Untitled Texas Attorney General Opinion ( 2016 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
August 25, 2016
The Honorable Wiley B. McAfee Opinion No. KP-0111
District Attorney
33rd and 424th Judicial Districts Re: Whether a commissioners court may
170 l East Polk Street impose a vehicle policy that regulates the
Burnet, Texas 78611 use, deployment, recording, and tracking of
vehicles used by the sheriff (RQ-0100-KP)
The Honorable Rebecca Lange
Llano County Attorney
801 Ford Street, Room 111
Llano, Texas 78643
Dear Mr. McAfee and Ms. Lange:
Both of your request letters concern the authority of a commissioners court and the county
auditor to adopt ·and administer a county vehicle policy handbook for county officers and
employees who operate Llano County vehicles. 1 The McAfee Brief states that in January 2016,
the Llano County Commissioners Court adopted a county driver and vehicle policy handbook
"intended to apply to all vehicles operated in the course of Llano County business including
vehicles that have been allocated to the Sheriff and other elected officials." McAfee Brief at 2.
The Lange Request Letter informs us that the commissioners court repealed the January policy
handbook and replaced it with a new policy handbook adopted in April 2016. Lange Request
Letter at 1. Collectively, your questions concern two basic issues: (1) whether a commissioners
court may adopt a county vehicle policy regulating the use of county vehicles that applies to county
officers and employees, including the sheriff and employees of the sheriffs office; and (2) whether
the county auditor may access and examine county records and adopt regulations concerning
county employees and elected officials'. use of county vehicles. McAfee Request Letter at 1;
McAfee Brief at 3-5; Lange Request Letter at 2.
With respect to the first issue, the Texas Constitution grants a commissioners court "such
powers and jurisdiction over all county business, as is conferred by this Constitution" or the
Legislature. TEX. CONST. art. V, § 18(b). A commissioners court is a "county's principal
governing body," and its "powers and duties . . . include aspects of legislative, executive,
administrative, and judiCial functions." Comm 'rs Ct. of Titus Cty. v. Agan, 940 S.W.2d 77, 79
1
See generally Letter & Brief from Honorable Wiley 8. McAfee, Dist. Att'y, 33rd and 424th Jud. Dists. to
Tex. Att'y Gen. (Feb. 26, 2016), ("McAfee Request Letter" & "McAfee Brief," respectively); Letter from Honorable
Rebecca Lange, Llano Cty. Att'y, to Tex. Att'y Gen. (June 14, 2016) ("Lange Request Letter")
https ://www.texasattorneygeneral.govI opinion/requests-for-op in ion-rqs.
The Honorable Wiley B. McAfee (KP-0111)
The Honorable Rebecca Lange
Page 2
(Tex. 1997). A commissioners court's responsibility for county business and to make the county's
budget is a legislative function, and the commissioners court has broad discretion to oversee the
county's fiscal operations and policies. Griffin v. Birkman, 266 S.W.3d 189, 194-95 (Tex. App.-
Austin 2008, pet. denied). Duties expressly assigned to the commissioners court include the
implied authority to exercise powers necessary to accomplish those duties. City ofSan Antonio v.
City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003).
At the same time, the constitution and statutes grant other independent, elected county
officers a sphere of county authority "within which the Commissioners Court may not interfere or
usurp." Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961). This allocation of
the county's authority to the commissioners court and to other county officers creates a "delicate
system of checks and balances." Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App.-Dallas
1976, writ dism'd). The limitation on a commissioners court's powers with respect to other elected
county officials derives from "the policy that elected officers ... discharge the public trust and
carry the responsibility for the proper discharge of that trust." Abbott v. Pollock, 946 S.W.2d 513,
517 (Tex. App.-Austin 1997, writ denied). However, an elected county official's exclusive
sphere of authority consists only of the officer's core duties under the Texas Constitution and
statutes. See Griffin, 266 S.W.3d at 197.
The constitution and statutes define the sphere of authority of a county sheriff. TEX.
CONST. art. V, § 23; see generally Tex. Att'y Gen. Op. No. KP-0003 (2015) (discussing sheriff's
constitutional and statutory powers). The sheriff's foremost responsibility is to enforce the law
within the county as conservator of the peace and keeper of the county jail. See TEX. CODE CRIM.
