ORDER NO. 30801
INMATE WORK PROGRAM FOR DESIGNATED 501 C3 ORGANIZATIONS
Came to be heard this the 14th day of April, 2008, with a motion made by
Commissioner Letz, seconded by Commissioner Oehler. The Court unanimously
approved by vote of 4-0-0 to:
Grant the Sheriff approval to use the Inmate Work Program to assist Dietert Center
and the Hill Country Shooting Sports Center, as the 2 entities provide a public
service to the County.
~o~ 1
~, a ~~
COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND TEN COPIES OF THIS REQUEST
AND DOCUMENTS TO BE REVIEWED BY THE COURT.
MADE BY: W.R Hierholzer OFFICE: Kerr County Sheriffs Office
MEETING DATE: April I4, 2008 TIME PREFERRED:
SUBJECT:
Consider, discuss and take appropriate action concerning using the inmate work program far designated
SO1C3 organizations.
EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON)
NAME OF PERSON ADDRESSING THE COURT: Sheriff Hierh lzer
ESTIMATED LENGTH OF PRESENTATION: 5 minutes
IF PERSONNEL MATTER -NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and
552, Government Code, is as follows:
Meeting scheduled for Mondays: 5:00 P.M. previous Tuesday.
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON:
All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been
prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be
appreciated and contribute towards you request being addressed at the earliest opportunity. See Agenda Request
Rules Adopted by Commissioners' Court.
April 14, 2008
TO: Kerr County Judge Pat Tinley and
Kerr County Commissioners' Court
FROM: Sheriff W.R. Hierholzer
RE: Personnel Issue
Consider, discuss and take appropriate action concerning using the inmate
work program for designated 501 C3 organizations.
'~
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 1, 2006
The Honorable Eddie Arredondo
Burnet County Attorney
Burnet County Courthouse
220 South Pierce
Burnet, Texas 78611
Dear Mr. Arredondo:
Opinion No. GA-0424
Re: Use of county jail inmate labor on projects
for nonprofit organizations (R.Q-0406-GA)
You ask two questions relating to the use of county jail 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 CRrM. PROC. ANN.
arts. 43.10(4), .101(a) (Vernon Supp. 2005). You ask second whether "outside of article 43.10 a
county sheriff has "legal authority to use [county] jail inmate trustees on any projects, uzcluding
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 sheriffthat uses the labor of convicted defendants." TEx. CODE CRINI.
PROC. ANN. art. 43.101 {a) (Vernon Supp. 2005); see also id. art. 43.101(b) (authorizing a sheriff to
accept as a volunteer only defendants who have not engaged in or are not accused of engaging in
violent behavior}; TEx. GOVT CODE ANN. § 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 CRIM.
PROC. ANN. arts. 43.09(a), .10 (Vernon Supp. 2005); TEx. Loc. Gov'T CODE ANN. § 351.201(a)
(Vernon 1999}.
`See Letter from Honorable Eddie Arredondo, Burnet County Attorney, to Honorabie Greg Abbott, Attorney
General of Texas (Oct. 18, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.fx.us)
[hereinafter Request Letter].
The Honorable Eddie Arredondo -Page 2 (GA-0424)
First, under article 43.10, 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 CRIM. 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(1), 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 qualifies 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 sheriff s 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 fines 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 j ail after
conviction of a felony for which a fine is imposed, if he is unable to
pay the fine 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 and maintenance projects ofthe county
or a political subdivision located in whole or in part in the county, as
provided in [article 43.I0] ... .
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. G~V'T CoDEANav. § 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. § 351.201(c); see also id.
§ 3 51.201(d) (stating that the commissioners court's oxder may provide for, among other things, an
advisory committee and procedures for determining the sale price for county jail industry products).
The program "may be operated at the county jail, workfarm, or workhouse or at any other suitable
location." Id. § 351.20I (e).
You believe that the reference to a work program in article 43.101(a) refers to programs~that
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,
supra note 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
43.101(a) may work for a nonprofit organization only if the 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 commissioners0 court. Further, because [article].43.1 O1 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 helshe 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 1-2. 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 onfund[-]raisers 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 43.10(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. 57$, § 3,
1993 Tex. Gen. Laws 2188, 2190, amended by Act of May 26, 2005, 79th Leg., R.S., ch. 1187, § 1,
2005 Tex. Gen. Laws 3901, 3901-02. House Bill 129, which the legislature adopted in 2006,
directly responded to Attorney General Opinion GA-0261 by "explicitly authorizing the use of
offender labor for ... nonprafit organuzatians" after the commissioners court has made certain
requisite findings. HOUSE RESEARCH ORG., BII.L ANALYSIS, Tex. H.B. 129, 79th Leg., R.S. (2005);
see Act of May 26, 2005, 79th Leg., RS., 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 RESEARCH ORG., BII,L ANALYSIS, Tex. H.B. 129, 79th Leg., R.S.
(2005) As you aver, neither Attorney General Opinion GA-0261 nor House Bi11129 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. CotvsT. 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 San 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), tivith TEx. CONST. art. V, § 23 (stating that a sheriff's "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 Assn v. Wright, 39 S.W.3d 421, 425-26 (Tex.
App.-Houston [1st Dist.} 2001, no pet.) {determining that a sheriff may make reasonable rules to
assist in executing the sheriff s 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 351.201 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 CRIM. PROC. ANN. art. 43.101 (Vernon Supp.
2005).
The Honorable Eddie Arredondo -Page 5 (GA-0424)
Construing the phrase "work program" in article 43.101(x) 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 43.101 to the
Code of Criminal Procedure.2 See Act of May 22, 1989, 71st Leg., R.S., ch. 753, § 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 pxetrial detainees to participate in the work programs already available to
county jail inmates under article 43.10. See HOUSE COMM. ON COUNTY AFFAIRS, BILL .ANALYSIS,
.Tex. H.B.1312, 71st Leg., R.S. {1989); see also HoUSERESEARCHORG.,BILLANALYSIS, Tex. 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 sheriffmay 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 sheriff's 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 imnate 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. LOC. GOVT CODE ANN. § 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 sheriff s only authority to operate
a work program is that provided by article 43.09 or 43.10, Code of Crinunal Procedure, or section
351.201, Local Government Code. Thus, a sheriffmay 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.
ZSection 351.201 of the Local Government Code was not adopted until 1993. See Act of May 20, 1993, 73d
Leg., R.S., ch. 578, § 1, 1993 Tex. Gen. Laws 2188, 2188-89.

The Honorable Eddie Arredondo -Page 6 (GA-0424)
S U M M A R Y
The phrase "work.program" 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
43.14 of the Code of Criminal Procedure or section 351.201 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 43.101 may perform work or produce goods for a nonprofit
organization only if the organization complies with article 43.10{4)
ox section 351.201(b)(3)(B}. Conversely, 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.
BARRY R. MCBEE
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
V
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
truly yours,

PUBLIC SAFETY
the community justice assistance division of the Texas
Department of Criminal Justice.
Added by Acts 1989, 71st Leg., ch. 785, § 3.03, eff. Sept. 1,
1989.
[Sections 351.187 to 351.200 reserved for expansion]
SUBCHAPTER I. COUNTY JAIL
INDUSTRIES PROGRAM
§ 351.201. County Jail Industries Program
(a) A commissioners court by order may establish a
county jail industries program. The sheriff may allow
inmate participation in the county jail industries pro-
gram in carrying out his constitutional and statutory
duties.
(b) The purposes for which a county jail industries
program may be established are to:
(1) provide adequate, regular, and suitable em-
ployment for the vocational training of inmates;
(2) reimburse the county for expenses caused by
crimes of inmates and the cost of their confine-
~1'Ient; or
(3) provide for the distribution of articles and
products produced under this subchapter to:
(A) offices of the county and offices of political
subdivisions located in whole or in part in the
county; and
(B) nonprofit organizations that provide services
to the general public and enhance social welfare and
the general well-being of the community.
(c) A commissioners court, in an order establishing
a county jail industries program, shall, with the ap-
proval of the sheriff:
(1) designate the county official or officials re-
sponsible for management of the program; and
(2) designate the county official or officials re-
sponsible for determining which inmates are al-
lowed to participate in a county jail industries pro-
gram.
(d) An order of a commissioners court establishing
a county jail industries program, though not limited
to, may provide for any of the following:
(1) an advisory committee;
(2) the priorities under which the county jail in-
dustries program is to be administered;
(3) procedures to determine the articles and
,+roducts to be produced under this subchapter;
§ 351.901
(4) procedures to determine the sales price of
articles and products produced under this subchap-
ter; and
(5) procedures for the development of specifica-
tions for articles and products produced under this
subchapter.
(e) A county jail industries program maybe operat-
ed at the county jail, workfarm, or workhouse or at
any other suitable location.
(f) An inmate does not have a right to participate in
a county jail industries program, and neither the
sheriff, county judge, or commissioners nor any other
county official or employee may be held liable for
failing to provide a county jail industries program.
Added by Acts 1993, 73rd Leg., ch. 578, § 1, eff. June 11,
1993.
§ 351.202. Revenue
Money received from the operation of a county jail
industries program shall be deposited in the general
revenue fund of the county to be used as reimburse-
ment for the cost of inmate confinement. The cost to
a county for an inmate's participation in a county ja~7
industries program is considered to be a part of the
cost of confinement of the inmate.
Added by Acts 1993, 73rd Leg., ch. 578, § 1, eff. June 11,
1993.
[Sections 351.203 to 351.900 reserved for expansion]
SUBCHAPTER Z. MISCELLANEOUS LAW
ENFORCEMENT PROVISIONS
§ 351.901. Donation to Certain Crime Stoppers
and Crime Prevention Organizations
(a) In this section:
(1) "Crime stoppers organization" means a pri-
vate, nonprofit organization or a public organization
that:
(A) is operated on a local or statewide level;
(B) accepts and expends donations for rewards to
persons who report to the organization information
about criminal activity; and
(C) forwards the information to the appropriate
law enforcement agency.
(2) "Crime prevention organization" means an or-
ganization with an advisory council consisting of
local law enforcement officers and volunteers from
the community that:
(A) is operated on a local or statewide level;
825