Case Information
*1 The Attorney General of Texas August 16, 1983
JIM MATTOX
Attorney General Ronorable William A. Meltten Opinion No. Jk+57 Suprme Can Bullding Criminal District Attorney P. 0. Box 12545 Fort Bend County Courthouse Bc: Whether a county sheriff Auslln. TX. 75711.2545 Richmond, T&r 512.I475.2501 77469 or constable may contract with Telex 91am74-1357 a private homeowners assocla- ~olcopier 51Z47M tioo to furnish it law enforce-
ment services 1507 Maln St. Suite 1400 oaaar. TX. 7520147oli Dear Ur. kitsto: 2W742.5944
You have requested our oploloo concerning authority of a county to cootract vith ~private entities to furnish certified peace 4524 AlbWla Ave.. Suit; 150 law l oforcewot protection 10 return officer for monetary paymants to El Paso. TX. 799052793 &1515J33ull’ the county. ‘Over the course of the years this arrangement has been from this office and Texas courts, and it ie
the subject of opiolons our understanding that such a practice io Texas is oot uncommoo. ‘1220 Dallas Ave.. Suite 202 Nous10n. TX. 77002as56 There Is uo statute l xtaot vhlch purports such to authorize 7lY55oa55 at present upon which such a contracts, oor r coostitutional,provisioo statute could be based. Article III, section 52f, of Texas 505 Broadway. Suite 312 Constitution, adopted in l!@O,,allws couocies having a.populatiou Lubbock. TX. 79401-3479 5,OOD or less~to constmct l od,maintaio private rbads for a reasouable M&747.5235 charge. but oo other caartitutiona~ pr&yisioo. of which we are aware permits~~cootm~~~ of this tituri. 4W9 N. Tenth. SuIta 8
McAlhn. TX. 71331.1555 T%e pollcC~-power 6f the ata&‘is ‘a fkndameotal attribute of. 512ea2.4547 eovereigoty, l ud the Texas Coirstitirtim- ,rcquirer that the powers
governmeat be confided ooly to bodies ‘of “magistracy.” Tex. Coost. art. II. 41. See City Dallas v.‘Smith, 200 Main flua. till* 400 107 S.W.Zd 872 (Tu. 1937). SW, An,miO. TX. 782052797 10 our opioionzounty officers may oot subject their lav enforcement 5121225.4191 private control or dircctiun. respoosibilitlea and functions See
72 Am. Jur. 2d States, Territories and Dependencies, Il. at 406 (19m (duties the state). An Equal Oppwlunilyl 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 through the commissionerr court, with a private homeowners contract, *2 Honorable William A. Meltzen - Page 2 (JM-57)
association to furnish law enforcement services to the association the corporate limits of any whose geographical is not within area 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 the association. the appointment and assignment four deputy
contract calls 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 The deputies are under the supervision and control of the constable. required to remain oo patrol in Sugar Creek except in Instances of “emergencies.” If full number of deputies are not assigned. the to a pro rata refund from the county. There association is entitled are no provisions 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 shall oot !‘obligate the cbastable” ve believe the agreement as a whole Interjects an impermissible influence aod has a substaotial and rul effect on 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 seeking a writ of mandamus compelliog sheriff to municipalities 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 the deployment of law
his decisions as enforcement officers within the county are left to his discretion and judgment since this matter Is not specifically prescribed by law.
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 regarding law enforcement, we do not believe that such county 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 the sheriff’s’ term was void and unenforceable.
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. 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 [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 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 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 *4 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 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 company. The sheriff admitted that he the property of a railroad 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 railroad, except specific cases 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 for the wrongful death at issue in liable 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 assignment e.lsewhere. He will not be subject the sherlf f nor will the orders he be responsible to him. Under these circumstances.
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.
Honorable Ullliam A. Meitzen - Page 5 (~~-57)
r.
In Attorney General Opinion O-207 (1939). this office determined that Is. deputize. that the sheriff could not issue comissions to. 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 annual county cqlebration without complying with the certlficAtion requirements Attorney General Opinion H-1002 (1977). nor may the peace officers, 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. 1948. vrlt - Amarillo ref’d n.r.e.1. gAve tacit approval of Lou enforcement by contract Arrangements. ThL~ city bf Dallss, home rule city, had passed AII ordinance permitting dAnce hall operators to request the assignment of e “specie1 police officer” for which the owner paid then city en to the business premises established The power ‘of supervision and Assignmsat of the fee. special officers. remained. under the ordinance. with the city’s chief Also, under the “Dance Hall Code” the wages of the special of police. the from the various
officers CAIN strictly from received fees 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 holding of the case concerned whether the owners were liable under the r- master-servant doctrine, or whether officer was pursuing his for which the owners Are sot ii-able. We
duties As A public official believe.that Any language In the opinion approving manner of contract Is dicta And contrary to Authorities her+ relating.specifically county peace officers; such authority to contract WAS not litigated the case nor essential to its holding. Furthermore, WC believe case is inapplicable it pertained nuthorlty of A home because rule city rather than to A county.
The deputy is paid by the county, At IeAst facially. 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 ,- enforcing the law.
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 we believe it Is necessary to ContrActlng *way such responsibilities. The appearance
discuss public policy And constitutional questions. impropriety. the potentinl for conflicts interest, And the potential 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 subdivisions the authority “to grant public money or thing pOlitiCA 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 level of lab enforcement protection offered by the county is. ~~eithAr._An~~increase in county taxes, A reallocation by commissioners court of the Available county revenue. or municipal incorporation. 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.
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, to employ the services “guard or corporation Association. company” to provide A “private WatChmn, guard or street patrol” protect private property And protect persons from bodily harm. Id.
§2(4). These considerations. 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. *7 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 law enforcement and has the duty to AdeqUAtelY fund the money sheriff’s office. See V.T.C.S. Arts. 3899.w3g99b. 3902, 3Y12k; Vondy v. Commlssior hers Court of Dvalde. 620 S.W.Zd 104 (Tex. 1981) (commissioners court required to set t reasonnble salnry for constable); cf. Attorney CenerAl Opinion H-1190 (1978) (duty to fund county jnil).
In our opinion, neither A county, 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 Although protection not AVAilAble contractor during off-duty hours). Areas or persons the exercise A
to others might be furnished 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 their interests. or upon willingness of such groups to pay therefor. See Ex parte Cower. 357 - S.W.2d 740 (Tex. 1962).
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_ . SUMMARY--
A county may not contract with A homeowners associntion to provide la+ enforcement protection ’ by county peace officers. I I MATTOX JIM Attorney General of Texas TOM GREEN
First ASsistAnt Attorney Genera3
DAVID R. RICHARDS
Executive ASSiStAnt Attorney General
Prepared by David Brooks
Assistant Attorney General