Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERALOFTEXAS
GREG ABBOTT
August 9,2004
The Honorable Matt Bingham Opinion No. GA-0229
Smith County Criminal District Attorney
Smith County Courthouse Re: Whether a county sheriff is authorized to
100 North Broadway, Fourth Floor enter into a contract to house federal prisoners
Tyler, Texas 75702 or to accept and dispose of federal surplus
property (RQ-0181-GA)
Dear Mr. Bingham:
You ask whether a county sheriff is authorized to enter into a contract to house federal
prisoners or to accept and dispose of federal surplus property.’
I. Backmound
You explain that your questions arise from an “Intergovernmental Services Agreement”
signed by the Smith County Sheriff as an addendum to a Cooperative Program Agreement between
Smith County and the United States Marshals Service (USMS). See Request Letter, supra note 1,
at 1. “Under the original agreement, the federal government agreed to provide moneys for the
completion of a low risk jail facility in Smith County.” Id. In exchange for the money, the USMS
“received a contractual agreement for Smith County to reserve a minimum of 50 bed spaces for use
by the [USMS] to house federal prisoners.” Id. You state that this agreement “was entered into and
signed by the Smith County Sheriff and the Smith County Judge in 1988 and had an original term
of fifteen years with an automatic renewal unless otherwise terminated.” Id. In 2002, the Smith
County Sheriffentered into “an Interlocal Cooperative Agreement” with the USMS “as a supplement
to the original agreement which is incorporated therein, which expanded the service provided to the
[USMS] by including certain transportation services to be performed by the sheriff.” Id. at l-2. The
sheriff was the only county official to sign the 2002 agreement. See id. at 2. Your letters do not
address whether the commissioners court officially authorized either of these agreements.
You also explain that the Smith County Sheriffs Office has received a large quantity of
surplus goods over a period of several years from the federal government pursuant to the contract
for housing federal prisoners. See id. at 8. The commissioners court “‘has expressed concern that
these surplus items have not been properly received into the county and that disposal of the surplus
items [has] not been authorized by the commissioners court,” Id.
‘See Letters from Honorable Man Bingham, Smith County Criminal District Attorney, to Honorable Greg
Abbott, Texas Attorney General (Feb. 4, 2004 and Feb. 7, 2004) (on tile with Opinion Committee, also available al
http://www.oag.state.tx.us)[hereinat& Request Letter and Supplemental Request Letter].
The Honorable Matt Bingham - Page 2 (GA-0229)
In light of these facts, you ask three questions:
1. Does the Sheriff, or any elected official, have authority to enter
into a binding contract with the [USMS] to house federal prisoners in
the county jail?
2. Does the [Slheriff, or any elected offtcial, have the authority to
accept surplus items provided under an agreement with the federal
government?
3. Who may dispose of surplus items provided to a county agency by
the federal government and must they be included in county
inventory?
Id. at 1. In a supplemental letter, you explain that a county commissioner objected to your initial
questions’ scope. As a result, you ask three additional, related questions:
1. Does the Smith County Sheriff, or any elected official, have the
authority to sign contracts and encumber the County without approval
of the Commissioners Court?
2. Does the Smith County Sheriff, or any elected official, have the
authority to donate, sell, trade or destroy County property without the
approval of the Commissioners Court?
3. Does the Smith County Sheriff, or any elected official, have the
authority to accept donated property without the approval from the
Commissioners Court?
Supplemental Request Letter, supra note 1, at 1.
To answer these questions, we first address your primary concern, the authority of a county
sheriff to enter a contract to house federal prisoners in the county jail, as well as the related, more
general issue regarding elected county officials’ authority to enter into contracts that bind the county.
Next, we address the authority to accept federal surplus property pursuant to a contract to house
federal prisoners. Accepting donated property on the county’s behalfraises different issues and we
address that question separately. Finally, we address the authority to dispose of county property.
II. Analvsis
A. Authority to Enter into a Contract Binding the County
1. Authority to Contract to House Federal Prisoners in the County Jail
You first ask about the sheriffs authorityto enter into a binding contract with
the USMS to house federal prisoners in the county jail. See Request Letter, sup-a note 1, at 1
The Honorable Matt Bingham - Page 3 (GA-0229)
(question 1). We assume that you are concerned about the sheriffs authority to enter into a contract
that the commissioners court has not officially authorized. See Part II.A.2, infia p. 7.
It is well established in Texas law that the commissioners court, as the governing body of the
county, “is the general business and contracting agency of the county, and it alone has authority to
make contracts binding on the county, unless otherwise specifically provided by statute.” Anderson
v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). “[A] sheriff has no authority to make contracts
that are binding on the county, except where he is specially so authorized to do by statute.” Id. A
number of statutes grant to a sheriff the authority to enter into agreements in limited circumstances.
See, e.g., TEX. GOV’T CODE ANN. 8 5 11.012 (Vernon Supp. 2004) (authorizing agreements between
sheriffs regarding the transferring and receiving of prisoners); TEX. LOC. GOV’T CODE ANN.
5 351.0415 (Vernon Supp. 2004) (authorizing sheriff to contract with a person to operate a jail
commissary). In the absence of such express authority, a sheriff may not enter into a contract. See
Anderson, 152 S.W.2d at 1085.
Your questions relate to the authority to contract with respect to the county jail’s operation.
The statutory scheme generally charges “[t]he commissioners court of a county [to] provide safe and
suitable jails for the county.” TEX. Lot. GOV’T CODE ANN. 4 351.001(a) (Vernon 1999). Under
Local Government Code chapter 351, subchapter C, which generally provides for the operation of
county jails, “[tlhe sheriff of each county is the keeper of the county jail. The sheriff shall safely
keep all prisoners committed to the jail by a lawful authority, subject to an order of the proper court.”
Id. 5 351.041(a). “The sheriff may appoint a jailer to operate the jail and meet the needs of
the prisoners, but the sheriff shall continue to exercise supervision and control over the jail.” Id.
§ 351.041(b). Absent an express statute, the authority to enter into contracts regarding the county
jail’s operation rests with the commissioners court. See, e.g., Tex. Att’y Gen. Op. No. DM-111
(1992) at 2 (the commissioners court has authority to contract with a licensed physician to provide
medical services to inmates incarcerated in county jails, and the sheriff has authority to schedule
medical services for the county jails); Tex. Att’y Gen. LO-97-030, at 2 (concluding that the
commissioners court, not the sheriff, has authority to contract regarding the provision of telephone
services to jail inmates); see also Tex. Att’y Gen. Op. No. GA-0059 (2003) at 2 (approving Attorney
General Letter Opinion 97-030 to the extent it concludes that, “because the provision of telephone
services to inmates does not fall within section 35 1.0415 [ofthe Local Government Code], ‘a sheriff
has no contracting authority regarding the provision of telephone service to inmates”‘).
We note that 18 USC. $4002 authorizes the United States Attorney General to “contract,
for a period not exceeding three years, with theproper authorities ofany State, Territory, or political
subdivision thereof, for the imprisonment, subsistence, care, and proper employment of [federal
prisoners].” 18 U.S.C. 5 4002 (2000) (emphasis added); see also id. 5 4013(a)(3) (“The Attorney
General, in support of United States prisoners in non-Federal institutions, is authorized to make
payments from funds appropriated for Federal prisoner detention for the housing, care, and
security of persons held in custody of a United States marshal pursuant to Federal law under
agreements with State or local units of government or contracts with private entities.“). In addition,
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18 USC. 5 4013(b) provides that the United States Attorney General,
in support of Federal prisoner detainees in non-Federal institutions,
is authorized to make payments . . for entering into contracts or
The Honorable Matt Bingham - Page 4 (GA-0229)
cooperative agreements with any State, territory, or political
subdivision thereof, for the necessary construction, physical
renovation, acquisition of equipment, supplies, or materials required
to establish acceptable conditions of confinement and detention
services in any State or local jurisdiction which agrees to provide
guaranteed bed space for Federal detainees within that correctional
system.
Id. 5 4013(b). We have not located any federal statute controlling which officials would constitute
the proper authorities of any “State, Territory, or political subdivision” under section 4002 or 4013.
Sections 4002 and 4013 appear to defer to state law in this regard.
You assert that section 351.043 of the Local Government Code authorizes a county sheriff
to enter into a contract to house federal prisoners in the county jail. Section 351.043 provides in
pertinent part as follows:
(a) The sheriff or jailer may receive into the county jail a
federal prisoner delivered by a federal law enforcement officer unless
the sheriff or jailer determines that receipt of the prisoner may violate
a state or federal court order, a statute, or a rule of the Commission on
Jail Standards or the Texas Board of Criminal Justice.
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(b) The sheriff or jailer shall safely keep the prisoner until the
prisoner is transferred or discharged by due course of law.
(c) The federal law enforcement ofticer on whose authority
the prisoner is received and kept is directly and personally liable to
the sheriff or jailer for the jail fees and other costs incurred in keeping
the prisoner. The fees and costs shall be estimated according to laws
regulating similar fees and costs in other cases.
TEX. Lot. GOV’T CODE ANN. 5 351.043 (Vernon 1999).*
No court has addressed whether section 35 1.043 authorizes a sheriff to enter into a contract
to house federal prisoners. In a 1990 letter opinion, however, this office concluded that section
351.043 did not authorize a sheriff to enter into a contract to house federal prisoners from
Washington, D.C. See Tex. Att’y Gen. LO-90-95, at 4-5. Attorney General Letter Opinion 90-95
observed that when the legislature intends to authorize a sheriff to enter into a contract, it does so
expressly, as it has for example in section 351.0415 regarding jail commissary contracts. See id.
at 5; see also TEX.LOC. GOV’TCODEANN. 5 351.0415 (Vernon Supp. 2004). The letteropinion also
‘See also TEX. Lot. GOV’TCODEANN. 5 351.043(d)(Vernon 1999)(“In this section, ‘federallaw enforcement
,- offker’ has the meaning assigned by 5 U.S.C. Section 8331(20).“);~5 U.S.C. 9 8331(20) (2000) (deftig “law
enforcement officer”to mean “an employee, the duties ofwhose position are primarily the investigation,apprehension,
or detention of individuals suspected or convicted of offenses against the criminal laws of the United States, including
an employee engaged in this activity who is transferred to a supervisory or administrative position”).
The Honorable Matt Bingham - Page 5 (GA-0229)
noted that the predecessor provisions to section 351.043 required a sheriff to receive federal
prisoners. See Tex. Att’y Gen. LO-90-95, at 4. The legislature amended the statute in 1981 to
provide that the sheriff “may receive” federal prisoners. See id.; see also Act of May 19,198 1,67th
Leg., RX, ch. 241, 5 1, 1981 Tex. Gen. Laws 603. Citing the 1981 legislative history, the letter
opinion concluded that “[tlhe substitution of the phrase ‘shall receive’ for the phrase ‘may receive’
was not intended by the legislature to [alffect anything other than to no longer impose on the county
sheriff the mandatory duty to admit federal prisoners into the county jail.” Tex. Att’y Gen.
LO-90-95, at 4-5.
We conclude that Letter Opinion 90-95 correctly construed section 35 1.043. A sheriffmust
have authority to keep a prisoner. See TEX. Lot. GOV’T CODE ANN. 5 351.041(a) (Vernon 1999)
(“The sheriff shall safely keep all prisoners committed to thejail by a lawful authority, subject to an
order of the proper court.“) (emphasis added). On its face, section 351.043 merely provides legal
authority for a sheriff or jailer to receive and keep a federal prisoner in the county jail. At most, it
authorizes a sheriff or jailer to house and keep individual federal prisoners as requested by a federal
officer on a case-by-case basis. It does not authorize a sheriffto enter into a contract committing the
county to house federal prisoners, reserving beds in the county jail for federal use over a term of
years. See id. 9 351.043. Indeed, the statute authorizes the sheriff or the jailer to keep and house
a federal prisoner. See id. Under section 35 1.041 (b), the jailer is an employee subject to the sheriffs
supervision and control. See id. 8 351.041(b) (“The sheriff may appoint a jailer to operate the jail
and meet the needs of the prisoners, but the sherlffshall continue to exercise supervision and control
over the jail.“) (emphasis added); see also De la Garza v. State, 579 S.W.2d 220,223 (Tex. Crim.
App. 1979) (concluding that statutory predecessor to section 351.041 “authorizes the Sheriff to
legally impose such restriction on his jailers”); Tex. Att’y Gen. Op. No. JM-1047 (1989) at 2 (“A
jailer is employed by the sheriff and subject to his supervision and control in matters involving his
duties as jailer.“). If we were to construe section 35 1.043 to authorize the sheriff to enter into a
contract, we would also have to conclude that the statute vests the jailer with the same authority. We
doubt the legislature intended to authorize ajailer, an unelected county employee under the sheriffs
control, to enter into contracts obligating the county to house federal prisoners in the county jail. See
TEX. GOV’T CODE ANN. 5 3 11.023 (Vernon 1998) (“In construing a statute, a court may consider
among other matters the: (1) object sought to be attained [and] (5) consequences of a particular
construction .“). Finally, while the legislature revisited section 351.043 in 1991 and 1997, on
neither occasion did it reject the 1990 letter opinion’s interpretation of the statute by amending
section 35 1.043 to authorize sheriffs to enter into contracts.’
You disagree with Letter Opinion 90-95 for several reasons. First, you assert that while the
legislature may not have intended section 3 5 1.043 to authorize a sheriff to enter into a contract, “the
reality of the [ 198 1] change had the effect of creating a need for contractual obligations to ensure
bed-space for federal needs.” Request Letter, supra note 1, at 2. You further assert that the
legislature could not have intended to authorize the commissioners court to enter into such a contract
because the commissioners court does not have authority over housing federal prisoners. See id.
at 3.
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‘SeeActofAug. 25,1991,72dLeg., 2dCS.,ch. 10, $11.16,1991 Tex. Gen. Laws 180,207;ActofMay 10,
1997,7Sth Leg., R.S., ch. 259, 5 10, 1997 Tex. Gen. Laws 1196, 1201.
The Honorable Matt Bingham - Page 6 (GA-0229)
However, to the extent Texas statutes address the issue, they indicate that the commissioners
court must have some authority over whether federal prisoners will be kept in the county jail.
Sections 351.001 of the Local Government Code requires a commissioners court to “provide safe
and suitable jails for the county,” TEX. Lot. GOV’T CODE ANN. 5 35 1.001 (a) (Vernon 1999), which
“must comply with the minimum standards and the rules and procedures of the Commission on Jail
Standards,“id. 5 35 1.002. Section 5 11,0093(b) ofthe Government Code authorizes the Commission
on Jail Standards (the ‘Commission”) to adopt
rules regulating the number offederalprisoners and prisoners from
jurisdictions other than Texas that are housed in a county jail, a
municipal jail, or a correctional facility operated by a private vendor
under contract with a municipality if the jail or correctional facility
houses state, county, or municipal prisoners or prisoners of another
state of the United States.
TEX. GOV’T CODEANN. § 5 11.0093(b) (V emon 1998) (emphasis added). Section 5 11.009 charges
both the sheriff and the commissioners court with reporting to the Commission regarding the
county’s compliance with Commission standards. See id. 5 511.009(a)(8), (14) (Vernon Supp.
2004). Given that the legislature has charged each commissioners court with the duty to provide for
a jail that complies with Commission standards and to report to the Commission, the legislature must
intend for commissioners courts to exercise some authority over whether and to what degree the jail
-. will house federal inmates.
In addition, section 5 11.0094 of the Government Code, which excepts from Commission
regulation a correctional facility housing only federal prisoners, suggests that the commissioners
court, not the sheriff, would enter into a contract with the federal government to house federal
prisoners:
The provisions of this chapter do not apply to a correctional
facility contracting to house only federal prisoners and operating
pursuant to a contract between a unit of the federal government and
a county, a municipality, or a private vendor. If a county,
municipality, or private vendor contracts to house or begins to house
state, county, or municipal prisoners or prisoners of another state of
the United States, it shall report to the commission before placing
such inmates in a correctional facility housing only federal prisoners.
Id. 5 5 11.0094 (emphasis added).
You also rely on the language of section 351.043(c): “The federal law enforcement officer
on whose authority the prisoner is received and kept is directly and personally liable to the sheriff
or jailer for the jail fees and other costs incurred in keeping the prisoner.” TEX. LOC. GOV’T CODE
ANN. 5 35 1.043(c) (Vernon 1999). You believe that because the federal officer is liable for fees only
to the sheriff (or the jailer) and not the commissioners court, any authority to enter into a contract
to house federal prisoners must rest with the sheriff, See Request Letter, supra note 1, at 4.
The Honorable Matt Bingham - Page 7 (GA-0229)
However, section 351.043(c) on its face requires a federal officer to pay fees to the sheriff; it does
not vest the sheriff with the authority to enter into a contract.
Moreover, the fact that the federal officer is liable to the sheriff or jailer rather than the
commissioners court for fees is not legally significant. The statutory predecessors to section
351.043(c) date from before the 1948 adoption of article XVI, section 61 of the Texas Constitution
generally abolishing fees of office4 and requiring all counties to pay sheriffs on a salary basis. See
TEX. CONST. art. XVI, 4 61(c) (“it shall be mandatory upon the Commissioners Courts to compensate
all sheriffs . . . on a salary basis”). Even prior to this requirement, courts held that fees received by
sheriffs for boarding federal prisoners were fees of office, accountable to the commissioners court
in determining the maximum salary sheriffs could retain for their services. See Orndorff. El Paso
County, 295 SW. 219,221 (Tex. Civ. App.-ElPaso 1927,writref d);Binfordv. Harris County,261
S.W. 535, 537 (Tex. Civ. App.Galveston 1924, writ refd). And significantly, the Texas
Constitution and the Local Government Code now require county sheriffs and other officials paid
on a salary basis to deposit any fees of office, fees they collect for performing their official duties,
in the county treasury. See TEX. CONST. art. XVI, 5 61(d) (“All fees earned by district, county and
precinct officers shall be paid into the county treasury where earned for the account of the proper
fund. .“); TEX. LOC. GOV’T CODE ANN. @ 154.002 (Vernon 1999) (a district, county, or precinct
officer “who is paid on a salary basis receives the salary instead of. fees the officer would
otherwise be authorized to keep”), 154.003 (“A district, county, or precinct officer who is paid an
annual salary shall charge and collect in the manner authorized by law all fees, commissions, and
other compensation permitted for official services performed by the officer. The officer shall dispose
ofthe collected money as providedby Subchapter B, Chapter 113.“); see also id. § 113.021(a) (“The
fees, commissions, funds, and other money belonging to a county shall be deposited with the county
treasurer by the officer who collects the money.“). Under these provisions, a sheriff would be
required to deposit in the county treasury any money paid by the federal government as a section
351.043 fee.
In sum, we conclude that section 35 1.043 does not authorize a sheriff to contract to house
federal prisoners in the county jail. As no other statute vests such authority in a sheriff, we conclude
that a sheriff is not authorized to enter into a contract to house federal prisoners in the county jail.
2. Commissioners Court Approval Generally
In a related question in your supplemental letter, you ask more generally about
the authority of the sheriff or any other elected official “to sign contracts and encumber the county
without approval of the commissioners court.” Supplemental Request Letter, supra note 1, at 1
(question 1); see also Request Letter, supra note 1, at 1 (question 1 asking about the authority of
4SeeAct of June 5, 1947, 50th Leg., R.S., H.R.J. Res. No. 36, 1947 Tex. Gen. Laws 1193 (proposing a
constitutional amendment to require commissioners courts to compensate on a salary basis (i) constables, deputy
constables, and precinct law enforcement officers beginning January 1, 1949, and (ii) in counties having a population
of less than 20,000, sheriffs, deputy sheriffs, county law enforcement offkers including sheriffs also performing the
duties of assessor and collector of taxes and their deputies beginning Januay 1, 1949). The statutory predecessors to
section 351.043 date from 1856. See TEX.Lot. GOV’TCODEANN.9 351.043 historical and statutory note (Vernon
1999).
The Honorable Matt Bingham - Page 8 (GA-0229)
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“any elected official . . to enter into a binding contract with the [USMS] to house federal prisoners
in the county jail”).
As we have discussed, in the absence of a statute authorizing another county official to enter
into a contract,’ the commissioners court has the sole authority to enter into contracts binding the
county. See supra p. 3. Moreover, individual commissioners court members have no authority to
bind the county by their separate action; only an action taken by the commissioners court acting as
an official body can bind the county. See Can&s v. Laughlin, 214 S.W.2d 45 1,455 (Tex. 1948);
Gano v. Palo Pinto County, 8 S.W. 634,635 (Tex. 1888). A contract made by a county is valid and
binding only if made under the authority of a resolution or order duly passed at a meeting of the
commissioners court and entered in the minutes. See, e.g., Stratton Y. County ofliberty, 582 S.W.2d
252, 254 (Tex. Civ. App.-Beaumont 1979, writ ref d n.r.e.); Wilson v. County of Calhoun, 489
S.W.2d 393,397 (Tex. Civ. AppCorpus Christi, 1972, writ ref d n. r.e.); Morrison v. Kohler, 207
S.W.2d 951,954 (Tex. Civ. App.-Beaumont 1947, writ ref d n.r.e.).
B. Authority to Accept Federal Surplus Property for the County
Next, you ask about the authority of the sheriff to accept federal surplus property
pursuant to the USMS contract. See Request Letter, supra note 1, at 1 (question 2). We note that
chapter 2175 ofthe Government Code designates the Texas Building and Procurement Commission
as the state agency to dispose of federal surplus property pursuant to a program under 40 U.S.C.
§ 549. See TEX. GOV’T CODEANN. $5 2175.361-,367 (Vernon 2000 & Supp. 2004). Because your
letter indicates that the USMS rather than the Texas Building and Procurement Commission
transferred the property, we do not address chapter 2175.
You have not identified the federal statute or regulations pursuant to which the USMS
transferred the property.6 Nor have we located any federal statute or regulation governing which
5Forstatutes that authorize individual county officialsother than the sheriffto execute contracts, see, e.g., TEX.
LOC.GOV’TCODEANN. $5 262.01l(d) (Vernon Supp. 2004) (“The county purchasing agent shall purchase all supplies,
materials, and equipment required or used, and contract for all repairs to property used, by the county or a subdivision,
officer, or employee of the county, except purchases and contracts required by law to be made on competitive bid. A
person other than the county purchasing agent may not make the purchase of the supplies, materials, or equipment or
make the contract for repairs.“),263.001(a)(Vernon 1999)(‘“Thecommissioners court of a county, by an order entered
in its minutes, may appoint a commissioner to sell or lease real property owned by the county. The sale or lease must
be made at a public auction held in accordance with this section unless this chapter provides othetise.“), (c) “(If the
real property is sold, a deed that is made on behalf of the county by the appointed ‘commissionerin conformance with
the order entered under Subsection (a) and that is properly acknowledged, proved, and recorded is sufficient to convey
the county’s interest in the property.“), 411.006(b) (“If the commissioners court determines that a seawallright-of-way
shouldbe donated, the countyjudge may convey the property in accordancewith the order ofthe commissioners court.“).
6Forexample, federal law generallyprovides that “the Administratorof General Services shall supervise and
direct the disposition of surplus property in accordance with this subtitle.” 40 U.S.C. 5 541 (2000). “An executive
agency designated or authorized by the Administratorof General Services to dispose of surplus property may do so by
sale, exchange, lease, permit, or transfer, for cash, credit, or other property, with or without warranty, on terms and
conditions that the Administrator considersproper. The agencymay execute documents to transfer title or other interest
in the property and may take other action it considers necessaryor proper to dispose of the property under this chapter.”
(continued...)
The Honorable Matt Bingham - Page 9 (GA-0229)
official in a state political subdivision is authorized to accept such property. Of course, if a federal
statute or regulation expressly authorizes a county sheriff or any other official to accept federal
surplus property, it may control. See generally U.S. CONST. art. VI, cl. 2 (Supremacy Clause);
Delta Airlines, Inc. Y. Black, 116 S.W.3d 745,748 (Tex. 2003) (discussing federal preemption of
state law).
Given our conclusion that a sheriff is not authorized to enter into a contract to house federal
prisoners in the county jail, it follows that such a contract would not authorize the sheriff to accept
federal surplus property. Moreover, we believe that, in the absence of a controlling federal statute,
title to any personal property paid by the federal government as consideration for housing federal
prisoners in the county jail would vest in the county rather than the sheriff, the jail, or the sheriffs
department. As we have discussed, in the event a sheriff or jailer kept and housed a federal prisoner
and received amonetary fee from a federal officer under section 35 1.043(c) ofthe Local Government
Code, the sheriff or jailer would be required to account for the fee as a fee of office and deposit it
in the county treasury. See Part II.A.l, supra p. 7.7 To the extent the USMS transfers federal surplus
property as consideration pursuant to a contract to house federal prisoners in the county jail, that
consideration, like any monetary consideration, would also be accountable as a fee of office. Thus,
we believe that title to anypropertypaid by a federal official as a fee under section 35 1.043(c) would
belong to the county.
In addition, we note that the legislature has specifically vested sheriffs with control over
money from certain defined sources. See, e.g., TEX. LOC. GOV’T CODE ANN. § 35 1.0415(b) (Vernon
Supp. 2004) (providing a sheriff with “exclusive control of the commissary funds”); TEX. CODE
GRIM.PROC. ANN. art. 59.06(c)(3) (Vernon Supp. 2004) (providing for the deposit of forfeited funds
in “a special fund in the county treasury if distributed to a county law enforcement agency, to be used
solely for law enforcement purposes”). The legislature has not provided the sheriff with exclusive
Id. $543. Section553,40U.S.C.,provides thattheAdministratorofGenera1 Services,“inthe Administrator’sdiscretion
and under regulations that the Administrator may prescribe, may transfer or convey to a State, or political subdivision
or instrumentality of a State, surplus real and related personal property that - (1) the Attorney General determines is
required by the transferee or grantee for correctionalfacility use under a program approved by the Attorney General for
the care or rehabilitation of criminal offenders [or] (2) the Attorney General determines is required by the transfereeor
grantee for law enforcement purposes.” Id. 9 553(b)(1)-(2). A federal regulation provides for conveying “surplusreal
and related personal property for: (a) Correctional facility purposes, if the Attorney General has determined that the
property is required for such purposes and has approved an appropriateprogram or project for the care or rehabilitation
of criminal offenders [or] (b) Law enforcement purposes, if the Attorney General has determined that the property is
required for such purposes. .” 41 C.F.R. 5 102-75.750(2003), WL 41 C.F.R. ~102-75.750.
‘see also TEX. h3C. GOV’T CODE ANN.$9 113.003 (Vernon 1999) (‘“fhe county treasurer shall receive all
money belonging to the county from whatever source it may be derived.“), 154.002 (“A district, county, or precinct
officer who is paid on a salary basis receives the salary instead of all fees, commissions, and other compensation the
officer would otherwisebe authorized to keep, except as otherwiseprovided by this subchapter.“), 154.003(“A district,
county, or precinct ofticer who is paid an annual salary shall charge and collect in the manner authorizedby law all fees,
commissions, and other compensation permitted for official servicesperformed by the officer. The officer shall dispose
of the collected money as provided by Subchapter B, Chapter 113.“);see generally Tex. Att’y Gen. Op. No. GA-0059
(2003) (concluding that revenues generated by an inmate telephone contract must be paid into the county treasury and
may be used for any legitimate county purpose).
The Honorable Matt Bingham - Page 10 (GA-0229)
authority over payments made by the federal government for housing federal prisoners in the county
jail in section 35 1.043, and no other statute supports the contention that the sheriff would control
property paid in lieu of a monetary fee.
Finally, we note that the federal law pursuant to which federal surplus property is transferred
to the county may require that the property be used by the county for certain limited purposes, such
as law enforcement or corrections. See note 6, supra p. 8. Thus, although title to federal surplus
property may not vest in the sheriff, the jail, or the sheriffs department, the sheriff, as the chief
county law enforcement officer and keeper of the county jail, would be the county official to use
such property.
C. Authority to Accept Donated Property
In a related question you ask whether “the Smith County Sheriff, or any elected
official, [has] the authority to accept donatedpropertywithout the approval from the Commissioners
Court?” Supplemental Request Letter, supra note 1, at 1 (question 3). We answer this question
generally and not with regard to any particular property that has been donated to the county or any
county office.
Local Government Code section 81.032 generallyprovides that “[t]he commissioners court
may accept a gift, grant, donation, bequest, or devise of money or other property on behalf of the
county for the purpose of performing a function conferred by law on the county or a county officer.”
TEX. Lot. GOV’T CODEANN. 5 81.032 (Vernon Supp. 2004); see also TEX. TRANSP.CODEANN.
$5 252.109 (Vernon 1999) (“A commissioners court or the road commissioners may accept
donations of labor, money, or other property to aid in building or maintaining roads in the county.“),
252.214 (“A commissioners court may accept donations of labor, money, or other property to aid in
building or maintaining roads in the county.“). Prior to section 8 1.032’s enactment, this office had
concluded that absent such express legislative authority, counties could not accept gifts of money
or other personal property to use for county purposes. See genernZly Tex. Att’y Gen. Op. No.
JC-0443 (2001) at 2; see also Tex. Att’y Gen. LO-97-032, at 2 (concluding that county may not
accept gifts of videotapes, books, or cash on behalf of alternative dispute center); Tex. Att’y Gen.
LO-88-106, at 6 (concluding that county may not collect funds and disburse them to local law
enforcement agencies to combat drug abuse in county).
By its express terms, section 8 1.032 authorizes a commissioners court to accept a donation
of property to be used by the sheriff in performing that office’s statutory functions. See TEX. Lot.
GOV’T CODEANN. 5 81.032 (Vernon Supp. 2004) (authorizing a commissioners court to accept a
donation of property on behalf of the county “for the purpose of performing a function conferred by
law on the county or a county officer”). No statute authorizes a sheriff to accept donated property.
In the absence of a specific statute authorizing the sheriff, or any other county official, to accept
donated property, the commissioners court is the proper body to accept property donations on the
county’s behalf.
Given that your letter suggests that the USMS transferred the federal surplus property at issue
as consideration for housing federal inmates under the contract, see Request Letter, supra note 1, at
The Honorable Matt Bingham - Page 11 (GA-0229)
8-9, we do not reach the question whether section 81.032 of the Local Government Code applies to
federal surplus property transferred to a county as something other than consideration. We also note
that to the extent there is any dispute regarding whether the USMS transferred the property to the
county as consideration for services performed by the county pursuant to a contract, resolution ofthat
issue would involve questions of fact and would be beyond the purview of an attorney general
opinion. See Tex. Att’y Gen. Op. Nos. GA-0078 (2003) at 2 (stating that this office does not
construe particular contracts), GA-0003 (2002) at 1 (stating that the opinion process does not
determine facts).
D. Authority to Dispose of County Property
With respect to the USMS contract, you ask “[w]ho may dispose of surplus items
provided to a county agency by the federal government and must they be included in county
inventory?” Request Letter, supra note 1, at 1 (question 3). In yourrequest letter, you inform us that
the USMS provides two kinds of surplus property: accountable property for which USMS approval
is required prior to disposal by the grantee and non-accountable property, which “is fully disposable
upon transfer to the agency.” Id. at 13. In the absence of a controlling federal statute, title to surplus
property paid as consideration for housing federal prisoners in the county jail would vest in the
county rather than the sheriff, the sheriffs department, or the jail. See Part ILB, supra p. 8. We see
no reason why such property would not be included in county inventory or disposed of like any other
county property, provided that the property has been used by the county as required by any applicable
federal law or transfer term. See generally TEX. Lot. GOV’T CODE ANN. ~$5112.005(a) (Vernon
1999) (requiring a county auditor to “maintain an account for each county, district, or state officer
authorized or required by law to receive or collect money or other property that is intended for the
use ofthe county or that belongs to the county”), 262.011 (i) (Vernon Supp. 2004) (requiring a county
purchasing agent to tile “an inventory of all the property on hand and belonging to the county and
each subdivision, officer, and employee of the county. The county auditor shall carefully examine
the inventory and make an accounting for all property purchased or previously inventoried and not
appearing in the inventory.“); see nlso note 6, supra p. 8. Moreover, even if title has not been
transferred to the county or the county must obtainUSMS approval before disposing ofthe property,
federal surplus property received by a county officer for county use would be included in county
inventory. See, ~.~.,TEx.Loc.Gov’TCODEANN. 55 112.005(a) (Vernon 1999) (requiringacounty
auditor to “maintain an account for each 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”) (emphasis added), 112.006(a) (“The county auditor has 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 intendedfor the use of the county or that belongs to the
county.“) (emphasis added).
In a related but more general question, you ask, “Does the Smith County Sheriff, or any
elected official, have the authority to donate, sell, trade or destroy County property without the
approval ofthe Commissioners Court?” Supplemental Request Letter, supra note 1, at 1 (question
2). It is difficult for this office to answer such a broad question. We note, however, that Local
Government Code provisions governing the sale or donation of county personal property generally
The Honorable Matt Bingham - Page 12 (GA-0229)
,-
vest the authority to sell or donate property in the commissioners court.’ In particular, section
263.152 of the Local Government Code authorizes a commissioners court to sell, trade in, donate,
destroy, or otherwise dispose’ of county salvage or surplus personal property.” The authority to
donate, sell, trade, or destroy particular county property would need to be resolved on a case-by-case
basis.
.-
*See,e.g., TEX.GOV’TCODEANN. g 1477.070(a)(Vernon 2000) (“The commissioners court may sell, deliver,
and distribute any water of the project that is not needed for county purposes to a municipal corporation 01 political
subdivision of this state, or an individual, corporation,OIcompany under terms that the court determines are in the best
interestsofthecounty.“);T``.H~ALT~&S.w~nC``~Aw. $5 263.029(a)(Vemon2001) (“Acountymaysellorlease
all or part of a county hospital or medical or other health facility operated by the county, including real property, if the
commissioners court of the county, by order entered in the minutes of the cout, fmds that the sale OIlease is in the best
interest ofthe county.“), 28 1.052(a)(“171 e commissionerscourt of a county in which a [hospital] district is created under
this chapter may sell real OIpersonal property in order to enter into a contract .“),
‘%e TEX.Lot. GOV’TCODEANN.9 263.152(a)(Vernon Supp. 2004) (“The commissioners court of a county
may: (1) periodicallyseUthe county’s surplus or salvageproperty by competitive bid OIauction, except that competitive
bidding OIan auction is not necessary ifthe purchaser is another county OIa political subdivision within the county that
is selling the surplus or salvage property; (2) offer the property as a trade-in for new property of the same general type
if the commissioners court considers that action to be in the best interests of the county; (3) order any ofthe property
to be destroyed or otherwise disposed of as worthless if the commissioners court undertakes to sell that property under
Subdivision (1) and is unable to do so because no bids are made; or (4) dispose of the property by donating it to a civic
01charitable organizationlocated in the county ifthe commissionerscourt [makescertain fmdings].“)(emphasis added).
%e id. 5 263.151(1)(Vernon 1999)(def~g“salvageproperty” to mean“personalproperty, otherthanitems
routinely discarded as waste, that because ofuse, time, accident,IXany other cause is so worn, damaged, or obsolete that
it has no value for the purpose for which it was originallyintended”),(2) (defining “surplusproperty”to mean “personal
property that: (A) is not salvage property 01items routinely discarded as waste; (B) is not currently needed by its owner;
(C) is not required for the owner’s foreseeableneeds; and(D) possesses some usefulness for the purpose for which it was
intended”).
The Honorable Matt Bingham - Page 13 (GA-0229)
.-
SUMMARY
In the absence of a statute authorizing another county official
to enter into a contract, the commissioners court has the sole authority
to enter into contracts binding the county. Section 35 1.043 of the
Local Government Code does not authorize a county sheriff to
contract to house federal prisoners in the county jail.
Generally, a contract made by a county is valid and binding
only if made under the authority of a resolution or order duly passed
at a meeting of the commissioners court and entered in the minutes.
Under state law, a county sheriff is not authorized to contract
for or to accept federal surplus property as consideration for housing
federal prisoners in the county jail. In the absence of a controlling
federal statute, title to any personal property paid by the federal
government as consideration for housing federal prisoners in the
county jail would vest in the county rather than the sheriff, the jail, or
the sheriffs department.
Section 81.032 of the Local Government Code generally
authorizes the commissioners court of a county to accept donations
on behalf of the county and would authorize a commissioners court
to accept a donation of property to be used by the sheriff in
performing that office’s statutory functions.
Generally, in the absence of a controlling federal statute,
federal surplus property paid to the county as consideration for
housing federal prisoners in the county jail would be included in
county inventory and disposed of like any other county property.
Even if title has not been transferred to the county or the county must
obtain federal agency approval before disposing of the property,
federal surplus property received by a county officer for county use
would be included in county inventory. While section 263.152 of the
Local Government Code generally authorizes a commissioners court
to sell, trade in, donate, destroy or otherwise dispose of county
salvage or surplus personal property, the authority to donate, sell,
trade, or destroy particular county property would need to be resolved
on a case-by-case basis.
Very truly yours,
eneral of Texas
The Honorable Matt Bingham - Page 14 (GA-0229)
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee