ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 1,2006
The Honorable Eddie Arredondo Opinion No. GA-0424
Burnet County Attorney
Bumet County Courthouse Re: Use of county jail inmate labor on projects
220 South Pierce for nonprofit organizations (RQ-0406-GA)
Bumet, Texas 78611
Dear Mr. Arredondo:
You ask two questions relating to the use of countyjail inmate labor on projects for nonprofit
organizations.’ You ask first whether “a county sheriff operating” a work program for which certain
defendants may volunteer under article 43.101(a) of the Code of Criminal Procedure must “follow
the new provisions under [article] 43.10(4) when working” the inmates on projects for
nonprofit organizations. Request Letter, supra note 1, at 1; see also TEX. CODE WM. PROC. ANN.
arts. 43.10(4), .101(a) (Vernon Supp. 2005). You ask second whether “outside oP’ article 43.10 a
county sheriff has “legal authority to use [county] jail inmate trustees on any proJects, including
those for nonprofit organizations.” Request Letter, supra note 1, at 1.
Article 43.101 (a) permits defendants awaiting trial or convicted defendants awaiting transfer
to the Texas Department of Criminal Justice’s institutional division to voluntarily participate in “any
work program operated by the sheriff that uses the labor of convicted defendants.” TEX. CODE GRIM.
PROC. ANN. art. 43.101(a) (Vernon Supp. 2005); see also id. art. 43.101(b) (authorizing a sheriffto
accept as a volunteer only defendants who have not engaged in or are not accused of engaging in
violent behavior); TEx. GOV’T CODE ANN. 5 498.003(e) (Vernon 2004) (requiring the Texas
Department of Criminal Justice to award good conduct time to a defendant who diligently
participates in a “voluntary work program operated by a sheriff under Article 43.101, Code of
Criminal Procedure”). Three statutes, other than article 43.101, recognize the establishment of
county programs in which a defendant may perform work: articles 43.09 and 43.10 of the Code of
Criminal Procedure and section 351.201 of the Local Government Code. See TEX. CODE CWM.
PROC. ANN. arts. 43,09(a), .lO (Vernon Supp. 2005); TEX. Lot. GOV’T CODE ANN. 5 351.201(a)
(Vernon 1999).
‘See Letter from Honorable Eddie Arredondo, Bumet CountyAttorney, to Honorable Greg Abbott, Attorney
General of Texas (Oct. 18, 2005) (on tile with the Opinion Committee,also availableat bttp:liwww.oag.state.tx.us)
[hereinafterRequest Letter].
The Honorable Eddie Arredondo - Page 2 (GA-0424)
First, under article 43 .lO, certain convicted defendants may be required to work in a county
jail industries program or to perform manual labor:
Where the punishment assessed in a conviction for
misdemeanor is confinement in jail for more than one day, or where
in such conviction the punishment is assessed only at a pecuniary fine
and the party so convicted is unable to pay the fine and costs
adjudged against him, or where the party is sentenced to jail for a
felony or is confined in jail after conviction of a felony, the party
convicted shall be required to work in the county jail industries
program or shall be required to do manual labor in accordance with
the provisions of this article
TEX. CODE CKIM. PROC. ANN. art. 43.10 (Vernon Supp. 2005). Article 43.10 further authorizes a
county to construct a “workhouse” and establish a “county farm” to utilize convicted defendants’
labor, id. art. 43.10(l), and subsection (4) specifies the type of labor that defendants may perform
under article 43.10:
[Convicted defendants] 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. They may be put to labor upon maintenance
projects for a cemetery that the commissioners court uses public
funds, county employees, or county equipment to maintain. They
may also be put to labor providing maintenance and related services
to a nonprofit organization that qualities for a tax exemption under
Section 501(a), Internal Revenue Code of 1986, as an organization
described by Section 501(c)(3) of that code, and is organized as a
nonprofit corporation under the Texas Non-Profit Corporation Act
) provided that, at the sheriffs request, the commissioners court
determines that the nonprofit organization provides a public service
to the county or to a political subdivision located in whole or in part
in the county.
Id. art. 43.10(4).
Second, while article 43.09 does not authorize a county to establish a work program,
subsection (a) permits defendants who cannot pay assessed tines to pay the fine by working:
When a defendant is convicted of a misdemeanor and his
punishment is assessed at a pecuniary fine or is confined in a jail after
conviction of a felony for which a tine is imposed, if he is unable to
pay the tine and costs adjudged against him, he may. work in the
county jail industries program, in the workhouse, or on the county
The Honorable Eddie Arredondo - Page 3 (GA-0424)
farm, or public improvements andmaintenanceprojects ofthe county
or a political subdivision located in whole or in part in the county, as
provided in [article 43. IO]
Id. art. 43.09(a). To the extent article 43.09 does not specifically authorize the establishment of a
work program, it incorporates article 43.10. See id. (“as provided in the succeeding article”).
