Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 18,2004
The Honorable Michael A. McDougal Opinion No. GA-01 50
Montgomery County District Attorney
301 North Thompson, Suite 106 Re: Whether the Town Center Improvement
Conroe, Texas 77301-2824 District of Montgomery County is authorized to
enter into a contract with a city to provide law
enforcement services in unincorporated areas of
Montgomery County (RQ-0097-GA)
Dear Mr. McDougal:
You ask about the Montgomery County Town Center Improvement District’s authority to
enter into a contract with a city to provide law enforcement services in unincorporated areas of
Montgomery County. You also ask about the authority of a city police officer acting pursuant to
such a contract.*
The Town Center Improvement District of Montgomery County (the “District”) is a special
district that the legislature created pursuant to a 1993 special law as “a governmental agency, a body
politic and corporate, and a political subdivision of the state . . . to promote, develop, encourage, and
maintain employment, commerce, economic development, and the public welfare in the Town
Center area of Montgomery County.” Act of May 13,1993,73d Leg., R.S., ch. 289,s 1(a), (e), 1993
Tex. Gen. Laws 1354,1354. The legislature intended the District “to supplement and not supplant”
services provided by Montgomery County and other entities in the District. Id. tj l(e). The
legislature amended the District’s enabling act in 1997 and 1999. See Act of May 10, 1997, 75th
Leg., R.S., ch. 255, 1997 Tex. Gen. Laws 1188; Act of May 25, 1999, 76th Leg., R.S., ch. 1562,
1999 Tex. Gen. Laws 5371. The District has the authority of a municipal management district under
Local Government Code chapter 375, subchapter E and the general law authority of conservation and
reclamation districts and road districts, including the authority conferred by Water Code, chapters
49 and 54, and by Transportation Code, chapter 441. See Act of May 10,1997,75th Leg., R.S., ch.
255, 8 3, 1997 Tex. Gen. Laws 1188, 1188-89 (amending section 6(a)).
You ask about the District’s authority to enter into a contract with a city for law enforcement
services. Request Brief, supra note 1, at v. You explain that the District encompasses an area in
‘See Request Letter and Brief from Honorable Michael A. McDougal, Montgomery County District Attorney,
to Honorable Greg Abbott, Texas Attorney General, at v (August 25, 2003) (on file with Opinion Committee)
[hereinafter Request BriefJ.
The Honorable Michael A. McDougal - Page 2 (GA-0150)
Montgomery County that is unincorporated and is regularly patrolled by the county sheriffs office.
See id. at 1. In addition, the District has interlocal contracts with two neighboring cities “to provide
peace officers for additional law enforcement services referred to as ‘enhanced Patrol Services.“’
Id. Under the contracts, “Patrol Services” is defined to mean “patrol visibility, backup services to
other law enforcement agencies, and traffic management services” and also includes “the
enforcement of all laws of the State of Texas within the Patrol Area, including, where appropriate,
the making of warrantless arrests.” Id. at l-2.
Your query focuses on section 49.216 of the Water Code. The District’s enabling act
specifically provides the District with authority under Water Code, chapter 49.* Section 49.216
provides a district with authority to “contract for or employ its own peace officers with power to
make arrests when necessary to prevent or abate the commission of’ any offense. TEX. WATER
CODE AN-N.0 49.216(a) (Vernon 2000).
This office recently addressed a drainage district’s authority under section 49.2 16 to contract
with another law enforcement agency for peace officers. See Tex. Att’y Gen. Op. No. JC-0530
(2002). The Interlocal Cooperation Act permits local governments to contract to provide services
that each party is authorized to perform individually. See TEX. GOV’T CODE ANN. 8 $791 .OOl-,032
(Vernon 1994 & Supp. 2004) (chapter 791). Attorney General Opinion JC-0530 concluded that the
Interlocal Cooperation Act authorized a drainage district to contract with a city, which is statutorily
authorized to provide police protection, for law enforcement services within the district given the
district’s law enforcement authority under section 49.216. See Tex. Att’y Gen. Op. No. JC-0530
(2002) at 4; see also Tex. Att’y Gen. LO-98-079, at 2-3.
Attorney General Opinion JC-0530 also addressed peace officers’ authority to make arrests
in the district when acting under such a contract. The opinion notes that an interlocal contract does
not extend a local government’s criminal law enforcement authority beyond its jurisdiction, see Tex.
Att’y Gen. Op. No. JC-0530 (2002) at 5-6, and that a peace officer’s authority to make arrests is
more limited when the officer is outside his or her geographic jurisdiction, see id. at 1-3; see also
TEX. CODECRIM. PROC. ANN. arts. 2.13,14.01,14.03 (Vernon 1977 & Supp. 2004). However, the
opinion concludes that peace officers acting under the drainage-district contract were district peace
officers acting within their geographic jurisdiction and were fully authorized to make arrests within
the district because “[tlhe law enforcement authority exercised by peace officers within the drainage
district pursuant to the arrangement is the authority of the district under section 49.216 . . . , not the
authority of the city.” Tex. Att’y Gen. Op. No. JC-0530 (2002) at 6. In other words, the drainage
district contracted for law enforcement services in the exercise of its own law enforcement authority.
The brief submitted with your request asserts that section 49.216 of the Water Code
authorizes the District to enter into the contract you describe. See Request Brief, supra note 1, at 3.
Significantly, however, the District’s enabling act contains a specific provision governing the
District’s authority to employ peace officers. When the legislature first passed the enabling act in
2SeeAct ofMay 10,1997,75th Leg., R.S., ch. 255,s 3,1997 Tex. Gen. Laws 1188,1188-89 (amending section
6(a))-
The Honorable Michael A. McDougal - Page 3 (GA-0150)
1993, the act provided that the District “shall not be authorized to employ peace officers.” Act of
May 13, 1993,73d Leg., R.S., ch. 289, 8 7(9), 1993 Tex. Gen. Laws 1354, 1359. The legislature
amended and renumbered this provision as section 7(k) in 1999. See Act of May 25, 1999, 76th
Leg., R.S., ch. 1562,§ 2,1999 Tex. Gen. Laws 5371,5374 (amending and renumbering section 7(9)
as 7(k)). Section 7(k) now provides that the District “may not employ peace officers, but may
contract for off-duty peace officers to provide public safety and security services in connection with
a special event, holiday, period with high traffic congestion, or similar circumstance.” Id.
The District’senabling act provides that “[i]f any provision of the general law is in conflict
or inconsistent with this Act, this Act prevails. Any general law which supplements the power and
authority of the district, to the extent not in conflict or inconsistent with this Act, is adopted and
incorporated by reference.” Act of May 13, 1993,73d Leg., R.S., ch. 289, 0 6(b), 1993 Tex. Gen.
Laws 1354, 1358. Section 49.2 16, which authorizes a water district to “contract for or employ its
own peace officers with power to make arrests when necessary to prevent or abate the commission
of’offenses, TEX.WATERCODEANN. 8 49.216(a) (V emon 2000), conflicts with section 7(k), which
specifically provides that the District “may not employ peace officers” except for specific events for
limited purposes. See Act of May 25,1999,76th Leg., R.S., ch. 1562,§ 2, sec. 7(k), 1999 Tex. Gen.
Laws 5371, 5374. Therefore, section 49.216 does not apply to the District and does not authorize
the District to enter into a contract for law enforcement services.
The District’s authority to hire peace officers is governed by section 7(k). That provision’s
plain language precludes the District from directly employing peace officers. See id. (“The district
may not employ peace officers . . . .“). Moreover, the second part of section 7(k), which permits the
District to contract for off-duty peace officers, is clearly limited to special occasions and does not
include the authority to contract for general, ongoing criminal law enforcement such as routine
patrols. See id. (the District may “contract for off-duty peace officers to provide public safety and
security services in connection with a special event, holiday, period with high traffic congestion, or
similar circumstance”).
The brief accompanying your request contends that while section 7(k) prohibits the District
from employing peace officers, the enabling act permits the District to contract with cities to provide
supplemental law enforcement services. See Request Brief, supra note 1, at 5. We disagree for
several reasons.
First, construing the enabling act to allow the District to contract with cities for general law
enforcement services such as routine patrols would render meaningless the second part of section
7(k), which expressly permits the District to contract for peace officers in limited circumstances.
The specific authority to contract for peace officers “to provide public safety and security services
in connection with a special event, holiday, period with high traffic congestion, or similar
circumstance,” Act of May 25,1999,76th Leg., R.S., ch. 1562,§ 2, sec. 7(k), 1999 Tex. Gen. Laws
5371, 5374, would not be necessary if the District were authorized to contract for general law
enforcement services. In order to give this language meaning, we must construe it to delineate the
District’s sole authority to contract for peace officers. See Chevron Corp. v. Redmon, 745 S.W.2d
3 14, 3 16 (Tex. 1987) (Texas Supreme Court “will give effect to all the words of a statute and not
The Honorable Michael A. McDougal - Page 4 (GA-0150)
treat any statutory language as surplusage if possible”) (citing Perkins v. State, 367 S. W.2d 140,146
(Tex. 1963)); see also Tex. Workers’ Comp. Ins. Fund v. Del Indus. Inc., 35 S.W.3d 591,593 (Tex.
2000) (“It is settled that every word in a statute is presumed to have been used for a purpose . . . .“)
(citing Perkins, 367 S.W.2d at 146).
Second, section 7(k) limits the District to contracting for off-duty peace officers. See Act of
May25,1999,76th Leg., R.S., ch. 1562, 8 2, sec. 7(k), 1999 Tex. Gen. Laws 5371,5374. The fact
that officers must be off-duty indicates that the District’s authority is limited to contracting directly
with peace officers, who serve other entities as on-duty peace officers, to work for the District during
their off-duty hours. This authority does not embrace contracts with law enforcement agencies for
services provided by their on-duty peace officers.
Finally, the enabling act does not vest the District with authority to enforce criminal laws3
or to delegate such authority to a city. See Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142
S.W.2d 945,948 (Tex. 1940) (“The powers of such [special] districts are measured by the terms of
the statutes which authorized their creation, and they can exercise no authority that has not been
clearly granted by the legislature.“); see also Mobil Oil Corp. v. Matagorda County Drainage Dist.
No. 3, 597 S.W.2d 910,913 (Tex. 1980) (citing Mann with approval). Moreover, the District and
a city may not by contract extend the city’s law enforcement authority beyond the city’s jurisdiction
into an unincorporated area. See Tex. Att’y Gen. Op. No. JC-0530 (2002) at 5. The brief points out
that the District is authorized under the enabling act to undertake “‘improvement projects”’ that
include special or supplemental services for protecting public health and safety and “‘improving,
enhancing, and supporting public safety and security. . . and law enforcement”’ and to enter into
contracts with other governmental entities to accomplish an improvement project. Request Brief,
supra note 1, at 6-7 (quoting Act of May 25,1999,76th Leg., R.S., ch. 1562,§ 2, sec. 7(j), 1999 Tex.
Gen. Laws 5371’5374) (emphasis omitted); see also Act of May 25’1999’76th Leg., R.S., ch. 1562,
90 1 (amending and renumbering section 2(5)(D)), 2 ( amending and renumbering section 7(e)), 7
(amending section 13), 1999 Tex. Gen. Laws 5371,5372-73’5379 (defining “improvement project”
and providing District’s authority to enter contracts). These provisions may permit the District to
support a law enforcement agency, such as the county sheriffs office, in providing law enforcement
within the agency’s jurisdiction. But they do not vest the District with law enforcement authority
or authorize the District to contract for the services of a peace officer to exercise general law
enforcement authority on its behalf.
In sum, the enabling act does not permit the District to employ peace officers to provide
general law enforcement services either directly or under an interlocal contract like the one addressed
in Attorney General Opinion JC-0530. Because we conclude that the District is not authorized to
enter into a contract with a city to provide general law enforcement services outside the city’s
jurisdiction in unincorporated areas of Montgomery County, we need not reach your question about
the authority of a city police officer acting pursuant to such a contract.
3The District’s regulatory authority is limited to enforcing its rules and regulations by ordinary civil remedies.
See Act of May 25, 1999, 76th Leg., R.S., ch. 1562, $ 2, 1999 Tex. Gen. Laws 5371, 5373, 5374 (section 7(g), (n)).
The Honorable Michael A. McDougal - Page 5 (GA-0150)
SUMMARY
The Town Center Improvement District of Montgomery
County may not enter into a contract with a city to provide general
law enforcement services outside the city’s jurisdiction in
unincorporated areas of Montgomery County.
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