By: Murr H.B. No. 4207
A BILL TO BE ENTITLED
AN ACT
relating to private vendors for correctional facilities and
services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sec. 495.001. AUTHORITY TO CONTRACT. is amended
to read as follows:
(a) The board may contract with a private vendor or with the
commissioners court of a county for the financing, construction,
operation,or maintenance, or management of a secure correctional
facility.
(b) A facility operated, maintained, and managed under this
subchapter by a private vendor or county must:
(1) hold not more than an average daily population of
1,1502,000 inmates;
(2) comply with federal constitutional standards and
applicable court orders; and
(3) receive and retain, as an individual facility,
accreditation from the American Correctional Association.
(c) A facility authorized by this subchapter may be located
on private land or on land owned by the state or a political
subdivision of the state. The board may accept land donated for that
purpose.
(d) The population requirements imposed by Subsection
(b)(1) do not apply to a facility that is under construction or
completed before April 14, 1987.
(e)(d) The board shall give priority to entering contracts
under this subchapter that will provide the institutional division
with secure regionally based correctional facilities designed to
successfully reintegrate inmates into society through preparole,
prerelease, work release, and prison industries programs.
(f) (e) Notwithstanding Subsection (b)(1), a facility that
before December 1, 1991, was operated, maintained, and managed
under this subchapter by a private vendor or county may not hold
more than an average daily population of 500 inmates, unless the
commissioners court of the county in which the facility is located
expresses in a resolution on the subject that the limit on
population imposed by this subsection should not apply to the
facility.
(f) Any contract that is in existence between the state and
a private vendor for operation or management of a secure
correctional facility as of December 31, 2020, shall remain valid
until it expires on its own terms, without invoking any additional
renewal provisions.
Sec. 495.002. INMATES. The institutional division may
confine only minimum or medium security inmates in a facility
authorized by this subchapter. An inmate confined in a facility
authorized by this subchapter remains in the legal custody of the
institutional division .
Sec. 495.003. CONTRACT PROPOSALS; QUALIFICATIONS AND
STANDARDS. (a) The board may not award a contract under this
subchapter unless the board requests proposals and receives a
proposal that meets or exceeds, in addition to requirements
specified in the request for proposals, the requirements specified
in Subsections (b), (c), and (d).
(b) A person proposing to enter a contract with the board
under this subchapter must demonstrate:
(1) the qualifications and the operations and
management experience to carry out the terms of the contract; and
(2) the ability to comply with the standards of the
American Correctional Association and with specific court orders.
(c) In addition to meeting the requirements specified in the
requests for proposals, a proposal must:
(1) provide for regular, on-site monitoring by the
institutional division;
(2) acknowledge that payment by the state is subject
to the availability of appropriations;
(3) provide for payment of a maximum amount per
biennium;
(4) offer a level and quality of programs at least
equal to those provided by state-operated facilities that house
similar types of inmates and at a cost that provides the state with
a savings of not less than 10 percent of the cost of housing inmates
in similar facilities and providing similar programs to those types
of inmates in state-operated facilities;
(5) permit the state to terminate the contract for
cause, including as cause the failure of the private vendor or
county to meet the conditions required by this subchapter and other
conditions required by the contract;
(6) provide that cost adjustments may be made only
once each fiscal year, to take effect at the beginning of the next
fiscal year;
(7) have an initial contract term of not more than
three years, with an option to renew for additional periods of two
years;
(8) if the proposal includes construction of a
facility, contain a performance bond approved by the board that is
adequate and appropriate for the proposed contract;
(9) provide for assumption of liability by the private
vendor ora county for all claims arising from the services
performed under the contract by the private vendor or county;
(10) provide for an adequate plan of insurance for the
private vendor or county and its officers, guards, employees, and
agents against all claims, including claims based on violations of
civil rights arising from the services performed under the contract
by the private vendor or county;
(11) provide for an adequate plan of insurance to
protect the state against all claims arising from the services
performed under the contract by the private vendor or county and to
protect the state from actions by a third party against the private
vendor or county, its officers, guards, employees, and agents as a
result of the contract;
(12) provide plans for the purchase and assumption of
operations by the state in the event of the bankruptcy of the
private vendor or inability of the county to perform its duties
under the contract; and
(13) contain comprehensive standards for conditions
of confinement.
(d) Before the commissioners court of a county proposes to
enter into a contract under this subchapter, the commissioners
court of the county must receive the written approval of the sheriff
of the county. A sheriff may not unreasonably withhold written
approval under this subsection. A correctional facility provided by
a county under this subchapter is subject to the same standards and
requirements as a correctional facility provided by a private
vendor.
(e) The Legislative Budget Board determines the costs and
cost savings under Subsection (c)(4) and may consider any relevant
factor, including additional costs to the state for providing the
same service as a private vendor or county, indirect costs properly
allocable to either the state or the private vendor or county, and
continuing costs to the state directly associated with the
contract.
Sec. 495.004. LIMITATION ON AUTHORITY OVER INMATES. A
private vendor or county operating under a contract authorized by
this subchapter may not:
(1) compute inmate release and parole eligibility
dates;
(2) award good conduct time;
(3) approve an inmate for work, medical, or temporary
furlough or for preparole transfer; or
(4) classify an inmate or place an inmate in less
restrictive custody than the custody ordered by the institutional
division.
Sec. 495.005. CIVIL LIABILITY. A private vendor operating
under a contract authorized by this subchapter may not claim
sovereign immunity in a suit arising from the services performed
under the contract by the private vendor or county. This section
does not deprive the private vendor or the state of the benefit of
any law limiting exposure to liability, setting a limit on damages,
or establishing a defense to liability.
Sec. 495.006. CONVERSION OF FACILITY. The board may not
convert a facility into a correctional facility operated by a
private vendor or by a county if, before April 14, 1987, the
facility is:
(1) operated as a correctional facility by the board;
or
(2) being constructed by the board for use as a
correctional facility.
Sec. 495.007. LIMITATION. The board may not enter into
contracts under this subchapter for more than 5,5808,000 beds.
Sec. 495.008. AUDITING AND MONITORING CONTRACTS. (a) The
department shall develop a comprehensive methodology for enhanced
auditing and monitoring of all facilities operated under contract
with the department that house inmates of the department and
releasees under the supervision of the department. To achieve this
objective, the department shall first review existing auditing,
monitoring, and oversight capabilities of the department to
determine what further procedures and resources are necessary to
achieve this goal.
(b) The department shall ensure that all new and renewed
contracts described by Subsection (a) include:
(1) a provision that the department or a designee of
the department may conduct periodic contract compliance reviews,
without advance notice, to monitor vendor performance;
(2) minimum acceptable standards of performance
prescribed by the department that include provisions regarding the
health, safety, and welfare of inmates and releasees;
(3) a provision that if a review determines that a
vendorcounty is not in compliance with the contract, the
department may require that the county'svendor's per diem
compensation be withheld until the countyvendor meets contract
requirements or the vendor is replaced;
(4) a provision requiring a vendor not in compliance
with the contract to implement a plan of corrective action approved
by the department; and
(5) a provision under which the state is indemnified
for costs of litigation and for any damages in lawsuits alleging
that the health, safety, or welfare of an inmate or releasee in a
contract facility is not protected.
(c) The department shall complete at least one enhanced
audit for each facility described by Subsection (a), without regard
to whether the facility is operated by a public or private vendor.
The enhanced audit must include an enhanced contract compliance
review of any vendors hired by a community supervision and
corrections department to operate a facility.
(d) The department, in conjunction with an advisory
committee composed of state officials and private officials from
within the industry, shall adopt rules to implement the
requirements of this section.
(e) The department shall develop an appeals process,
incorporated by reference into all new and renewed contracts, under
which a countyvendor may appeal any imposed sanction under the
contract, with the appeals process including the right to a formal
hearing and a right to a final determination by the board.
SECTION 2. This Act takes effect September 1, 2021.