Untitled Texas Attorney General Opinion ( 2003 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 12,2003
The Honorable Mark Burtner Opinion No. GA-0101
Lamar County Attorney
119 North Main Street Re: Whether a sheriff may contract personally to
Paris, Texas 75460 provide security to a private entity (RQ-003 1-GA)
Dear Mr. Burtner:
You ask whether the sheriff of Lamar County may contract with an apartment complex
personally to provide security services. As you explain the matter, the sheriffs “duties would
include enforcing criminal trespass, and other criminal misdemeanor and felony statutes.“*
Your letter notes that a similar issue is addressed in Attorney General Opinion JM-57 (1983),
which disapproved a proposed contract between Fort Bend County and a homeowners’ association
for the provision of four deputy constables to “‘devote substantially all of their working time”’ to
law enforcement duties within the area covered by the homeowners’ association; the association was
to pay the deputies’ salaries to the county. Tex. Att’y Gen. Op. No. JM-57 (1983) at 2 (citation
omitted). The opinion found the proposed contract void:
It is our opinion that a county sheriff or constable may not, through
a contract executed by the commissioners court, contract away or
restrict his discretionary duty regarding the appointment, assignment,
and deployment of deputy peace officers.
Id. at 3. It followed the reasoning of Clear Lake City Water Auth. v. Clear Lake Utils. Co., 549
S.W.2d 385 (Tex. 1977) that a governmental body may not “by contract or otherwise, bind itself in
such a way as to restrict [the] free exercise of [its] governmental powers.” Clear Lake, 549 S.W.2d
at 391.
Sections 35 1.061 and 35 1.062 of the Local Government Code, adopted after the issuance of
Opinion JM-57, would, as you put it, seem to “specifically overrule and authorize what Attorney
General Opinion JM-57 . . . said was impermissible.” Request Letter, supra note 1, at 2.2 Section
35 1.061 authorizes a commissioners court to “contract with a nongovernmental association for the
‘Letter from Honorable Mark Burtner, Lamar County Attorney, to Honorable Greg Abbott, Texas Attorney
General, at 1 (Mar. 18,2003) (on file with Opinion Committee) [hereinafter Request Letter].
*See Act of May 1, 1987,7Oth Leg., R.S., ch. 149, $ 1, 1987 Tex. Gen. Laws 707, 1146.
The Honorable Mark Burtner - Page 2 (GA-0101)
provision of law enforcement services by the county on a fee basis,” TEX. LOC. GOV'T CODE ANN.
5 35 1.061 (Vernon 1999), and section 35 1.062 determines the appropriate fee structure. See id. $
35 1.062. However, an opinion of this office following the enactment of the statutory predecessor
of sections 35 1.061 and 35 1.062 found that statute unconstitutional as an improper delegation of
official authority to a private entity:
Under a contract authorized by [the statute], a nongovernmental body
could insist that deputies assigned to patrol its property remain there,
even if the public interest would be better served by their deployment
elsewhere. The statute is not a legislative limit on the sheriffs
discretion, but a legislative attempt to authorize a private entity to
control the sheriffs discretion.
Tex. Att’y Gen. Op. No. JM-509 (1986) at 4. Having determined that the statute “is not a valid
exercise of legislative power,” Opinion JM-509 concluded that its enactment “does not alter the
conclusion of Attorney General Opinion JM-57.” Id.
Even were we to revisit the conclusions of Attorney General Opinions JM-509 and JM-57,
however, Local Government Code section 35 1.061 would not authorize the contract you describe.
By its terms, section 35 1.06 1 gives contracting authority to the commissioners court, not the sheriff.
See TEX. Lot. GOV'T CODE ANN. 8 35 1.061 (Vernon 1999). The statute here follows the ordinary
rule that “the general power to make contracts binding upon the county belongs to the commissioners
court.” Tex. Att’y Gen. Op. No. JC-0214 (2000) at 7. The sheriff, insofar as he is sheriff, is given
no authority to enter into such a contract by section 35 1.06 1.
Moreover, Attorney General Opinion JM-57 does not address the precise issue at hand
because it addresses the sheriff’s authority to enter into a contract with a private entity with respect
to deployment of the sheriffs deputies. By contrast, you ask about the sheriffs authority to enter
into a contract with a private entity to exercise his own law enforcement authority, which raises
separate issues.
The sheriff is an elected officer in whom the political power of the state is vested. A
“sovereign function of the government is conferred” upon him which he exercises “for the benefit
of the public largely independent of the control of others.” Aldine Indep. Sch. Dist. v. Standley, 280
S.W.2d 578, 583 (Tex. 1955). The sheriff is vested with discretion as to the deployment of his
office’s resources. See Weber v. City of Sachse, 591 S.W.2d 563,567 (Tex. Civ. App.-Dallas 1979,
writ dism’d). He may not contract away the exercise of that discretion. See Clear Lake, 549 S.W.2d
at 391. Such resources include his own law enforcement authority. To the extent any such contract
would impermissibly bind his discretion by obliging him to provide security services at the behest
of, and solely to, any private individual or entity, the sheriff would not be able to enter into it.
Finally, we note that the arrangement you have described to us is distinguishable from a
security services agreement between a private entity and a peace officer who performs such services
while off duty, an activity recognized by chapter 1702 of the Occupations Code, the Private Security
The Honorable Mark Burtner - Page 3 (GA-0101)
Act. C’ State ex rel. Hightower v. Smith, 671 S.W.2d 32’35 n.1 (Tex. 1984) (contrasting sheriffs
arrangement for additional patrols to be made by on-duty deputies of apartment complex providing
him with rent-free apartment with “usual arrangement where an officer agrees to provide ofS-duty
security in return for compensation”). A deputy sheriff, for example, does not have the power to
affect the sheriff’s decision as to the deputy’s deployment and does not contract away any
governmental authority by working for a private entity during his off-duty hours. As this office
noted in Attorney General Opinion DM-2 12 (1993), unlike the sheriff, a deputy is not independently
vested with such power. “A deputy sheriff is still an agent of the sheriff and subject to the orders
of the sheriff.” Tex. Att’y Gen. Op. No. DM-212 (1993) at 5, citing NaiZZ v. State, 129 S.W. 630,
631 (Tex. Crim. App. 1910).
The Honorable Mark Burtner - Page 4 (GA-0101)
SUMMARY
The sheriff of Lamar County may not enter into a contract
which would oblige him to provide security services at the behest of,
and solely to, a private apartment complex.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General, Opinion Committee