstate
          wmmercc of prison-made goods those goods inmates or prisoners
          manhctured in a prison industries program that the Texas
          Department of Criminal Justice operates pursuant to chapter 497.
          ahchapter A of the Govment Coda. Chapter 497. subchapter C
          of the Government Code does not authorize the TDCJ to own and
          operate a work program fkcility;such thilities may be owned only by
          a municipalityor county and operated pursuant to a contract between
          the pardons and paroles divisionof the TDCJ and the municipalityor
          wunty in which the work program facility is located.




                                                    DAN      MORALES
                                                    Attorney General of Texas

WILL PRYOR
Firat Assistant Attorney General

MARYKELLBR
Deputy Attorney General for Litigation

RBNEAHIcKs
State Solicitor

MADELEINE B. JOHNSON
Chair, Opiion Committee




                                    p. 1209
