Can the Texas prison system run its own work-program facility for inmate labor, or can only cities and counties own one?

Plain-English summary

Texas runs two different kinds of inmate-work setups, and a county prosecutor wanted to know which one the state prison agency could own. The first kind is a "prison industries program," run inside the prison system itself, where inmates make goods and learn job skills. The second kind is a "work program facility," a place where eligible inmates live and work that, by statute, is built and run by a city or county under a contract with the prison system's parole division.

The Attorney General drew a clean line. The state prison agency, the Texas Department of Criminal Justice, can run a prison industries program at its own correctional units. But it cannot own or operate a "work program facility." That label, the opinion explained, refers only to a facility a municipality or county owns and runs under a contract with the pardons and paroles division. The department is neither a city nor a county, so the part of the law that authorizes those facilities simply does not reach it.

The prosecutor also asked about a federal law that generally bars shipping prison-made goods across state lines, and whether goods from the program qualified for a narrow federal exemption for pilot projects. The Attorney General said it did not have to answer that, because a different part of the same federal statute already excepts goods made by prisoners in a penal institution. Either way, the goods could move in interstate commerce.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Confirm the current text of Government Code chapter 497 and 18 U.S.C. section 1761 before relying on anything described here.

Background and statutory framework

Chapter 497 of the Government Code governs inmate work in Texas. Subchapter A creates a prison industries office within the institutional division of the TDCJ to provide employment, vocational training, and the development and expansion of public and private prison industries (Gov't Code §§ 497.001, 497.002). Section 497.004(a) directs the institutional division's director to use inmate labor in the prison industries program to the greatest extent feasible, including through arrangements with private business.

Subchapter C creates a separate work program plan run by the pardons and paroles division. Under it, the division may transfer an eligible person from the institutional division or a county jail to a work facility that a municipality or county owns and operates, while the participant stays in the technical custody of the division (Gov't Code § 497.053). The local government must comply with subchapter C's requirements, including distributing a resident's earnings and paying at least the prevailing wage for similar work in the area (Gov't Code § 497.057). Because a work program facility may be operated only under a contract between the pardons and paroles division and the municipality or county where it sits (Gov't Code § 497.055(b)), and the TDCJ is neither, the Attorney General concluded the TDCJ may not own or operate one. It may operate a prison industries program under subchapter A.

On the federal question, 18 U.S.C. section 1761(a) generally bars transporting in interstate commerce goods made wholly or in part by convicts or prisoners, except those produced in a penal or reformatory institution. Subsection (c) creates a separate exemption for goods made in a limited number of designated nonfederal prison work pilot projects. The Attorney General concluded it need not decide whether the program's goods qualified under subsection (c), because goods made by prisoners in a penal institution are already excepted under subsection (a). The opinion cited Wentworth v. Solem and Kentucky Whip & Collar Co. v. Illinois Cent. R.R. Co. in discussing the statute.

Citations

• Gov't Code § 497.001, § 497.002 (prison industries office in the institutional division of the TDCJ); § 497.004(a) (director to use inmate labor to the greatest extent feasible)
• Gov't Code § 497.053 (pardons and paroles division may transfer eligible person to a city- or county-owned work facility; participant remains in technical custody); § 497.055(b) (work program facility operated only under contract between the division and the municipality or county); § 497.057 (local government must pay prevailing wage)
• 18 U.S.C. § 1761(a) (bars interstate transport of prison-made goods, except those produced in a penal or reformatory institution); § 1761(c) (exemption for designated nonfederal prison work pilot projects)
• Wentworth v. Solem, 548 F.2d 773 (8th Cir. 1977) (noting district court construction of 18 U.S.C. § 1761(a))
• Kentucky Whip & Collar Co. v. Illinois Cent. R.R. Co., 299 U.S. 334 (1937) (constitutionality of the Ashurst-Sumners Act, codified as 18 U.S.C. §§ 1761, 1762)

Common questions

Can the Texas prison system own a work program facility?
Under this opinion, no. The Attorney General concluded that chapter 497, subchapter C reserves work program facilities to municipalities and counties operating under a contract with the TDCJ pardons and paroles division. The TDCJ is neither a city nor a county, so it could not own or operate one.

What can the prison system run instead?
A prison industries program under chapter 497, subchapter A, at each correctional facility the institutional division's director considers suitable.

Who owns and runs work program facilities?
A municipality or county, under a contract with the pardons and paroles division. The local government must follow subchapter C's rules, including distributing residents' earnings and paying at least the prevailing wage for similar work.

Could the goods be shipped across state lines despite the federal ban?
Yes. The Attorney General concluded that goods made by prisoners in a penal institution are excepted from the federal transportation ban by 18 U.S.C. section 1761(a), so it did not need to decide whether they also qualified under the pilot-project exemption in subsection (c).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0233
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0233.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

July 9, 1993

Honorable Jack Herrington
District and County Attorney
P.O. Box 364
Red River County Courthouse
Clarksville, Texas 75426-0364

Opinion No. DM-233

Re: Whether the Texas Department of Criminal Justice may operate a work program facility that produces goods and services that are marketed for profit or exempted under the Federal Private Industry Enhancement Program and related question (RQ-504)

Dear Mr. Herrington:

On behalf of Red River County, you have asked us to determine whether the Texas Department of Criminal Justice (the "TDCJ") may own or operate a work program facility that qualifies for exemption under the Private Industry Enhancement Program 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 Gov't Code §§ 497.001, 497.002(a). To that end, section 497.004(a) requires the director of the institutional 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. But see generally Letter Opinion No. 88-67 (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 from the institutional division or a county jail to a work facility that a municipality or county owns and operates. Gov't Code § 497.053; see Attorney General Opinion 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 § 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 subchapter C, including distributing a resident's earnings as required in section 497.056(b) and ensuring that residents are paid wages at least as high as the prevailing wage for similar work in the area or community. Gov't Code § 497.057.

You first ask whether the TDCJ may own and operate a work program facility 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 facility" refers to a facility owned and operated by a municipality or county pursuant to a contract with the pardons and paroles division under chapter 497, subchapter C of the Government Code. Because the TDCJ is not a municipality or county, subchapter C does not apply to it. Instead, pursuant to chapter 497, subchapter A, the TDCJ may operate a "prison industries program" at each correctional facility that the director of the institutional division considers suitable. See id. § 497.002(b).

In general, title 18 of the United States Code, section 1761(a) terminates the transportation in interstate commerce of "any goods, wares or merchandise manufactured, produced, or mined, wholly or in part by convicts or prisoners, except convicts or prisoners . . . in any penal or reformatory institution." See also Wentworth v. Solem, 548 F.2d 773 (8th Cir. 1977) (noting district court construction of 18 U.S.C. § 1761(a)). See generally Kentucky Whip & Collar Co. v. Illinois Cent. R.R. Co., 299 U.S. 334 (1937) (considering constitutionality of Ashurst-Sumners Act, codified as 18 U.S.C. §§ 1761, 1762). Subsection (c), about which you ask, exempts goods made by convicts or prisoners who are participating in one of not more than fifty nonfederal prison work pilot projects that the Director of the Bureau of Justice Assistance has designated and who meet other specified conditions. You have made numerous arguments that goods manufactured in a TDCJ prison industries program are 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 manufactured by convicts or prisoners in a penal or reformatory institution.

Second, you ask whether the TDCJ may own and operate a work program facility under chapter 497, subchapter C of the Government Code. As we stated above, the term "work program facility" or "work facility" refers only to a facility owned and operated by a municipality or county. Therefore, subchapter C by its terms authorizes only municipalities and counties to own work program facilities. Gov't Code § 497.055(b). A work program facility may be operated only pursuant 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 Government Code.

SUMMARY

Section 1761(a) of title 18, United States Code, excepts from the federal prohibition against the transportation in interstate commerce of prison-made goods those goods inmates or prisoners manufactured in a prison industries program that the Texas Department of Criminal Justice operates pursuant to chapter 497, subchapter A of the Government Code. Chapter 497, subchapter C of the Government Code does not authorize the TDCJ to own and operate a work program facility; such facilities may be owned only by a municipality or county and operated pursuant to a contract between the pardons and paroles division of the TDCJ and the municipality or county in which the work program facility is located.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee