Untitled Texas Attorney General Opinion ( 2002 )

- OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
March 12,2002
The Honorable John W. Smith Opinion No. JC-0476
Ector County District Attorney
300 North Grant, Room 305 Re: Whether a commissioners court may
Odessa, Texas 7976 1 establish and fund a courthouse security force and
related questions (RQ-04 18-JC)
Dear Mr. Smith:
You ask a series of questions as to whether the Comrnissioners Court of Ector County may
establish and fund a courthouse security force, funded pursuant to article 102.017 of the Code of
Criminal Procedure. We conclude that, while the Commissioners Court may expend the courthouse
security fund created by article 102.017 to pay the cost of security personnel, article 102.017 does
not empower it to establish a force of licensed peace officers.
Article 102.017(a) of the Code of Criminal Procedure requires a defendant convicted of a
felony offense in a district court to pay a five dollar security fee as a cost of court. TEX. CODE CRIM.
PROC. ANN. art. 102.017(a) (Vernon Supp. 2002). Similarly, article 102.017(b) requires a defendant .
convicted of a misdemeanor offense in a justice court, county court, county court at law, or district
court to pay a three dollar security fee as a court cost. Id. art. 102.017(b). Such costs are to be paid
by the clerks of the respective courts to the treasurer of the county or municipality as appropriate,
to be deposited into funds denominated the “courthouse security fund” or the “municipal court
building security fund.” Id. art. 102.017(d). These funds are to be “used only to finance items when
used for the purpose of providing security services for buildings housing a district, county, justice,
or municipal court, as appropriate.” Id.
Article 102.017(d) provides a list of permissible expenditures from the courthouse security
fund. This office has in prior opinions, treated that list as exclusive. See Tex. Att’y Gen. LO-98-026
(county attorney’s investigator could not provide courthouse security); Tex. Att’y Gen. Op. No. JC-
0014 (1999) (p ermissible security expenditures did not include microphones). The language of the
statute was amended by the Seventy-sixth Legislature to add certain items to the list of permissible
expenditures. See Act of May 3, 1999,76th Leg., R.S., ch. 110, 1999 Tex. Gen. Laws 546. The
relevant item for purposes of this opinion, however, was unaffected. Pursuant to article
102.017(d)(6), the fund may be used for “bailiffs, deputy sheriffs, deputy constables or contract
security personnel during times when they are providing appropriate security services.” TEX. CODE
CRIM. PROC. ANN. art. 102.017(d)(6) (Vernon Supp. 2002). This office has already held that the
phrase “contract security personnel,” in the sense intended by article 102.017(d)(6), means
The Honorable John W. Smith - Page 2 (JC-0476)
independent contractors: “The phrase. . . does not mean county employees who provide courthouse
security.” Tex. Att’y Gen. LO-98-026, at 3.
We believe that the plain language of article 102.017(d)(6) permits the Comrnissioners Court
to use the fund to pay for the services of peace officers and contract security personnel who are
providing “appropriate security services.” Accordingly, we answer your question as to whether it
is permissible for the Commissioners to use the fund in this matter in the affirmative.
While the Court may pay for the services of peace officers and security personnel pursuant
to article 102.017, that article does not empower the Commissioners Court to establish a security
force for the courthouse. Generally, a county has only those powers expressly granted it by
constitution or statute, or necessarily implicit in those powers expressly granted. See Canales v.
Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex.
1941). Article 102.017(d)(6) d oes not by its terms or by necessary implication permit the
Commissioners Court to establish a force of licensed police officers to carry out courthouse security
duties.
Article 2.12 of the Code of Criminal Procedure enumerates the various categories of peace
officer under Texas law. TEX. CODE CRIM. PROC. ANN. art 2.12 (Vernon Supp. 2002). The
legislature has by statute permitted a variety of state agencies and political subdivisions to appoint
such officers. See, e.g., TEX. EDUC. CODE ANN. 5 37.081 (Vernon 1996) (school district may
commission peace officers); TEX. WATERCODEANN. 8 49.216 (Vernon 2000) (water control and
improvement district may commission peace officers); TEX. TRANSP.CODEANN. 9 45 1.108 (Vernon
1999) (metropolitan rapid transit authority may commission peace officers). There is no such
specific statutory authorization for the appointment of the security force your question contemplates,
which is not included among the enumerated categories of article 2.12.
Moreover, while you inform us that the Commissioners Court, in creating such a force, has
titled its members “bailiffs,” which is one of the categories of security personnel whose payment is
permissible under article 102.017(d)(6), what constitutes a bailiff in Ector County is, we believe,
determined by chapter 53 of the Government Code. Section 53.001(a) of the Government Code
requires the judges of certain district courts, including two of the four district courts in Ector County
- the 70th and 16 1st - to appoint bailiffs. TEX. GOV’T CODEANN. 8 53 .OO1(a) (Vernon Supp. 2002).
Pursuant to section 53.007(b) of the Governrnent Code, at the request of the judges of those two
courts among others, the sheriff of the relevant county “shall deputize” those bailiffs. Id. tj
53.007(b). Accordingly, chapter 53 provides an explicit mechanism by which bailiffs in Ector
County may become peace officers, and has vested the authority and responsibility for that
mechanism in the judges of the 70th and 161 st district courts, and the sheriff, rather than the
Commissioners Court.
Accordingly, article 102.017 would allow the Commissioners Court to pay for the services
of bailiffs duly deputized under section 53.007(b) of the Government Code, or deputy sheriffs or
constables, or contract security personnel - that is, independent contractors - to provide courthouse
The Honorable John W. Smith - Page 3 (JC-0476)
security. It does l not, either by its terms or by implication, authori ze the Commissioners courtto
establish a force of licensed peace officers for that purpose.
Your final question is whether, as a convenience to the Commissioners Court, your office
may carry the peace officer’s commissions for a security force established by that body. As this
question is premised on the supposition that such a force may be so established, and we have
determined that this is not the case, we do not consider this question. But see Tex. Att’y Gen. LO-
98-026 (power of prosecutor to appoint investigator does not encompass authority to appoint law
enforcement officer whose duty is provision of courthouse security services).
The Honorable John W. Smith - Page 4 (JC-0476)
. SUMMARY
Article 102.017 of the Code of Criminal Procedure provides
authority for the Ector County Commissioners Court to expend funds
for the provision of courthouse security. However it does not provide
authority, either expressly or by necessary implication, for the
Commissioners Court to establish a courthouse security force of
licensed peace officers.
Yours very truly,
JO’HN CORNYN
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General, Opinion Committee