Untitled Texas Attorney General Opinion

The Attorney General of Texas
August 16, 1983
JIM MATTOX
Attorney General
Suprme Can Bullding
Ronorable William A. Meltten Opinion No. Jk+57
P. 0. Box 12545 Criminal District Attorney
Auslln. TX. 75711.2545 Fort Bend County Courthouse Bc: Whether a county sheriff
512.I475.2501 - Richmond, T&r 77469 or constable may contract with
Telex 91am74-1357
a private homeowners assocla-
~olcopier 51Z47M
tioo to furnish it law enforce-
ment services
1507Maln St. Suite 1400
oaaar. TX. 7520147oli Dear Ur. kitsto:
2W742.5944
You have requested our oploloo concerning the authority of a
4524AlbWla Ave.. Suit; 150 county to cootract vith ~private entities to furnish certified peace
El Paso. TX. 799052793 officer law loforcewot protection 10 return for monetary paymants to
&1515J33ull’ the county. ‘Over the course of the years this arrangement has been
the subject of opiolons from this office and Texas courts, and it ie
‘1220Dallas Ave.. Suite 202 our understanding that such a practice io Texas is oot uncommoo.
Nous10n.TX. 77002as56
7lY55oa55 There Is uo statute lxtaot vhlch purports to authorize such
contracts, oor r coostitutional,provisioo at present upon which such a
statute could be based. Article III, section 52f, of the Texas
505 Broadway.Suite 312
Lubbock.TX. 79401-3479 Constitution, adopted in l!@O,,allws couocies having a.populatiou of
M&747.5235 5,OOD or less~to constmct lod,maintaio private rbads for a reasouable
charge. but oo other caartitutiona~ pr&yisioo. of which we are aware
permits``cootm``~ of this tituri.
4W9 N. Tenth. SuIta8
McAlhn. TX. 71331.1555
512ea2.4547
T%e pollcC~-power 6f the ata&‘is ‘a fkndameotal attribute of.
eovereigoty, lud the Texas Coirstitirtim- ,rcquirer that the powers of
governmeat be confided ooly to bodies ‘of “magistracy.” Tex. Coost.
200 Main flua. till* 400 art. II. 41. See City of Dallas v.‘Smith, 107 S.W.Zd 872 (Tu. 1937).
SW, An,miO. TX. 782052797 10 our opioionzounty officers may oot subject their lav enforcement
5121225.4191
respoosibilitlea and functions to private control or dircctiun. See
72 Am. Jur. 2d States, Territories and Dependencies, Il. at 406 (19m
An Equal Oppwlunilyl (duties of the state).
Allirmaflre Action Employer
A sheriff.: constable. or deputy Is a peace officer vhose duty it
is “to preserve the peace within his jurisdiction.” Code Grim. Proc.
arts. 2.12, 2.13. Peace officeis must be certified by the state.
V.T.C.S. art. 4413(29aa). They are vested with privileged authority
to make arrests, article 14.03 of the Code of Criminal Procedure, and
to possess handguns, sections 46.02 and 46.03 of the Penal Code.
You specifically ask whether a county sheriff or constable can
contract, through the commissionerr court, with a private homeowners
Honorable William A. Meltzen - Page 2 (JM-57)
association to furnish law enforcement services to the association
whose geographical area is not within the corporate limits of any
municipality. YOU have furnished us a copy of the contract between
Fort Bend County and the Sugar Creek Homes Association, a Texas
corporation (whose property may be nominally taxed, section 23.18 of
the Tax Code; but see Attorney General CpiOion S-1220 (1978)
(provision unconstitutional)). The contract was executed by the
commissioners court and the president of the association. The
contract calls for the appointment and assignment of four deputy
constables who shall “devote substantially all of their working time
to the area known as Sugar Creek” and whose “salaries and expenses”
will be ~paid by the association to the county. The agreement calls
fork tventy-four hour protection. The contract provides for payments
to the county in the aggregate amount of $120.000 over the twelve
month term of the agreemsot. It is agreed that the deputies shall be
under the supervision and control of the constable. The deputies are
required to remain oo patrol in Sugar Creek except in Instances of
“emergencies.” If the full number of deputies are not assigned. the
association is entitled to a pro rata refund from the county. There
are no provisions in the agreement concernlog liability or
indexmificatioo in the event of litigation.
Although the submitted contract pertains ooly to the office of
constable, our answer and discussion will also apply to the sheriff’s
office, as in your question. For purposes of this opinion we will
assume that any activity by the specially assigned peace officer would
be conduct legitimately pursued by a law enforcement officer in the
‘oormal course of his duty to preserve the peace. That is. we amnne
that the officers are pursuing a proper public purpose In their acts.
While the’contract states .that it shall oot !‘obligate the
cbastable” ve believe the agreement as a whole Interjects an
impermissible influence aod has a substaotial and rul effect on the
exercise of discretion as to the deolovment
. - of deputy oeace officers
by the constable, or the sheriff, as the case may be. - The court lo
Weber v. City of Sachse. 591 S.U.Zd 563 (Tex. Civ. App. - Dallas 1979.
no writ). discussed the sheriff’s law aaforcemeot discretion regarding
deployment of his deputies. The case concerned a suit by Incorporated
municipalities seeking a writ of mandamus compelliog the sheriff to
patrol vithin their boundaries. The county had elected to patrol only
the unincorporated areas of the county. The court held that this was
a proper exercise of the county’s discretionary authority as to the
level of law enforcement protection and that the sheriff could not be
compelled to provide patrols as requested because
his decisions as to the deployment of law
enforcement officers within the county are left to
his discretion and judgment since this matter Is
not specifically prescribed by law.
p. 230
Honorable William A. Heitaen - Page 3 (JM-57)
Id. at 567. While we certainly agree with the court’* holding that a
district court cannot Interfere with the exercise of discretion by the
county regarding law enforcement, we do not believe that such
discretion sanctions the execution of a legally impermissible
contract.
The court in Murray v. Rarrfs. 112 S.W.Zd 1091 (Tex. Civ. App. -
Amarillo 1938. writ dism’d). held that the county sheriff could not
contract away his discretion to appoint and discharge his d.eputlea at
his pleasure es authorized by article 6869. V.T.C.S. The court held
that an employment contract with a deputy guaranteeing employmsnt for
the duration of the sheriff’s’ term was void and unenforceable. The
court stated that the effect of the -contract. signed by the sheriff,
would be
to abrogate and abandon the important option
placed in him by law to terminate the employment
at his will or pleasure.
-Id. at 1093.
It la our opinion that a county sheriff or constable may not,
through a contract executed by the commissioners court; contract avay
or restrict his discretionary duty regarding the appointment,
assignment. and deployment of deputy peace officers. We believe that
the agreement to provide law eoforcemeot protection. -an obvious
governmental ~function and police power of thei county. Is void as
contracting away such authority. The court in Clear Leke -City Water
Authority v. Clear Lake Utilltiea Company. 549 S.W.2d 385 (Tex. 1977).
held that a water district could not
,
by contract or otherwise, bind itself in such l
vay as to restrict its free exercise of [its]
~governmental powers.
Id. at 391. See also Texas Power 6 Light Company v. City of Garland,
431 S.W.2d 511 (Tex. 1968) (contracting avay police power); Pittmao v.
, 598 S.W.Zd 941 (Tex. Clv. App. - Amarillo 1980, writ
idelity Land 6 Trust Company of Texas v. City of West
University Place, 496 S.U.Zd 116 (Tex. Civ. App. - Houston (14th
Dist. 1 1973. writ ref’d 0.r.e.) (sever eesements - surrender of
govekmentai power by contract);
Control and Improvement District.
Beaumont 1955. writ ref-‘d n.r.e.) (contract abdicating police pover of
water district void and illegal); City of Belleview v. Belleview Fire
Fighters. Inc., 367 So. 2d 1086 (Fla. Dlst. Ct. App. [lst Disc.) 1979)
(contract taking discretion in fire fighters policy away from
municipal corporation resclnded).
Several courts and attorneys general have discussed "law
enforcement by contract” schemes but have not discussed their basic
p. 239
Honorable Willlam A. Meltsen - Page 4 (Jh-57)
legality. The case of Hudson v. St. Louis Southwestern Railway
Company of Texas, 293 S.W. 811 (Tex. Comm’n App. 1927. holding
aooroved)
.. - concerned a wrongful death action which arose as a result of
a state ranger being assigned to protect the property of the railway
company. The railway company had applied to the governor for the
special appointment of state rangers during a labor strike. It was
agreed that the company would pay the salaries and expenses of the
peace officers. There was 00, discussion in the case as to the
legality of such arrangement; the court simply held that the ranger
was acting vlthio an employment capacity of the company thereby
imposing liability oo the company for wrongful death. The holding and
the facts In Lancaster v. Carter. 255 S.U. 392 (Tex. 1923) are similar
to Hudson. Deputy sheriffs had been appointed and assigned to guard
the property of a railroad company. The sheriff admitted that he
exercised no supervision or had any knowledge of the acts of the
deputy. The deputy was compensated exclusively and directly by the
railroad company. The court held the deputy to be an employee of the
company and the latter liable for the wrongful death by the deputy.
Furthermore, the court stated that
[t]he sheriff had no authority to appoint or
detail a deputy to guard and watch the property of
the railroad, except in specific cases of
threatened injury.
Id. at 393. The court in Texas and N.O.R. Company v. Parsons, 113
G. 914 (Tex. 1908). similarly held that a deputy peace officer
assigned to protect railroad premises was acting as-an employee of the
company. making the latter liable for the wrongful death at issue in
the case, and that the sheriff had no, authority to make such an
appointment. 9
10 Attorney General Opioioo O-4338 (1942). this office concluded
that Humble Oil and Refining Compaoy could not hire a deputy sheriff
to guard its oil storage tanks and other property. The company had
agreed to pay the county the monthly salary of the deputy assigoed.
In the opinion it was atated:
Under the facts as submitted In your letter, this
deputy is to be assigned to guard the oil storage
plaots and oil wells of a private concern. He
will of necessity have to devote his entire time
to this task, and will not be available for
assignment e.lsewhere. He will not be subject to
the orders of the sherlf f nor will he be
responsible to him. Under these circumstances. it
is our opinion that the sheriff would have no
authority or legal right to issue a commission to
a person to perform such services.
-Id. at 4.
p. 240
Honorable Ullliam A. Meitzen - Page 5 (``-57)
r.
In Attorney General Opinion O-207 (1939). this office determined
that the sheriff could not issue comissions to. that Is. deputize.
persons acting AA “watchmen. poundmasters, And others whose business
requires them to carry large sums of money on their persons.” ~The
sheriff may not Appoint A special deputy to patrol in annual county
cqlebration without complying with the certlficAtion requirements for
peace officers, Attorney General Opinion H-1002 (1977). nor may the
sheriff appoint “special deputies” who Are AssignAd no official
duties. See
- Attorney General Opinion V-699 (1948).
The appecrls court in Bounty Bellroom v. Bain, 211 S.W.Zd 248
(Tex. civ. App. - Amarillo 1948. vrlt ref’d n.r.e.1. gAve tacit
approval of Lou enforcement by contract Arrangements. ThL~ city bf
Dallss, A home rule city, had passed AII ordinance permitting dAnce
hall operators to request the assignment of e “specie1 police officer”
to the business premises for which the owner paid then city en
established fee. The power ‘of supervision and Assignmsat of the
special officers. remained. under the ordinance. with the city’s chief
of police. Also, under the “Dance Hall Code” the wages of the special
officers CAIN strictly from the fees received from the various
business establishments. A peace off1ce.r engaged ``8s involved in A
scuffle while evicting A patron at the dance hall. inflicting injuries
for vhich the patron sued the owners And the officer. The issue and
r- holding of the case concerned whether the owners were liable under the
master-servant doctrine, or whether the officer was pursuing his
duties As A public official for which the owners Are sot ii-able. We
believe.that Any language In the opinion approving manner of contract
Is dicta And contrary to Authorities her+ relating.specifically to
county peace officers; such authority to contract WAS not litigated in
the case nor essential to its holding. Furthermore, WC believe the
case is inapplicable because it pertained to the nuthorlty of A home
rule city rather than to A county.
The deputy is paid by the county, At IeAst facially. We believe
it is not necessary to discuss the basic rule of low that A public
officer mry not Accept compeneation from third parties or privAte
sources for the performsnce of official dutias. Knsling v. Morris, 9
S.W. 739. 740 (Tex. 1888)1 See Penal Code 536.02 (brlbcry); Attorney
General Opinion C-661 (1966)(county sheriff’s Authority to contract
with municipality) ; Attorney General Opinion O-773 (1939) (deputy
sheriff mey not become employed by dance hall And Accept
compensation). Attorney General Opinion O-1565 (1939) Also concluded
that A deputy constable may not be employed And paid by A tavern to
enforce the IAV. The opinion stated:
A constable only has the legal right to Accept
compensation prescribed for him by law and that he
may not legally accept compensation from private
sources for patrolling And. performing his duties
,-
of enforcing the law.
p. 241
Honorable William A. Meltzen - Page 6 (JM-57)
-Id. At 6.
BeCAuse the agreement In question provides that it shall not
“obligete” the county And that the Assigned officers remsin under the
supervision of the elected peace officer. and thereby, Arguably.
making inAppliCAble the Authorities discussed above prohibiting
ContrActlng *way such responsibilities. we believe it Is necessary to
discuss public policy And constitutional questions. The appearance of
impropriety. the potentinl for conflicts of interest, And the
potential for less than impartial enforcement of the law. are matters
for serious considArAtlon when LAW enforcement officers knov that
their positions nre supported and funded voluntarily by persons they
police. Furthermore; we believe the bnre~ cost items of reimbursement
to the county -- Automobile expenses And SAlAries -- do not AdeqUAt8ly
cover the full value received by the nssociation in the purcha88 of
the county’s nnme. speciA1 authority. and the “good will.” AS it were.
of the county. Such Aspects of official imprimatUr are of value and
ore conveyed gratis to A defined group of individuals In violation of
article III, section 52. of the Texas Constitution. which denies
pOlitiCA subdivisions the authority “to grant public money or thing
of value in ald of, or to any individual, sssociatlon or corporation
whatsoever.” Although we nre imputing no improper motives to those
wishing to secure law enforcement protection in this manner. we
believe that permitting A group of economically able persons to
purchase additional protection is fraught with potential for abuse And
is An unorthodox manner of conducting the affairs of government. The
proper manner with which to Increase the level of lab enforcement
protection offered by the county is. ``eithAr._An``increase in county
taxes, A reallocation by the commissioners court of the Available
county revenue. or municipal incorporation. We believe that when An
Area within the unincorporAged portion of the county has such A
pressing need for the law enforcement protection contemplsted by the
agreement. there probsbly existA sufficient rensons fo,r the territory
to incorporate and create their owe law enforcement agency. The
parties pay then clearly be entitled to contract for law enforcement
protection under the Interlocal Cooperation Act. Article 4413 (32~).
or article 999b. V.T.C.S.. which pertains to interlocal nssistaace
among lnv enforcement officers. Even without incorporatlon. there is
Adequate provision in stnte lnw permitting private concerns to hire
security services. The Private Investigators and Private Security
Agencies Act, article 4413(29bb), V.T.C.S., permits A person,
Association. or corporation to employ the services of A “guard
company” to provide A “private WatChmn, guard or street patrol” to
protect private property And protect persons from bodily harm. Id.
§2(4). These considerations. in addition to restriction of discret%
discussed above. in our ooinion render the asreement In auestlon here
void As AgAinSt~public policy And unconstitutional. See ‘Hazelwood v.
handrell Industries Company, Ltd., 596 S.W.Zd 204 (Tz Civ. App. - -...
Houston [lst Dist.] 1980. writ ref’d n.r.e.1; Locomotive Engineers and
Conductors Mutual Protective Association v. Bush, 576 S.W.2d 887 (Tex.
p. 242
HonorAble Willlam A. Meitzen - Page 7 (``-57)
Cl”. App. - Tyler 1979. no writ); Restatement (Second) of Contracts
5179 (1979).
The funding for county lnv enforcement protection comes from the
general fund of the county which is generated by tAX revenues and
other legitimate county fees And charges. The commissioners court is
vested with discretion with rAgArd to the allocation of this public
money for law enforcement and has the duty to AdeqUAtelY fund the
sheriff’s office. See V.T.C.S. Arts. 3899.w3g99b. 3902, 3Y12k; Vondy
v. Commlssiorhers Court of Dvalde. 620 S.W.Zd 104 (Tex. 1981)
(commissioners court required to sett reasonnble salnry for constable);
cf. Attorney CenerAl Opinion H-1190 (1978) (duty to fund county jnil).
In our opinion, neither A county, A sheriff, nor A constnble is
empowered to enter into A contrnct with privnte entities or homeowners
to furnish them specinl law enforcement protection unAvAilAble to
others. All such agreements A’re void And unenforceable. Cf. Attorney
General Opinion MU-236 (1980) (deputy sheriff acting asfndependent
contractor during off-duty hours). Although protection not AVAilAble
to others might be furnished to Areas or persons in the exercise of A
reasonable ~discretion based on general public need, Weber v. City ~of
Sachse. suprs. county officisls Are not At liberty to base such
decisions on the wishes of private groups to have public equipment And
personnel specially devoted to their interests. or upon the
willingness of such groups to pay therefor. -See Ex parte Cower. 357
S.W.2d 740 (Tex. 1962).
_ . SUMMARY-- . _^__- ----
A county may not contract with A homeowners
associntion to provide la+ enforcement protection ’
by county peace officers. I I
JIM MATTOX
Attorney General of Texas
TOM GREEN
First ASsistAnt Attorney Genera3
DAVID R. RICHARDS -
Executive ASSiStAnt Attorney General
Prepared by David Brooks
Assistant Attorney General
p. 243