MARKWHITE AttorneyGeneral 

# The Attorney General of Texas September 9, ‘1989

James P. Iiury, Jr. Criminal District Attorney Qnlves~onCounty Courthouse Galveston, Texas 77550

Dear Mr. Hury:

. OpinionNo; ‘m-2 36 Re: Authority of a deputy sheriff to act as en independent contractor in his off-duty hours to transport funds from a mad district’s toll bridge to the benk

You3&e requested our opinion regardhg the authority of a deputy sheriff to act ss an independent. contractor to collect and deposit funds generated by amad district’s toll bridge. Galveston County RoadDistrict No. 1,created in 1957,Acts 1957, 55th LegMature, chapter 66, at 152,operates the S.snLuis Pass-Vacek Briae, a toll facility. OnJsnuary 1,1980,the District entered into a written contract with a Galveston County deputy sheriff to adleet the bridge tolls at designated intervaJs and &liver such funds as directed. The contract specified that the deputy would “pmviQ personal automobile end own personal time for this ser~ice.~ Youfirst esk whether the Road District is a subdivision of Galveston County. In Hill v. Sterrett, 252 S.W. 2d 766, 769 (Tex. Civ. App. - DaRas 1352,writ rePd hr.e.), the court de&red:

‘A mad distriit is but a s&division of the county, created for the purpoesoftaxation within the district fa county purposes, that is, the construction of rods. The affairs of the district are almost exclusively conducted by the oommissioners’ court, end for all practical purpcees it is a bmnch~ cr &division of the county within its territorial limits.1 In our opinion, this rationale is applicable to Galveston County Road District No. L It is therefore cur view that the Road District Is a s&division of Galveston County. Ycu also ask whether the deputy sheriff may be paMcompensation in addition to -hisregular salary for transport&road district ftmds.- It-is clear that a peace officer isnot entitled to any compensation, other than fees and salary, for perform& acts which it is his official duty to perform. Kesli v. Morris, 9 S.W. 739, 740 (Tex. 1888); Crosby County Cattle -id!

p. 747James P. Iiury, Jr. - Page Two HN-236

McDermett 281S.W. 292, 294 (Tex. Civ. App.- Amarillo l926, no writ). Nostatute, however, &poaes lpon sheriffs cs their deputies the &ty of collecting and transporting mad district funds. The commissioners court itself contends that the deputy is not acting within the scope of his official duties when hs performs these pick-ups. In addition, he performs these rta on his own time and with his own nutomobile Finally, in Kasliw v. Morris, s. the Supreme Court held that even detective work which results in the spprehensmn of aburglar “is only incidental to the official duty of the constable or sheriff,” andthat, asnresult, ha may accept 8reward from nprivate indivickml,~ ~.Since, cooecli_?gandtransporting mnd district fmds is not a duty required of him by law, cf. Attorney Gtierai Gpiiiion.0-773 U933x-we believe%+--- -- - Road District may contractto pay the deputy additional compensation for such services. See Attorney General OpinionG5586 (19435 Wenote that City ofEdinburg v. Ellis, 59s.W. 2d 99 (Tex Comm’n.App. 1933)contains dictum stating that mrniclpal contracts in which officers or employees ofthe city have apersonal pecuniary interest are void The opinion was not adopted by the Supreme Cwrt, and an examination of the authorities cited by the court for this proposition indicates that the rule is intended to apply where the public official or employee making the contract on behalf of the governmental body is himself a beneficiary of the contract. That situation is not present here since the deputy &es not have the power to make the contract on behalf of the governmental body or influence the making of the contract. e 10E. McQuillin, Municipal Corporations, S29.98nt.477-478 (3rd ed. l966Z Thus the pnnciple discussed inCity ofEdinburg v. Ellis,slgra, doesnot apply in this case.’ _ SUMMARY Galveston County Road District No. 1 is a s&division of Galveston’ County. The commissioners court of Galveston County may validly contract with a Qputy sheriff to collect and deposit ftmdsgenerated by the RoadDistrict’s toll briclge.

-

MARK WHITE Attorney General of Texas JOHNW.FAINTER,JR. First Assistant Attorney General Prepared ty Rick Gnpin Assistant Attorney General APPROVED: OPINIONCOMMITTEE C. Robert Heath, Chairman Walter Davis Susan Garrison Rick Gilpin

p. 748