Can a Texas county use jail inmate labor to set up and tear down events at fundraisers the county co-hosts with a nonprofit organization?

TX AG Opinion GA-0261: County Inmate Labor Limits

Plain-English summary

The Goliad County Attorney asked whether county jail inmates could keep helping set up and tear down fundraiser events, like the 4-H county fair, held by nonprofit organizations on county property. The Commissioners Court wanted to formalize the practice by entering into joint venture agreements with various nonprofits for future fundraisers, reasoning that once the county was a joint venture partner, the resulting events would count as the county's own "public works" and inmate labor would be authorized under Code of Criminal Procedure article 43.10(4).

The opinion rejected that theory on two independent grounds. First, "public works" is a legal term of art meaning public improvements of a fixed, permanent nature, like a courthouse air conditioning system, not a one-time fundraiser event, so a county's participation in a joint venture does not transform an event into a county public work no matter how the venture is structured. Second, article 43.10(4) also authorizes inmate labor on "maintenance" projects, but setting up and tearing down an event does not keep county property in a particular state of efficiency or repair, the ordinary meaning of maintenance, so that authorization did not apply either. The opinion did note that inmates could permissibly clean up county property after an event, since post-event cleanup is maintenance work performed for the public's benefit, but it stopped short of addressing whether a county may enter into joint ventures with private entities at all.

Currency note

This opinion was issued in 2004. 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.

Who this opinion affected (as of 2004)

Goliad County and its Commissioners Court: The opinion concluded article 43.10(4) does not authorize using county inmate labor to set up and tear down events for nonprofit fundraisers, even where the county has entered a joint venture agreement with the nonprofit hosting the event.

Texas counties generally that use inmate labor for community events: The opinion clarified that "public works" under article 43.10(4) means fixed public improvements, not any event a county happens to be involved in, and that "maintenance" means keeping existing property in good condition, not setting up or dismantling event infrastructure, limiting where county inmate labor can lawfully be deployed for community and nonprofit events.

Nonprofit organizations holding fundraisers on county property: The opinion meant these organizations could not rely on a joint venture with the county to obtain free inmate labor for event setup and teardown, though the opinion noted county inmates could still clean up county property after such an event as ordinary maintenance.

Common questions

Can a Texas county send jail inmates to help set up tables and stages for a nonprofit's fundraiser on county land?
No, this 2004 opinion held that Code of Criminal Procedure article 43.10(4) does not authorize using county inmate labor for setting up and tearing down events, even fundraisers held on county property, because that work is neither a "public work" nor "maintenance" within the meaning of the statute.

Does it help if the county formally enters a joint venture agreement with the nonprofit running the fundraiser?
No. The opinion rejected the argument that a county's participation in a joint venture converts the resulting event into the county's own "public works," explaining that public works is a term of art for fixed public improvements, not events a county happens to co-sponsor.

Can county inmates clean up after a fundraiser event even though they can't help set it up?
Yes, based on the opinion's example. It distinguished pre- and post-event setup and teardown, which do not qualify as maintenance, from cleaning up county property after an event, which the opinion said would be permissible maintenance work performed for the public's benefit.

Background and statutory framework

Article 43.10 of the Code of Criminal Procedure requires certain convicted persons confined in a county jail, or unable to pay an assessed fine, to work in the county jail industries program or perform manual labor, and article 43.10(4) specifically authorizes putting them to labor "upon public works and maintenance projects, including public works and maintenance projects for a political subdivision located in whole or in part in the county." Goliad County had been using inmate labor to set up tables, chairs, stages, and lighting, and to provide cleanup for nonprofit fundraisers on county property, including the 4-H county fair, and the Commissioners Court wanted to formalize the arrangement through joint venture agreements with several nonprofits that hold fundraisers throughout the year, some to fund scholarships for local youth.

The opinion first addressed the "public works" argument, noting the term is a term of art synonymous with "public improvements," citing Overstreet v. Houston County, which held that installed air conditioning and window units in a county courthouse were public works or "improvements of a fixed nature." It also cited a 1939 predecessor opinion, Attorney General Opinion O-677, which had already held that using inmates for janitorial and maintenance work at a county courthouse and jail did not constitute labor on public works under the statute's 1925 predecessor provision. Because the county's proposed reading of "public works" to mean any county project did not match this narrower, fixed-improvement meaning, the opinion found no basis to treat the nonprofit fundraisers as county public works merely because of a joint venture arrangement.

Turning to the "maintenance" authorization, the opinion applied the statutory rule that undefined terms are given their ordinary meaning unless they have acquired a technical one, and looked to Texas case law defining "maintain" as to hold or keep something in a particular state of efficiency or validity, to support, sustain, or uphold, not to suffer it to fail or decline, citing Stanford v. State Dep't of Highways and Pub. Transp., which held that adding guardrails to an overpass changed its design rather than maintaining it. It also cited a 2001 attorney general opinion applying a similar definition to conclude that a county's statutory authority to "maintain" a private cemetery did not extend to opening and closing graves. Applying that definition, the opinion found that setting up and tearing down an event does not keep county property in any particular state of efficiency, so it falls outside "maintenance" too. The opinion added, in a footnote, that a county could still use inmate labor to clean up county property after an event, since that activity is maintenance work conducted for the public's benefit, but expressly declined to address whether a county may enter into joint ventures with private entities in general.

Citations

Statutes:

• TEX. CODE CRIM. PROC. ANN. art. 43.10 (Vernon Supp. 2004-05)
• TEX. CODE CRIM. PROC. ANN. art. 43.10(4)
• TEX. GOV'T CODE ANN. § 311.011(a)-(b) (Vernon 1998)

Cases:

• Overstreet v. Houston County, 365 S.W.2d 409 (Tex. Civ. App.-Houston 1962, writ ref'd n.r.e.)
• Stanford v. State Dep't of Highways and Pub. Transp., 635 S.W.2d 581, 582 (Tex. App.-Dallas 1982, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0261
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0261.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

October 21, 2004

The Honorable Rob Baiamonte
Goliad County Attorney
Post Office Box 24
Goliad, Texas 77963

Opinion No. GA-0261

Re: Whether Texas Code of Criminal Procedure article 43.10 authorizes a county to use county inmate labor at events that are a joint venture between the county and a nonprofit organization (RQ-0217-GA)

Dear Mr. Baiamonte:

You ask whether Texas Code of Criminal Procedure article 43.10 authorizes a county to use county inmate labor at events that are a joint venture between the county and a nonprofit organization.[1]

Article 43.10 of the Code of Criminal Procedure (the "Code") outlines a system by which certain convicted persons in a county, who are either confined to a county jail or unable to pay an assessed fine, "shall be required to work in the county jail industries program or shall be required to do manual labor." See TEX. CODE CRIM. PROC. ANN. art. 43.10 (Vernon Supp. 2004-05). Further, the Code provides that "[t]hey shall be put to labor upon public works and maintenance projects, including public works and maintenance projects for a political subdivision located in whole or in part in the county." Id. art. 43.10(4).

By way of background, you note that Goliad County inmates have been used to help set up tables and chairs, stages and lighting and provide clean-up services for nonprofit organizations that hold fundraisers on Goliad County property. See Request Letter, supra note 1, at 1. You cite as an example the 4-H county fair for which county inmate labor has been used to set up and tear down fair facilities. See id. You also note that the county has several nonprofit organizations that hold fundraisers throughout the year, some of which are to award scholarships to Goliad County youth. See id. The Goliad County Commissioners Court wants to enter into agreements with these various nonprofit agencies for future fundraisers and use county inmate labor to help with the events. See id. Thus, you ask "if the county enters into a joint venture with a nonprofit, is that sufficient enough to allow county inmate labor to be used for setting up and tearing down the event under . . . article 43.10(4)"? Id. at 2.

You contend that the county's participation in a joint venture with a nonprofit agency qualifies any subsequent events governed by these joint ventures as "public works" of the county and therefore the county under article 43.10(4) is expressly authorized to use county inmate labor under these circumstances.[2] Although this office has stated that "county prisoner labor may be only used on county projects," Tex. Att'y Gen. Op. No. H-1038 (1977) at 1, you conclude that these fundraisers would not be a private operation and so such limitations would not apply, see Baiamonte Brief, supra note 2.

The term "public works" is a term of art that is synonymous with "public improvements." See, e.g., Overstreet v. Houston County, 365 S.W.2d 409 (Tex. Civ. App.-Houston 1962, writ ref'd n.r.e.) (holding that an air conditioning system and window units installed in a county courthouse were public works, "or improvements of a fixed nature"); Tex. Att'y Gen. Op. No. O-677 (1939) at 4. Furthermore, in Attorney General Opinion O-677, this office found that the use of inmates on janitorial and maintenance work at a county courthouse and jail did not constitute labor on public works. See Tex. Att'y Gen. Op. No. O-677 (1939) at 4 (construing 1925 Code of Criminal Procedure, article 794(5), the precursor to article 43.10(4)) ("We do not believe that such casual . . . labors . . . come within the purview of the statutes as labor 'upon any public works of the county.'"). Your use of "public works" to mean any county project does not comport with article 43.10(4)'s use of the term. Consequently, we conclude that there is no basis to sustain the commissioners court's proposal on the theory that these joint ventures are public works.

In addition to authorizing county inmate labor on public works, article 43.10(4) now authorizes county inmate labor on public maintenance projects. See TEX. CODE CRIM. PROC. ANN. art. 43.10(4) (Vernon Supp. 2004-05). Again the Code fails to define the term "maintenance" and so we must construe it according to the rules of grammar and common usage, unless it has acquired a technical meaning. See TEX. GOV'T CODE ANN. § 311.011(a)-(b) (Vernon 1998). We look first to Texas judicial decisions that define the term. A Texas appellate court has defined "maintain," in the context of defining "maintenance," as "to hold or keep in any particular state of efficiency or validity; to support, sustain, or uphold; to keep up; not to suffer to fail or decline." Stanford v. State Dep't of Highways and Pub. Transp., 635 S.W.2d 581, 582 (Tex. App.-Dallas 1982, writ ref'd n.r.e.) (citations omitted) (holding that a construction of guardrails on an existing overpass amounted to a change in that overpass's design, which was "not maintaining the overpass"). A recent attorney general opinion adopted a substantively similar definition with respect to a county's authority to use county employees to open and close graves in private cemeteries. See Tex. Att'y Gen. Op. No. JC-0329 (2001) at 2 (citing the Oxford English Dictionary) (concluding that a county's authority under the Health and Safety Code "to maintain" a private cemetery did not authorize the county to use its employees and equipment to open and close graves).

You say that Goliad County would enter into contracts with nonprofit agencies to use county inmates "for setting up and tearing down events." Baiamonte Brief, supra note 2. These activities do not fall within the definition of "maintenance," because they are not activities that would hold or keep county property in any particular state of efficiency. Furthermore, activities that do fall within the definition of maintenance are not public unless they are conducted on county property for the public's benefit.[3] Thus, we conclude that article 43.10(4) does not authorize a county to use inmate labor on fundraisers that are a joint venture between a county and nonprofit agency. We do not address the county's authority to enter into joint ventures with private entities in general.

SUMMARY

Texas Code of Criminal Procedure article 43.10(4) does not authorize a county to use county inmate labor at events that are a joint venture between the county and a nonprofit organization.

Very truly yours,

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Rob Baiamonte, Goliad County Attorney, to Honorable Greg Abbott, Texas Attorney General (Apr. 29, 2004) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] See Brief from Honorable Rob Baiamonte, Goliad County Attorney (Apr. 29, 2004) [hereinafter Baiamonte Brief].

[3] For example, a county would be permitted to use county inmate labor to clean up county property after an event because such activity would be maintenance work conducted for the public benefit.