PROC. art. 2.17; TEX. Loe. Gov'T CODE § 351.041. The sheriff's law enforcement authority
implicitly includes "reasonable authority necessary to attain the end result." Fort Bend Cty.
Wrecker Ass 'n v. Wright, 39 S.W.3d 421, 425 (Tex. App.-Houston [1st Dist.] 2001, no pet.).
The commissioners court and the sheriff both possess authority concerning the county
vehicles allocated to the sheriff, and to some degree, their respective spheres of authority intersect.
The commissioners court's authority with respect to county vehicles derives primarily from its
budgetary discretion to determine the vehicles and other equipment to be allocated to county
officers such as the sheriff. See Tex. Att'y Gen. Op. Nos. GA-0480 (2006) at 2 (observing that
"patrol vehicles allocated to a sheriff by a commissioners court are tools to be used by the sheriff
to perform the sheriff's law enforcement duties"); JC-0214 (2000) at 2 ("The principal power of
the commissioners court with respect to other county officers like the sheriff is the power of the
purse strings."). A county vehicle allocated to a county officer or employee remains county
property, and therefore the commissioners court's authority with respect to the county vehicle
continues after the vehicle has been allocated to the sheriff. See Tex. Att'y Gen. Op. Nos. GA-0158
(2004) at 4 ("The sheriff's vehicles belong to the county, which acts through its commissioners
The Honorable Wiley B. McAfee (KP-0111)
The Honorable Rebecca Lange
Page 3
court."); GA-0308 (2005) at 2-3 (determining that, in particular circumstances, a commissioners
court may reduce the number of vehicles allocated to the sheriff). 2
In addition to a commissioners court's general fiscal authority, various statutes provide
specific authority to commissioners courts concerning aspects of county vehicle ownership and
use. For example, a commissioners court possesses general authority to provide insurance for
county-owned vehicles. TEX. C1v. PRAC. & REM. CODE § 101.027(a), (c) (generally authorizing
governmental units to purchase insurance but limiting its authority to require an employee to
purchase liability insurance as a condition of employment); see generally Tex. Att'y Gen. Op. No.
MW-490 (1982) (determining that counties with a population of less than 1.4 million have the
authority but not the duty to purchase liability insurance for county motor vehicles). And the
commissioners court has general authority to approve markings on county vehicles, consistent with
statutory regulations. See TEX. TRANSP. CODE§§ 721.004(a), .005(b)(l)(B); Tex. Att'y Gen. Op.
No. GA-0158 (2004) at 4 (stating that "the commissioners court exercises ultimate authority over
the content, design, or placement of any particular decal").
However, a commissioners court's oversight authority does not permit it to interfere with
or usurp the sheriffs authority to use the vehicles, personnel, and other resources that have been
allocated to the sheriff to perform the duties of that office. See Tex. Att'y Gen. Op. No. GA-0480
(2006) at 4. In particular, a commissioners court generally may not interfere with the sheriffs
responsibility to deploy law enforcement officers and vehicles. See Weber v. City ofSachse, 591
S.W.2d 563, 567 (Tex. Civ. App.-Dallas 1979, writ dism'd) (determining that the sheriffs
"decisions as to the deployment of law enforcement officers within the county are left to his
discretion and judgment since this matter is not specifically prescribed by law"); Tex. Att'y Gen.
Op. No. JC-0214 (2000) at 5 (determining that a commissioners court does not possess the
authority to "micro-manage [the sheriffs] deployment of the fleet of cars placed at his disposal").
Disciplining deputies also falls within the sheriffs sphere of authority, regardless of whether a
county vehicle is involved. See TEX. Loe. Gov'T CODE § 85.003(c), (f) ("a deputy serves at the
pleasure of the sheriff' with certain limitations). Thus, a commissioners court may not adopt a
county vehicle policy that unreasonably interferes with or usurps the sheriffs authority to use the
vehicles, personnel, and other resources allocated to the sheriff to perform the duties of that office.
See Tex. Att'y Gen. Op. No. JC-0239 (2000) at 4 (stating that "[a] commissioners court that adopts
2
While a commissioners court assigns county vehicles to the sheriff, a sheriff may also receive a vehicle
forfeited to the state under chapter 59 of the Code of Criminal Procedure "to maintain, repair, use, and operate [the
vehicle] for official purposes," pursuant to an agreement between the attorney representing the state and the law
enforcement agency. TEX. CODE CRIM. PROC. art. 59.06(b). Article 59.06 assigns duties to a commissioners court
but does not address formulation of policy concerning such a vehicle. See id. art. 59 .06(b- I) (commissioners court
may revoke a sheriff's loan of a forfeited vehicle to another agency or district), (d) (forfeiture proceeds budget to be
submitted to the commissioners court). Nevertheless, it is conceivable that a sheriff's use of a forfeited vehicle could
implicate matters within the commissioners court's authority, particularly if such use impacts the fiscal operations of
the county.
The Honorable Wiley B. McAfee (KP-0111)
The Honorable Rebecca Lange
Page 4
a policy to keep employees from following their supervising county official's instructions [might]
unlawfully interfere in the official's sphere of authority").
Just as the commissioners court may not usurp or unreasonably interfere with the sheriffs
core constitutional and statutory duties, however, the sheriff may not frustrate the commissioners
court in the performance of its responsibilities. See Tex. Att'y Gen. Op. Nos. JC-0214 (2001) at
6-7 (determining that a sheriff may not interfere with the commissioners court's budgetary
authority by not turning in an old vehicle); JM-910 (1988) at 10 (determining that county officers
were required to comply with requirements of a county personnel policies manual "so long as those
requirements do not interfere with the proper operation of the other constitutional or statutory
county ... offices"). In particular matters, a commissioners court may establish broad operational
guidelines provided they do not unreasonably interfere with the performance of an independent
officer's official duties. See Tex. Att'y Gen. Op. Nos. GA-1018 (2013) at 2-3 (commissioners
court may establish reasonable office use policy); JM-1098 (1989) at 2 (determining that whether
a commissioners court may promulgate smoking regulations in county jail depends on particular
facts); H-1190 (1978) at 2-3 (determining that a commissioners court may provide broad
operational guidelines applicable to a jail).
Both request letters ask about the commissioners court's authority to adopt the specific
policies in the original and subsequent county driver and vehicle policy handbooks. McAffee
Request Letter at 1; McAfee Brief at 3-5; Lange Request Letter at 1. We are unable to provide
you with an item-by-item review of either handbook. In Attorney General Opinion GA-0994, this
office observed that in the event the sheriffs office policy and the commissioners court's county
policy conflict, determining which policy prevails "would require an analysis of the specific
subject of the policies to determine whether, under the facts and applicable law, the sheriff or the
commissioners court possesses final policymaking authority." Tex. Att'y Gen. Op. No. GA-0994
(2013) at 2 n.2. Such an analysis is not within the scope of an attorney general opinion because
this office does not construe county ordinances or policies or resolve fact questions, which are
matters for the commissioners court to determine in the first instance, subject to judicial review.
See Tex. Att'y Gen. Op. No. JM-1098 (1989) at 2-3 (declining to answer whether the
commissioners court's broad operational guidelines prevail over the sheriffs rules concerning the
operation of the jail); see also Tex. Att'y Gen. L0-93-107 at 1 ("It is not within the purview of
this office to construe local governmental bodies' personnel manuals[.]"). Ultimately, whether a
particular county vehicle policy may apply to the sheriffs office depends on ( 1) whether the policy
is within the authority of the commissioners court and, if so, (2) whether the policy usurps or
unreasonably interferes with the performance of the sheriffs constitutional or statutory duties. See
Tex. Att'y Gen. Op. No. GA-1018 (2013) at 2-3.
Ms. Lange also asks whether a county auditor possesses the authority to access and
examine county records and adopt and enforce regulations "to ensure" county vehicles are used
for "legitimate public purposes" and "to protect the county against legal claims and excessive or
improper use of county equipment." Lange Request Letter at 2. While not elected, a county
auditor nevertheless possesses "an impressive array of independent administrative duties and
discretionary powers." Comm 'rs Ct. ofHarris Cty. v. Fullerton, 596 S.W.2d 572, 576 (Tex. Civ.
The Honorable Wiley B. McAfee (KP-0111)
The Honorable Rebecca Lange
Page 5
App.-Houston [l st Dist.] 1980, writ ref d n.r.e.). Like other county officials, county auditors
have the powers the law expressly grants and the implied powers necessary to perform the powers
expressly granted. See Tex. Att'y Gen. Op. No. GA-1002 (2013) at 1. The Local Government
Code grants the auditor "general oversight of the books and records of a county, district, or state
officer authorized or required by law to receive or collect money or other property that is intended
for the use of the county or that belongs to the county." TEX. Loe. Gov'T CODE§ 112.006(a). The
auditor possesses a right of "continual access" to all records of officers concerning county financial
matters. Id. § 115.001. The county auditor's oversight duties authorize the auditor to examine an
officer's records concerning not only county money but also county property. See Tex. Att'y Gen.
Op. No. GA-1002(2013) at 2. The auditor must "see to the strict enforcement of the law governing
county finances." TEX. Loe. Gov'T CODE § 112.006(b). The auditor may impose reasonable
reporting requirements on county officers in aid of the auditor's fiscal examination and reporting
duties. See Tex. Att'y Gen. Op. No. JM-1275 (1990) at 2-3.
A county auditor's authority to impose requirements on other county officers is limited to
that necessary to the performance of the auditor's duties, however. A county auditor may not
access records of a county officer that do not pertain to the auditor's duty to investigate and report
on county financial matters. See Tex. Att'y Gen. Op. No. JM-1186 (1990) at 4-5 (determining
that county auditor could not require a constable to provide a monthly record of civil papers
received and served when no fee was involved). Also, a county auditor may not exercise the right
of access to an officer's records in a manner that divests the officer of reasonable control over the
records. Tex. Att'y Gen. Op. No. GA-1002 (2013) at 2-3. Finally, a county auditor's authority to
"see to the strict enforcement of the law" is limited to laws governing county finances. TEX. Loe.
Gov'T CODE§ 112.006(b); see also Tex. Att'y Gen. Op. Nos. JM-1186 (1990) at 4 ("[I]t is not
generally within the province of the auditor to ensure that county officers and employees are
complying with the duties of their office or employment imposed on them by law where such
efforts are not necessary to the accomplishment of the auditor's statutory duties."); M-756 (1970)
at 5 (county auditor not entitled to examine a sheriffs records to determine whether prisoners were
released before their sentences ended). Thus, whether a county auditor may impose a requirement
on other county officers depends on whether the requirement (1) is reasonably necessary to the
performance of an auditor's duties and (2) does not usurp or unreasonably interfere with the
performance of the officer's constitutional or statutory duties. 3 See Tex. Att'y Gen. Op. No. GA-
07 44 (2009) at 3 (determining that an auditor may not adopt requirements that would usurp or
unreasonably interfere with another county officer's statutory authority).
3
A commissioners court may assign appropriate responsibilities to a county auditor in addition to the
auditor's statutory duties. See Agan, 940 S.W.2d at 80-81 (determining that a commissioners court could delegate
to a county auditor "a function that the Legislature has not exclusively delegated to ... another appropriate county
official"). However, a commissioners court may not grant a county auditor authority that usurps or unreasonably
interferes with another independent officer's performance of constitutional or statutory duties. See id. at 82; Tex.
Att'y Gen. Op. No. JM-1074 (1989) at 4 (determining that a commissioners court cannot confer on an agent or officer
authority the court itself cannot exercise).
The Honorable Wiley B. McAfee (KP-0111)
The Honorable Rebecca Lange
Page 6
SUMMARY
A commissioners court may enact county vehicle policies
applicable to a vehicle used by the sheriff only to the extent that it
does not unreasonably interfere with the sheriffs constitutional or
statutory duties. Whether the sheriff or the commissioners court
possesses final policymaking authority with respect to a specific
vehicle policy will depend on specific facts and applicable law, the
determination of which is not within the scope of an attorney general
opm1on.
A county auditor may access county records pertaining to the
use of county vehicles and impose vehicle use requirements on other
county officers only in aid of the auditor's fiscal examination and
reporting duties and only to the extent the requirements do not
unreasonably interfere with the officer's constitutional or statutory
duties.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee