The Honorable Paul B. Benham, Jr. State Senator P.O. Drawer 477 Marianna, AR 72360
Dear Senator Benham:
This is in response to your request for an opinion concerning Act 427 of 1987. You have posed the following specific question:
Does Act 427 of 1987 authorize a "prison contractor" or "contractor" to construct a "prison facility" and to contract with the Arkansas Department of Correction and/or "political subdivisions" for the operation of such "prison facilities" for the housing of inmates?
The answer to your question, as worded, is "no". The act does not authorize a prison contractor to construct a prison facility and thereafter contract with a governmental entity for its operation. The act authorizes in 12-50-106:
The department, any regional corrections commission, and any political subdivision . . . to enter into contracts with each other and the prison contractors for the financing, acquiring, constructing, and operating of facilities.
As can be garnered from the statute, it is the governmental unit who may agree to the construction of a prison facility by contracting with a private prison contractor. In selecting such a contractor, the governmental unit must be satisfied that the private contractor possesses all of the qualities enumerated in the remaining provisions of A.C.A. 12-50-106. If the department, a regional corrections commission, or a political subdivision is so satisfied, it may contract with private prison contractors for the construction and operation of the facility.
Thus, while the arrangement suggested under your question may not be prohibited by law, Act 427 of 1987 should not be cited as authority for such action. In this regard, please see Opinion No.87-11 attached hereto. Note particularly the answer to Question #2 which addressed the formation of a regional jail by contract with a private entity.
The Attorney General is required under A.C.A. 25-16-706 to provide his opinion to the General Assembly on the constitutionality of any proposed bill. He is precluded, however, from engaging in the private practice of law. A.C.A. 25-16-701. Therefore, this opinion is not provided for the benefit of private third parties and should not be relied upon or offered for that purpose.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.