Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 19,2004
The Honorable Mike Stafford Opinion No. GA-0189
Harris County Attorney
1019 Congress, 15th Floor Re: Constable’s authority in the county outside of
Houston, Texas 77002-1700 the constable’s own precinct; permissible scope of
interlocal agreements concerning law enforcement
(RQ-0136-GA)
Dear Mr. Stafford:
You ask generally about a constable’s law enforcement authority within the constable’s
county outside of the constable’s own precinct.’ You also ask whether an interlocal agreement
between counties may authorize one county to provide law enforcement services on a toll highway
that runs through the county into another county. See Stafford Brief, supra note 1, at 1.
I. Constable’s Authori@ in the Countv Outside of the Constable’s Own Precinct
You ask broadly about the significance of constable precinct boundaries to a constable’s
authority, particularly a constable’s law enforcement authority. See id. You state that
“[tlraditionally, constables have respected boundaries and not crossed precinct lines to ‘patrol and
police’ another constable’s precinct unless circumstances required it.” Id. at 4. Specifically, you
ask:
May a constable, pursuant to an interlocal agreement between the
county and the school district, provide police services to a school
district that is within the same county, where a portion of the school
district lies outside his precinct but within the geographic boundaries
of a neighboring constable’s precinct? Would it matter if the
constable who is not providing such services objects to another
constable providing such services within the precinct in which the
objecting constable serves?
Id. at l?
‘SeeBrief&Letter fromHonorableMike Stafford,HarrisCountyAttorney,to HonorableGreg Abbott,Texas
AttorneyGeneral(Nov. 20,2003)(on tilewithOpinionCommittee;Letteralso availableof http://www.oag.state.tx.us)
[hereinafterStaffordBrief andRequestLetter].
‘You do not ask abouta county’sand a schooldistrict’sauthorityto enterintoan interlocallaw enfmcement
agreement.See TEX. EDUC. CODEANN. 5 37.081(a) (V emon 1996)(authorizinga schooldistrictto employsecurity
(continued...)
The Honorable Mike Stafford - Page 2 (GA-01 89)
Constables are elected by precinct, and a county may have from one to eight justice of the
peace and constable precincts. See TEX. CONST. art. V, 5 18. Generally, a constable must reside
within the precinct the constable serves. See id. 5 18(c)-(d); see also TEX. ELEC. CODE ANN.
$5 141.001(a)(S) (Vernon Supp. 2003) (eligibility requirements for public office), 141.002(a) (rule
for precinct officers after precinct boundary change or litigation; TEX. LOC. GOV’T CODE ANN.
$5 81.021(a) (Vernon 1999) (change in precinct boundary), 86.001 (incumbent constable’s eligibility
to serve after boundary change).
Local Government Code section 86.021 lists a constable’s general powers and duties:
(a) A constable shall execute and return as provided by law each
process, warrant, and precept that is directed to the constable and is
delivered by a lawful officer. Notices required by Section 24.005,
Property Code, relating to eviction actions are process for purposes
of this section that may be executed by a constable.
(b) A constable may execute any civil or criminal process throughout
the county in which the constable’s precinct is located and in other
locations as provided by the Code of Criminal Procedure or any other
law.
(c) A constable expressly authorized by statute to perform an act or
service, including the service of civil or criminal process, citation,
notice, warrant, subpoena, or writ, may perform the act or service
anywhere in the county in which the constable’s precinct is located.
(d) Regardless ofthe Texas Rules ofCivil Procedure, all civil process
may be served by a constable in the constable’s county or in a county
contiguous to the constable’s county, except that a constable who is
a party to or interested in the outcome of a suit may not serve any
process related to the suit.
(e) The constable shall attend each justice court held in the precinct.
TEX. Lot. GOV’T CODE ANN. 5 86.021 (Vernon 1999). Other constable duties are scattered
throughout the statutes. See, e.g., TEX. AGRK. CODE ANN. 4 71.049(b) (Vernon 1995) (upon
request, a sheriff or a constable shall accompany and assist the Department ofAgriculture to enforce
its notice concerning destruction of nursery products and florist items); TEX FAM. CODE ANN.
5 86.003 (Vernon 2002) (sheriff, constable, or chief of police to provide assistance concerning
temporary order excluding family law respondent from respondent’s residence); TEX. GOV’T CODE
ANN. $62.004 (a) (Vernon 1998) (the district clerk and the sheriff or “any constable of the county’
draws prospective jurors’ names from the jury wheel for a justice or district court); id. 5 62.412(c)
personnelandcommissioned peaceofficerswhosejurisdictionmay
includeall district
property);TEX.GOV’T CODEANN.
$5 791.001.,032(Vernon 1994& Supp.2004) (InterlocalCooperationAct).
The Honorable Mike Stafford - Page 3 (GA-0189)
(a justice of the peace may require a constable to call additional jurors for a justice court); TEX.
PROP. CODE ANN. 55 92.009,93.003 (Vernon 1995 & Supp. 2004) (asheriffor constablemust serve
a writ of reentry issued by the justice court in the precinct where the rental property is located).
For present purposes it is sufficient to note that some constable duties are directly related to
the constable’s precinct. For example, a constable must attend justice court held in the precinct. See
TEX. LOC. GOV’TCODEANN. § 86.021(e) (Vernon 1999). In a forcible entry and detainer action,
“the constable of the precinct” or county sheriff has a duty to put the complainant in possession of
the property under certain circumstances. TEX. R. CIV. P. 740(c). The constable of a precinct where
a fire has occurred may request the state tire marshal to investigate. See TEX. GOV’T CODE ANN.
5 417.007(a)(5) (Vernon 1998). A constable of the precinct in which the office of a political
subdivision’s governing body is located may be required to maintain custody of the key to the box
containing voted ballots in elections concerning the political subdivision. See TEX. ELEC. CODE
ANN. § 66.060(a)(3) (Vernon 2003). While these statutes generally require a constable to perform
a duty within the precinct, other statutes impose duties that a constable may perform outside of the
precinct, most notably a constable’s duty to serve civil and criminal process throughout the county.
See TEX. LOC. GOV’TCODEANN. $86.021(b) (Vernon 1999). Your inquiry, however, focuses on
a constable’s law enforcement authority within the constable’s county but outside ofthe constable’s
precinct.
A constable’s law enforcement authority derives primarily from the constable’s status as a
peace officer. See TEX. CODE GRIM. PROC. ANN. art. 2.12(2) (Vernon Supp. 2004). As a peace
officer, a constable has a duty “to preserve the peace within the officer’s jurisdiction,” with authority
to “use all lawful means” to effect that purpose. Id. art. 2.13(a). Article 2.13(b) describes a peace
offricer’s primary law enforcement duties:
(b) The officer shall:
(1) in every case authorized by the provisions of this Code,
interfere without warrant to prevent or suppress crime;
(2) execute all lawful process issued to the officer by any
magistrate or court;
(3) give notice to some magistrate of all offenses committed
within the offtcer’s jurisdiction, where the offrcer has good reason to
believe there has been a violation of the penal law; and
(4) arrest offenders without warrant in every case where the
off&r is authorized by law, in order that they may be taken before
the proper magistrate or court and be tried.
Id. art. 2.13(b). As peace officers constables have a duty to prevent threatened injuries and death,
see id. arts. 6.01-.07 (Vernon 1977 & Supp. 2004), assist magistrates performing their magistrate
duties, see id. arts. 7.01-.17, and execute arrest warrants, see id. art. 15.16 (Vernon 1977). See
The Honorable Mike Stafford - Page 4 (GA-01 89)
generally Vondy v. Comm’rs Ct. of Uvalde County, 714 S.W.2d 417,421 (Tex. App.-San Antonio
1987, writ ref d n.r.e.); Tex. Att’y Gen. Op. No. K-0413 (2001).
Generally a peace officer’s authority is limited to the officer’s own geographic jurisdiction.
See Tnx. CODE GRIM. PROC. ANN. arts. 2.13(a), 14.03 (Vernon Supp. 2004); Angel v. State, 740
S.W.2d 727,734 (Tex. Crim. App. 1987); Brother v. State, 85 S.W.3d 377,383 (Tex. App.-Fort
Worth 2002, pet. filed); McCain v. State, 995 S.W.2d 229, 234 (Tex. App.-Houston [14th Dist.]
1999, pet. ref d); Dominguez v. State, 924 S.W.2d 950,953 (Tex. App.-El Paso 1996, no pet.).’
Local Government Code section 86.021(c) authorizes a constable to perform all express statutory
duties anywhere within the county in which the constable precinct is located. See TEX. LQC. GOV’T
CODE ANN. § 81.021(c) (Vernon 1999). Relying on the statute’s plain language, this office has
determined that constables may perform law enforcement duties, including traffic law enforcement,
“within their counties outside their respective precincts as well as within them.” Tex. Att’y Gen. Op.
No. JM-761(1987) at 3. Consequently, aconstable’s law enforcement jurisdiction includes not only
the constable’s precinct, but extends to the entire county.
You ask whether a constable is authorized to “police and patrol” in the county outside ofthe
constable’s precinct. Stafford Brief, supra note 1, at 1. Although the Code of Criminal Procedure
does not use those specific terms to describe a peace officer’s authority, the code directs that a
constable may resort to “all lawful means” to maintain the peace. TEX. CODE GRIM. PROC. ANN. art.
2.13(a) (Vernon Supp. 2004). The code largely leaves to the peace officer the determination ofwhat
lawful means are most appropriate to maintain the peace within the officer’s jurisdiction. And, as
we have seen, a constable’s jurisdiction as a peace officer extends throughout the county.
You also ask if a constable may engage in law enforcement in another precinct of the county
if the constable of that precinct objects. See Stafford Brief, supra note 1, at 1. A constable’s
countywide authority, whether to serve process or to maintain the peace, is not conditioned on other
precinct constables’ consent. When a constable exercises such authority in the county outside ofthe
constable’s precinct, it does not diminish or impinge on the other county constables’ authority.
As a practical matter a constable exercising law enforcement duties will naturally focus on
the precinct that elected the constable. But a constable’s authority as a peace officer does not end
attheprecinctboundaty. SeeTex. Att’y Gen. Op.Nos. O-3969 (1941) at 3-4,0-1565 (1939) at 4-5.
Consequently, the constable in the example you pose would have the statutory authority to patrol and
perform other peace officer duties on school district property within the constable’s county, even
though a portion of the property lies partially outside the constable’s precinct.
II. Interlocal Law Enforcement Aereement
Additionally, you ask:
May two adjoining counties enter into an interlocal agreement for one
ofthe counties to provide law enforcement services on a toll road that
‘A peaceoficerhas limitedauthority tom&e warrantlessarrestsoutsideof theofficer’sjurisdiction.SeeTEX.
CODECFXM. PROC.ANN. art. 14.03(d),(g) (Vernon Supp.2004).
The Honorable Mike Stafford - Page 5 (GA-0189)
transgresses both counties’ geographic boundaries? If so, must the
sheriff or other law enforcement official of the county receiving the
services from the providing county agree to the provision of services
by the other county?
Stafford Brief, supra note 1, at 1,7. You explain that under the agreement you have in mind, deputy
sheriffs from one county would patrol the road on both sides of the county line and provide
additional traffic law enforcement in the adjacent county. See id. at 7.
The Interlocal Cooperation Act permits local governments, including counties, to contract
to provide certain governmental services. See TEX. GOV’TCODEANN. 55 791.001-,032 (Vernon
1994 & Supp. 2004) (chapter 791). Under the Act, “police protection and detention services” are
governmental services that may be the subject of an interlocal agreement. Id. 4 791.003(3)(A),
.Ol l(a) (Vernon Supp. 2004). An interlocal contract must be authorized by the governing body of
each party to the contract. See id. $791 .Ol l(d)(l). A county’s governing body is its commissioners
court. See City of San Antonio v. City of Boerne, 111 S.W.3d 22,27 (Tex. 2003).
Local Government Code chapter 362 also authorizes counties and other authorities to
contract for cooperative law enforcement:
(b) A county, municipality, or joint airport may, by resolution or
order of its goveming body, enter into an agreement with a
neighboring municipality, joint airport, or contiguous county to form
a mutual aid law enforcement task force to cooperate in criminal
investigations and law enforcement. Peace officers employed by
counties, municipalities, or joint airports covered by the agreement
have only the additional investigative authority throughout the region
as set forth in the agreement. The agreement must provide for the
compensation of peace offricers involved in the activities of the task
force.
TEX. Lot. GOV’TCODEANN. 5 362.002(b) (Vernon 1999). Under section 362.002(b), like the
Interlocal Cooperation Act, the governing body must authorize any agreement.
As you acknowledge, the sheriff does not have the authority to contract for the county under
either statutory provision. See Stafford Brief, supra note 1, at 7; see also Tex. Att’y Gen. Op. No.
X-0532 (2002) at 2 (Interlocal Cooperation Act), Tex. Att’y Gen. Op. No. JC-0263 (2000) at 3
(Local Government Code chapter 362). Rather, you ask whether an interlocal agreement depends
on the sheriffs consent “to allow another county’s sheriffs deputies to patrol within his own
jurisdiction before a commissioners court executes such an agreement.” Request Letter, supra note
1,atS.
The Interlocal Cooperation Act authorizes one local government to contract with another to
perform only “governmental functions and services . . that each party to the contract is authorized
to perform individually.” TEX. GOV’TCODEANN. 4 791.01 l(a), (c)(2) (Vernon Supp. 2004). As
this office has observed on a number of occasions, the Interlocal Cooperation Act “does not extend
The Honorable Mike Stafford - Page 6 (GA-01 89)
a local government’s criminal law enforcement authority beyond its jurisdiction.” Tex. Att’y Gen.
Op. No. GA-0150 (2004) at 2; accordTex. Att’y Gen. Op. Nos. JC-0530 (2002) at 5-6, E-0219
(2000) at 5. Consequently, the Interlocal Cooperation Act does not authorize one county to exercise
its law enforcement authority over a portion of a road located in another county even if the sheriffs
of both counties agree.
On the other hand, the Interlocal Cooperation Act permits an agreement whereby the peace
officers of one local government serve as law enforcement officers of another local government that
has law enforcement authority. See Tex. Att’y Gen. Op. No. GA-0150 (2004) at 2. Under such an
agreement, the officers providing law enforcement services are in fact officers of the local
government receiving the officer’s services. See Tex. Att’y Gen. Op. No. JC-0530 (2002) at 5-6
(city peace officers providing law enforcement services to a drainage district pursuant to interlocal
agreement are in fact drainage district law enforcement officers). In the example you provide, deputy
sheriffs ofone county acting as peace officers in another county under an interlocal agreement would
in fact be officers of the law enforcement authority of the county receiving the officer’s services.
Similarly, section 362.002(b) ofthe Local Government Code authorizes counties to agree that
the deputy sheriffs of one county may engage in law enforcement in the other county. Section
362.003(a) specifies the terms of the arrangement:
While a law enforcement officer regularly employed by one county,
municipality, or joint airport is in the service of another county,
municipality, or joint airport according to this chapter, the officer is
a peace officer of the latter county, municipality, or joint airport and
is under the command of the law enforcement officer who is in charge
in that county, municipality, or joint airport. The offrcer has all the
powers of a regular law enforcement officer of that county,
municipality, or joint airport as fully as if the officer were in the
county, municipality, or joint airport where regularly employed.
TEX. LOC. GOV’T CODE ANN. 5 362.003(a) (Vernon 1999). In other words, when the deputy sheriffs
of one county patrol in another county, they are in fact officers of the latter county and are under the
command of the latter county’s “law enforcement officer who is in charge in that county.” Id.
Both the Interlocal Cooperation Act and chapter 362 of the Local Government Code require
approval of a law enforcement contract by the local government’s governing body, which for a
county is its commissioners court. But a commissioners court does not itself hold independent law
enforcement authority; rather, county law enforcement authority is vested in specific county offices
such as the sheriff and county constables. See TEX. CONST. art. V, $5 18 (constable), 23 (sheriff);
Tex. Att’y Gen. Op. No. H-l 123 (1978) at 2 (commissioners court does not have independent law
enforcement authority). The Interlocal Cooperation Act and chapter 362 of the Local Government
Code do not specifically require a sheriffs approval before counties enter into a law enforcement
agreement.
The Honorable Mike Stafford - Page 7 (GA-0189)
SUMMARY
A constable may perform law enforcement services on
property that extends into another precinct of the county.
A county may not by agreement extend its law enforcement
jurisdiction into another county. Counties may agree for the deputy
sheriffs ofone countyto perform law enforcement services in another
county, but only as officers of the latter county, subject to the
command of the latter county’s law enforcement authorities.
Attomt&neral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee