Untitled Texas Attorney General Opinion ( 2013 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 26, 2013
The Honorable John Mark Cobern Opinion No. GA-1018
Titus County Attorney
100 West First Street, Suite 106 Re: Whether a commissioners court may establish
Mt. Pleasant, Texas 75455 a rule that prohibits an elected county official from
bringing a pet to the official's office
(RQ-1114-GA)
Dear Mr. Cobern:
You ask whether a county commissioners court may establish a rule that prohibits an
elected county official from bringing a pet to the official's office. 1 You inform us that your
office is located in the Titus County Courthouse and that you have brought your dog to your
office for the last three years. Request Brief at 1. You state that the Titus County
Commissioners Court recently voted to ban all animals from county buildings. !d. at 2. You
question the commissioners court's authority to extend this ban to the office of an independently
elected county official. !d. at 2-4.
We note at the outset that, according to the commissioners court's meeting minutes, the
policy has exceptions for specified categories of service animals. See Minutes of Titus Cnty.
Comm'rs Ct. Regular Meeting at 4 (Mar. 11, 2013) (Item 7), http://www.co.titus.tx.us/index.html
(on file with the Op. Comm.). Access to public buildings for persons with service animals is
governed by state and federal laws not addressed in this opinion. See, e.g., TEx. HUM. REs.
CODE ANN. § 121.003(c) (West 2013) (use of service animals in public facilities); 28 C.F.R. §§
35.136 (2013) (use of service animals with respect to state and local services); 36.302(c) (use of
service animals with respect to public accommodations). Nothing in this opinion should be
construed to affect the rights of persons who use service animals.
The Texas Constitution and statutes distribute the power of the county among various
independent county and district officials and the county commissioners court. Each independent,
elected county official possesses a sphere of authority in which no other county official or entity,
including the commissioners court, may "interfere or usurp." Pritchard & Abbott v. McKenna,
350 S.W.2d 333, 335 (Tex. 1961). As courts have observed, "in Texas, elected county officials
1
See Brief from Honorable John Mark Cobern, Titus Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y
Gen. at I (Mar. 12, 2013), http://www.texasattomeygeneral.gov/opin ("Request Brief').
The Honorable John Mark Cobern - Page 2 (GA-1018)
hold 'virtually absolute sway over the particular tasks or areas of responsibility entrusted to
[them] by state statute."' Hooten v. Enriquez, 863 S.W.2d 522,531 (Tex. App.-El Paso 1993,
no writ) (quoting Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)). However, an
official's protected "sphere of authority" concerns only "core duties" specifically delegated to
the officer by the Texas Constitution and statutes. See Griffin v. Birkman, 266 S.W.3d 189, 197
(Tex. App.-Austin 2008, pet. denied) (citing Comm'rs Ct. ofTitus Cnty. v. Agan, 940 S.W.2d
77, 79-80 (Tex. 1997)).
No statute specifically addresses the authority of an official to establish policy with
respect to the presence of pets or other animals on office premises. Your question concerns the
commissioners court's authority to establish regulations applicable to the county attorney's
office, which is located in the county courthouse. Request Brief at 1. Commissioners courts
have only the power conferred to them by statute or the Texas Constitution. TEX. CONST. art. V,
§ 18(b); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). But when the
constitution and statutes have conferred a right or obligation on the commissioners court, the
commissioners court has implied authority to exercise broad discretion to accomplish the
purposes underlying the constitutional or statutory provision. Anderson v. Wood, 152 S.W.2d
1084, 1085 (Tex. 1941 ). A commissioners court action is subject to reversal only for acts
beyond its jurisdiction or a clear abuse of discretion. Comm 'rs Ct. ofTitus Cnty., 940 S.W.2d at
80-81.
Commissioners courts have a specific statutory duty to provide and maintain a county
courthouse and offices for county officials. TEX. Loc. Gov'T CoDE ANN. § 291.001 (West
2005). This statutory duty gives a commissioners court "at least implied authority to regulate the
use [of county offices] within reasonable bounds." Dodson v. Marshall, 118 S.W.2d 621, 623
(Tex. Civ. App.-Waco 1938, writ dism'd); see also TEX. Loc. Gov'T CODE ANN. § 291.003
(West 2005) ("The county sheriff shall have charge and control of the county courthouse, subject
to the regulations ofthe commissioners court." (emphasis added)). Moreover, a commissioners
court's duty to provide offices under section 291.001 is "replete with discretion." In re El Paso
Cnty. Courthouse, 765 S.W.2d 876, 879 (Tex. App.-El Paso 1989, no writ). Therefore, the
regulation of animals in the county courthouse and county offices is a matter that is generally
within the commissioners court's discretionary authority.
Because the subject matter of the commissioners court's order is within the
commissioners court's authority, the remaining issue is whether the commissioners court abused
its discretion by issuing the order. See Comm 'rs Ct. of Titus Cnty., 940 S.W.2d at 81. A
commissioners court may abuse its discretion by acting "illegally, unreasonably, or arbitrarily."
!d. at 80. You do not suggest that the commissioners court's order is contrary to any statute. 2 If,
however, the commissioners court's order interfered with a county official's performance of the
2
To the extent that a commissioners court order is contrary to a statutory requirement, it would be invalid.
See Guynes v. Galveston Cnty., 861 S.W.2d 861, 863 (Tex. 1993) (stating that a commissioners court's acts "must
be grounded ultimately in the Texas Constitution or statutes").
The Honorable John Mark Cobern - Page 3 (GA-1018)
statutory or constitutional duties of his office, the order would exceed the commissioners court's
authority. See, e.g. , Abbott v. Pollock, 946 S.W.2d 513, 516-17 (Tex. App.-Austin 1997, writ
denied) (holding that a commissioner court may determine the number and compensation of a
sheriffs employees, but may not interfere with the sheriffs exclusive statutory authority to hire
or terminate employees). You assert that the presence of your dog helps to maintain a safer
office environment. Request Brief at 1, 4. Whether that assertion is accurate or not, under the
facts as you relate them a reviewing court would likely conclude that the commissioners court's
order does not unreasonably interfere with the performance of the statutory or constitutional
duties of the county attorney. Accordingly, given the commissioners court's statutory authority
to maintain and regulate county offices, a reviewing court would likely uphold the
commissioners court order prohibiting animals in all county offices, including the office of the
county attorney.
The Honorable John Mark Cobern - Page 4 (GA-1018)
SUMMARY
Due to a commissioners court's statutory authority to
maintain and regulate county offices, a reviewing court would
likely determine that the Titus County Commissioners Court may
generally prohibit animals in county offices, including the office of
the county attorney.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee