Can a Texas county lease a closed, empty county jail to a private company to run as a prison?

Texas AG Opinion JM-960: Turning a Closed Jail Into a Private One

Plain-English summary

Bexar County had an old jail sitting empty. The county had built a new jail, moved everyone over, and the state jail standards agency had ordered the old building closed. With county jails and state prisons overcrowded, someone proposed a fix: let a private company renovate the abandoned building and run it under contract with the state to hold parole violators. The catch was a state law that limits privatizing jails, and the state's top three officials asked the Attorney General whether that law blocked the plan.

The law, article 5115d, generally lets a county commissioners court contract with private vendors to build and run jails. But it has a guardrail in subsection (h). A commissioners court cannot "convert" a facility into a privately operated correctional facility if, on the day the law took effect, that facility was either being run by the county as a correctional facility or being built by the county to be one. The whole point of that clause was to stop counties from taking an existing public jail, full of public employees, and handing it to a private operator.

Everything turned on the word "convert." The Attorney General read it the ordinary way: you can only convert something from what it currently is. To convert a county-run jail into a private jail, you need a county-run jail to start with. The former Bexar jail was not a county-run jail anymore. It was a closed, vacant building. So handing it to a private vendor would not convert a county correctional facility into a private one; it would convert an abandoned building into a private facility. Subsection (h) does not reach that. The Attorney General also noted that exceptions to statutes get read narrowly, which pushed toward not stretching subsection (h) beyond its terms.

The legislative history pointed the same direction. The provision came out of Senate Bill 251 in 1987, and on the floor the bill's author and House sponsor explained that these anti-conversion clauses were added to reassure public employee groups that the law would not be used to privatize existing prisons and cost workers their jobs. Renovating a jail that had already been shut down, with its staff already moved to the new building, does not threaten anyone's job in the way the clause was meant to prevent.

The Attorney General attached one important condition. The answer depended on the closure being genuine. Bexar County had, in good faith, actually stopped using the old jail; it was not a paper shutdown staged to slip past the law. If a county closed a jail on paper purely as a maneuver to dodge the privatization limits and then reopened it under a private operator, the Attorney General signaled the answer could come out differently. Good faith was doing real work in the analysis.

Currency note

This opinion was issued in 1988. 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.

The statutes here have been recodified and amended since 1988. Article 5115d and article 6166g-2, V.T.C.S., which governed county and state contracting for private correctional facilities, were later folded into the Local Government Code and Government Code as Texas reorganized its statutes, and the rules on private jail contracting have changed. The Texas Board of Corrections and the corrections agency structure referenced here have also been reorganized. Anyone evaluating a private jail contract or the reuse of a closed public correctional facility today should consult the current statutes and the rules of the relevant state agencies rather than the 1988 provisions cited here.

Who this opinion affected (as of 1988)

Bexar County and its commissioners court: The opinion cleared the county to contract with a private vendor to renovate and operate the closed jail for parole violators, so long as the closure was genuine.

Counties with closed or abandoned jails: The opinion signaled that the anti-conversion ban applies to facilities currently operated or being built by the county, not to buildings a county has in good faith stopped using.

Public employee groups: The opinion confirmed the anti-conversion clause was meant to protect existing correctional jobs, and read it to reach only facilities still in county operation.

Common questions

Did the law let Bexar County lease its old jail to a private operator?
Yes. The Attorney General concluded that because the former jail was vacant and no longer county-operated, article 5115d(h) did not bar the county from contracting with a private vendor to renovate and run it for parole violators.

What does the anti-conversion clause actually forbid?
It forbids a commissioners court from converting a facility into a privately operated correctional facility if, on the statute's effective date, the county was operating it as a correctional facility or building it to be one. The clause targets privatizing existing public jails.

Why did the word "convert" matter so much?
Because you can only convert something from its current state. The old jail was already closed, so turning it over to a private operator converts an abandoned building, not a county-run jail, and the ban does not apply.

Was there any catch?
Yes. The Attorney General stressed the answer rested on the good faith of the closure. If a county shut a jail only as a subterfuge to avoid the privatization limits, the answer might be different.

Background and statutory framework

The question arose from a proposal to reduce overcrowding in county jails and the Department of Corrections. The Bexar County Commissioners Court would contract with a private vendor to renovate the old county jail and then contract with the state to operate the facility to hold parole violators (see V.T.C.S. arts. 5115d, 6166g-2). Article 5115d(c) authorizes a commissioners court 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. Subsection (h) provides that the commissioners court may not convert a facility into a correctional facility operated by a private vendor if, before the effective date of the article, the facility is operated as a correctional facility by the county or is being constructed by the county for use as a correctional facility.

The building housed the Bexar County Jail before April 14, 1987, the effective date of article 5115d, and for at least twelve months thereafter (Acts 1987, 70th Leg., ch. 18). Jail operations had moved to a new facility, the old jail was vacant, and the Texas Commission on Jail Standards had directed it closed months earlier.

The answer depended on the meaning of the prohibition, particularly the word "convert." Exceptions to statutes are strictly construed (Gulf States Utilities Co. v. State, 46 S.W.2d 1018 (Tex. Civ. App. - Austin 1932, writ ref'd)). The Attorney General read subsection (h) as prohibiting the commissioners court from converting a county-operated 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. The word "facility" is used throughout article 5115d to refer to a correctional facility, and subsection (h) carries the same meaning. The dictionary defines "convert" as to change or turn from one state, use, purpose, or function to another (Webster's New International Dictionary (3d ed. 1961)). Implicit in "convert" is that the property is a county-operated correctional facility at the time the commissioners court attempts to convert it, so the threshold inquiry is whether the property is a county-operated correctional facility at present.

The former Bexar County jail was not then a county-operated correctional facility. If the commissioners court entered the proposed contract, it would not convert a county-operated correctional facility into a privately operated one, but instead would convert an abandoned building into a correctional facility operated by a private vendor. Subsection (h) therefore did not bar the contract.

This construction matched the legislative intent documented in floor debate on Senate Bill No. 251 of the 70th Legislature (Acts 1987, 70th Leg., ch. 18), which enacted article 6166g-2 (authorizing the Texas Board of Corrections to contract with private vendors or commissioners courts for secure correctional facilities) and amended article 5115d to allow commissioners courts to enter such contracts for local correctional facilities. As introduced, the bill did not address converting public correctional facilities into private ones; subsection (h) and a similar provision in article 6166g-2 were added during the legislative process. The bill's author, Senator Ray Farabee, stated in floor debate that several provisions were added to meet the concerns of public employee organizations, specifically that the legislation could not be used to privatize existing prison facilities, and the House sponsor, Representative Clint Hackney, pointed out that no public employees' jobs would be interfered with. The proposed contract to renovate the former Bexar County jail and operate it for parole violators would not interfere with the jobs of county employees engaged in operating the county jail.

The Attorney General therefore concluded the legislature did not intend subsection (h) to apply to properties the commissioners court formerly operated as correctional facilities if the court, through good faith action, terminated their use for that purpose. The opinion emphasized that its conclusion rested on the good faith clearly evident here; if the change of use were a subterfuge to avoid the operation of article 5115d(c), the answer might well be different.

Citations

Statutory authority:

• Article 5115d, V.T.C.S. (county contracts with private vendors for jails; subsection (h) anti-conversion limit)
• Article 6166g-2, V.T.C.S. (state contracts with private vendors and commissioners courts for secure correctional facilities)

Cases:

• Gulf States Utilities Co. v. State, 46 S.W.2d 1018 (Tex. Civ. App. - Austin 1932, writ ref'd) (exceptions to statutes are strictly construed)

Prior Attorney General opinions referenced: none.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-960
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0960.pdf

Original opinion text

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

THE ATTORNEY GENERAL OF TEXAS

September 29, 1988

Honorable William P. Clements, Jr.
Governor
P.O. Box 12428
Austin, Texas 78711

Honorable William P. Hobby
Lieutenant Governor
P.O. Box 12128
Austin, Texas 78711

Honorable Gibson D. "Gib" Lewis
Speaker of the House
P.O. Box 2910
Austin, Texas 78769

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)

Gentlemen:

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 following prohibition:

(h) The commissioners court of a county may not convert a facility into a correctional facility operated by a private vendor if, before the effective date of this article, the facility is:

(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 Leg., ch. 18, section 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 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.g., 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 county-operated 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 "facility" 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), (d), (e)(1), (g).

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.

Webster's New International Dictionary 499 (3d ed. 1961). Implicit in the word "convert" 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 threshold 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, section 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 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 MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General