And third, section 351.201 of the Local Government Code expressly authorizes a county
commissioners court “by order” to “establish a county jail industries program” to, among other
things, produce “articles and products” to be distributed to “nonprofit organizations that provide
services to the general public and enhance social welfare and the general well-being of the
community.” TEX. LOC. GOV'T CODE ANN. § 351.201(a), (b)(3)(B) (Vernon 1999). In the order
establishing the county jail industries program, a commissioners court shall, with the sheriffs
approval, designate the county official or officials responsible for managing the program and
for determining which inmates may participate in the program. Id. 5 351.201(c); see also id.
§ 351.201(d) (stating that the commissioners court’s order may provide for, among other things, an
advisory committee and procedures for determining the sale price for county jails industry products).
The program “may be operated at the county jail, workfarm, or workhouse or at any other suitable
location.” Id. $ 351.201(e).
You believe that the reference to a work program in article 43.10 1(a) refers to programsthat
article 43.10 recognizes: a county jail industries program established under section 351.201, Local
Government Code, or a manual labor program established under article 43.10. See Request Letter,
supranote 1, at 1; supra at p. 2 (laying out article 43.10). In your view, article 43.101 thus “expands
the pool of potential jail inmates who may be trustees from those that are convicted of offenses and
required to work” under article 43.10 to include those who volunteer under article 43.101(a).
Request Letter, supra note 1, at 1. In addition, as you see it, those who volunteer under article
43.10 1(a) may work for anonprofit organization only ifthe commissioners court has determined that
the organization provides a public service to the county or to a political subdivision located in the
county. See id.
You indicate that the Sheriffs’ Association of Texas holds a “second line of thought,”
however. Id. You relate the Sheriffs’ Association’s view:
Their belief is that [articles] 43.10 and 43.101 are separate and
unrelated statu[t]es. Since [Attorney General Opinion] GA-0261 and
H.B. 129 of the 79th Texas Legislature refer to [article] 43.10 only,
volunteer jail inmate trustees under [article] 43.101 may work on
projects for nonprofit organizations without the involvement of a
county commissioners[] court. Further, because [article] 43.101 gives
no specific guidance or reference to what constitutes a “work program
operated by the sheriff,” a county sheriff may create any type of
volunteer work program he/she deems appropriate for persons
awaiting trial or transfers to [the Texas Department of Criminal
The Honorable Eddie Arredondo - Page 4 (GA-0424)
Justice], including one [that] allows the work for nonprofit
organizations without the involvement of a county commissioners[]
court.
Id. at l-2. You ask us to resolve the difference of opinion.
Attorney General Opinion GA-0261, issued in 2004, determined that article 43.10(4), as it
existed at that time, did not “authorize a county to use inmate labor on fimd[-Iraisers that are a joint
venture between a county and nonprofit agency.” Tex. Att’y Gen. Op. No. GA-0261 (2004) at 3.
At that time, article 43.1 O(4) stated only that inmates “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.” See Act of May 20, 1993,73d Leg., R.S., ch. 578, § 3,
1993 Tex.Gen.Laws2188,2190,amendedbyActofMay26,2005,79thLeg.,R.S.,ch. 1187,s 1,
2005 Tex. Gen. Laws 3901, 3901-02. House Bill 129, which the legislature adopted in 2005,
directly responded to Attorney General Opinion GA-0261 by “explicitly authorizing the use of
offender labor for nonprofit organizations” after the commissioners court has made certain
requisite findings. HOUSERESEARCHORG.,BILLANALYSIS,T~~. H.B. 129,79th Leg., R.S. (2005);
see Act of May 26,2005,79th Leg., R.S., ch. 1187, § 1,2005 Tex. Gen. Laws 3901,3901-02. The
bill sought to ensure that labor would be used only to serve a public purpose “by requiring that a
nonprofit organization be recognized by federal and state law as a nonprofit and by requiring county
commissioners to determine that the organization provided a public service to the county or a local
political subdivision.” HOUSE RESEARCHORG., BILL ANALYSIS, Tex. H.B. 129, 79th Leg., R.S.
(2005) As you aver, neither Attorney General Opinion GA-0261 nor House Bill 129 refers to article
43.101. See Request Letter, supra note 1, at 1 (stating that the opinion and the bill “refer to [article]
43.10 only”).
The powers of a commissioners court and a sheriff are similar in that each may exercise only
those powers that the state constitution and statutes confer, either explicitly or implicitly. Compare
TEX. CONST. art. V, § 18 (providing that a county commissioners court “shall exercise such powers
and jurisdiction over all county business, as is conferred by this Constitution and the laws of the
State”); City of,S’qn Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003) (stating that a
commissioners court may exercise only those powers expressly given by either the Texas
Constitution or the Legislature), with ‘RX. CONST. art. V, 5 23 (stating that a sheriffs “duties
shall be prescribed by the Legislature”); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)
(stating that a sheriff lacks authority to enter a contract unless the sheriff is “specially so authorized
to do by statute”); Fort Bend County Wrecker Ass’n v. Wright, 39 S.W.3d 421, 425-26 (Tex.
