Untitled Texas Attorney General Opinion ( 2015 )

February 17, 2015
The Honorable Jim Wheeler Opinion No. KP-0003
Wood County Criminal District Attorney
Post Office Box 689 Re: Whether a county sheriff may solicit and
Quitman, Texas 75783 receive public donations for programs of the
sheriffs department (RQ-1214-GA)
Dear Mr. Wheeler:
You explain that the "Wood County Sheriff is attempting to raise funds to purchase a side
scanning sonar for use in its lake patrol program." 1 Brief at 1. Because the Wood County
Commissioners Court has not budgeted funds for the purchase of any additional program
equipment, it has passed a resolution authorizing it to "accept donations from donors for the Wood
County Sheriffs Department Lake Patrol Program."2 You ask whether the county sheriff may
solicit and receive donations to be used for this program. Request Letter at 1.
Your first question asks whether the sheriff may "receive donations directly" for the lake
patrol program, noting that the sheriff is asking that donations be sent directly to his office. Brief
at 1. 3 A sheriff may exercise only those powers that the state constitution and statutes confer,
either explicitly or implicitly. TEX. CONST. art. V, § 23 (stating that a sheriffs duties "shall be
prescribed by the Legislature"); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941) (stating
that a sheriff lacks authority to contract unless the sheriff is "specially so authorized to do by
statute"). No statute authorizes a sheriff to accept donations from the public to the county.
In contrast, section 81.032 of the Local Government Code provides 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. Loe. Gov'T CODE ANN. § 81.032 (West 2008). Once the
1
See Letter and Brief from Honorable Jim Wheeler, Wood Cnty. Crim. Dist. Att'y, to Office of the Att'y
Gen. Op. Comm. (Aug. 18, 2014), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter" & "Brief').
2
See Request Letter, attachment 1 (Wood County Commissioners Court Resolution #14-13, on file with Op.
Comm.).
3
See Request Letter, attachment 2 at 1 (on file with Op. Comm .).
The Honorable Jim Wheeler - Page 2 (KP-0003)
commissioners court has received a donation on behalf of the county, it must deposit the money
with the county treasurer. Id. § l 13.021(a) (West Supp. 2014). The county treasurer disburses
and applies money belonging to the county "as required by law and as the commissioners court
may require or direct, not inconsistent with law." Id.§ 113.041(a). Thus, it appears that pursuant
to section 81.032, the Legislature intended the commissioners court to be the proper body to
receive and accept donations on the county's behalf. Tex. Att'y Gen. Op. No. GA-0229 (2004) at
10 (explaining that "section 81.032 authorizes a commissioners court to accept a donation of
property to be used by the sheriff in performing that office's statutory functions"). To the extent
that members of the public send donations directly to the sheriff, the sheriff should immediately
forward those funds to the commissioners court for proper handling.
Your second question asks whether the sheriff may solicit donations for the lake patrol
program. Brief at 1-2. No statute expressly authorizes a sheriff to solicit donations; however, one
of the sheriffs principal duties is to enforce the law within the county. TEX. CODE CRIM. PROC.
ANN. art. 2.17 (West 2005). By expressly authorizing the sheriff to enforce the law, the Legislature
has implicitly given the sheriff any "reasonable authority necessary to attain the end result." Fort
Bend Cnty. Wrecker Ass 'n v. Wright, 39 S.W.3d 421, 425 (Tex. App.-Houston [1st Dist.] 2001,
no pet.). Certainly, pursuant to that implicit authority, the sheriff may request from the
commissioners court equipment that the sheriffs office needs to enforce the law. See Tex. Att'y
Gen. Op. No. JC-0214 (2000) at 7 (explaining that in deciding which equipment to purchase for
the sheriffs department, the commissioners court may consult with the sheriff).
You question whether the sheriffs conduct in this instance may have violated section 36.08
of the Penal Code. Brief at 2. Section 36.08 provides:
A public servant in an agency performing regulatory functions or
conducting inspections or investigations commits an offense if he
solicits, accepts, or agrees to accept any benefit from a person the
public servant knows to be subject to regulation, inspection, or
investigation by the public servant or his agency.
TEX. PENAL CODE ANN.§ 36.08(a) (West 2011). A sheriff is a "public servant" with authority to
regulate and investigate the conduct of persons in the sheriffs county, making a sheriff subject to
the prohibitions in section 36.08. Id.§ l.07(a)(41) (West Supp. 2014) (defining "public servant"
as a person elected as an officer of government); TEX. CODE CRIM. PROC. ANN. art. 2.17 (West
2005) ("Each sheriff shall be a conservator of the peace in his county, and shall arrest all offenders
against the laws of the State .... ").
Your question, however, asks for a determination about whether the Wood County Sheriff
has engaged in conduct that would violate section 36.08, which is not a question that can be
resolved through the opinion process. See Tex. Att'y Gen. Op. No. GA-0760 (2010) at 3.
Determining whether the sheriffs conduct constituted an illegal solicitation will depend upon
questions of fact. In performing its opinion function, this office is not authorized to investigate
allegations of illegal conduct, nor does it have the capacity to resolve disputed issues of fact. See
Tex. Att'y Gen. Op. No. GA-0876 (2011) at 1.
The Honorable Jim Wheeler - Page 3 (KP-0003)
SUMMARY
Pursuant to section 81.032 of the Local Government Code,
the commissioners court is the proper body to receive and accept
donations on the county's behalf. To the extent that members of the
public send donations to the sheriff, the sheriff should immediately
forward those donations to the commissioners court for proper
handling.
Very truly yours,
;c:__ ~-kr-J
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Assistant Attorney General