App.-Houston [lst Dist.] 2001, no pet.) (determining that a sheriff may make reasonable rules to
assist in executing the sheriffs statutory authority to make nonconsensual tows, but has no power
to make ordinances).
A county or a sheriff has authority to establish a work program only under article 43.10 of
the Code of Criminal Procedure or section 35 1.201 of the Local Government Code. Article 43.101,
which refers to a “work program operated by the sheriff,” does not itself authorize a county or a
sheriff to establish a work program. See TEX. CODE GRIM. PROC. ANN. art. 43.101 (Vernon Supp.
2005).
The Honorable Eddie Arredondo - Page 5 (GA-0424)
Construing the phrase “work program” in article 43.10 1(a) to refer only to a county jail
industries program or a manual labor program recognized in articles 43.09 and 43.10 appears
consistent with the legislative history of the 1989 bill that, when adopted, added article 43.10 1 to the
Code of Criminal Procedure.* See Act of May 22, 1989,71st Leg., RX, ch. 753, 3 3, 1989 Tex.
Gen. Laws 3336,3337-38. This 1989 bill proposed apackage of amendments to articles 43.09 and
43.10 and the addition of article 43.101. See id. The stated purpose of the bill appears in relevant
part to have been to allow pretrial detainees to participate in the work programs already available to
county jail inmates under article 43.10. See HOUSE COMM. ON COLJNTY AFFAIRS, BILL ANALYSIS,
Tex.H.B. 1312,71stLeg.,R.S. (~~~~);~~~~~~~HOU~ERE~EARCHORG.,BILLANALYSIS,T~~. H.B.
1312, 71st Leg., R.S. (1989). Nothing in the printed legislative history evidences an intent to
authorize a county to establish a work program separate from those to which article 43.09 or article
43.10 refer.
We consequently conclude that a county or the county sheriff may operate only a county jail
industries program under section 351.201 of the Local Government Code or a manual labor work
program under article 43.09 or 43.10 of the Code of Criminal Procedure. For that reason, in answer
to your first question, we conclude that defendants who volunteer under article 43.101 to perform
manual labor may work for a nonprofit organization only if, in accordance with article 43.10(4) and
article 43.09 by incorporation, (1) the nonprofit organization is tax exempt under section 501(c)(3)
of the Federal Internal Revenue Code of 1986 and (2) “at the sheriffs request, the commissioners
court” has “determine[d] that the nonprofit organization provides a public service to the county or
to a political subdivision located” wholly or partly in the county. TEX. CODE GRIM.PROC. ANN. art.
43.10(4) (Vernon Supp. 2005). Similarly, if an inmate volunteers under article 43.101 to work in
a county jail industries program established under section 351.201 of the Local Government Code
and recognized in articles 43.09 and 43.10, the program may produce goods only for “nonprofit
organizations that provide services to the general public and enhance social welfare and the general
well-being of the community.” TEX. Lot. GOV’T CODE ANN. 5 351.201(b)(3)(B) (Vernon 1999).
Our interpretation ensures that inmates work only on projects that benefit the public, not private
projects that serve only private purposes.
And in answer to your second question, we conclude that a sheriffs only authority to operate
a work program is that provided by article 43.09 or 43.10, Code of Criminal Procedure, or section
3 5 1.20 1, Local Government Code. Thus, a sheriff may not “use jail inmate trustees on. projects
for nonprofit organizations” except through a work program operated consistently with article
43.09 or 43.10 or a county jail industries program operated consistently with an order entered under
section 351.201.
%ction 35 1.201 of the Local Govenment Code was not adopted until 1993. See Act of May 20, 1993,73d
Leg., R.S., ch. 578, 5 1, 1993 Tex. Gen. Laws 2188,2188-89.
The Honorable Eddie Arredondo - Page 6 (GA-0424)
SUMMARY
The phrase “workprogram” as used in article 43.101 (a) of the
Code of Criminal Procedure refers to a county jail industries program
or other work program that a county has established under article
43.10 of the Code of Criminal Procedure or section 35 1.20 1 of the
Local Government Code. A sheriffmay operate a work program only
as authorized by articles 43.09 and 43.10, Code of Criminal
Procedure, and section 351.201, Local Government Code.
Accordingly, defendants who volunteer for a work program under
article 43.10 1 may perform work or produce goods for a nonprofit
organization only if the organization complies with article 43.10(4)
or section,351,201(b)(3)(B). C onversely, a sheriff may not “use jail
inmate trustees on. projects for nonprofit organizations” except
through a work program operated consistently with article 43.09 or
43.10 or a county jail industries program operated consistently with
an order entered under section 3 5 1.20 1.
BARRY R. MCBEE
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S FULLER
Chair, Opinion Committee
Kymberiy K. Oltrogge
Assistant Attorney General, Opinion Committee