ATTORNEY GENERALOFTEXAS 

GREG ABBOTT 

August 9,2004 

The Honorable Matt Bingham 

Smith County Criminal District Attorney 

Smith County Courthouse 

100 North Broadway, Fourth Floor 

Tyler, Texas 75702 

Opinion No. GA-0229 

Re: Whether a county sheriff is authorized to 

enter into a contract to house federal prisoners 

or to accept and dispose of federal surplus 

property (RQ-0181-GA) 

Dear Mr. Bingham: 

You ask whether a county sheriff is authorized to enter into a contract to house federal 

prisoners or to accept and dispose of federal surplus property.’ 

I. Backmound 

You explain that your questions arise from an “Intergovernmental Services Agreement” 

signed by the Smith County Sheriff as an addendum to a Cooperative Program Agreement between 

Smith County and the United States Marshals Service (USMS). See Request Letter, supra note 1, 

at 1. “Under the original agreement, the federal government agreed to provide moneys for the 

completion of a low risk jail facility in Smith County.” Id. In exchange for the money, the USMS 

“received a contractual agreement for Smith County to reserve a minimum of 50 bed spaces for use 

by the [USMS] to house federal prisoners.” Id. You state that this agreement “was entered into and 

signed by the Smith County Sheriff and the Smith County Judge in 1988 and had an original term 

of fifteen years with an automatic renewal unless otherwise terminated.” Id. In 2002, the Smith 

County Sheriffentered into “an Interlocal Cooperative Agreement” with the USMS “as a supplement 

to the original agreement which is incorporated therein, which expanded the service provided to the 

[USMS] by including certain transportation services to be performed by the sheriff.” Id. at l-2. The 

sheriff was the only county official to sign the 2002 agreement. See id. at 2. Your letters do not 

address whether the commissioners court officially authorized either of these agreements. 

You also explain that the Smith County Sheriffs Office has received a large quantity of 

surplus goods over a period of several years from the federal government pursuant to the contract 

for housing federal prisoners. See id. at 8. The commissioners court “‘has expressed concern that 

these surplus items have not been properly received into the county and that disposal of the surplus 

items [has] not been authorized by the commissioners court,” Id. 

‘See Letters from Honorable Man Bingham, Smith County Criminal District Attorney, to Honorable Greg 

Abbott, Texas Attorney General (Feb. 4, 2004 and Feb. 7, 2004) (on tile with Opinion Committee, also available al 

http://www.oag.state.tx.us) [hereinat& Request Letter and Supplemental Request Letter]. 
The Honorable Matt Bingham - Page 2 (GA-0229) 

In light of these facts, you ask three questions: 

1. Does the Sheriff, or any elected official, have authority to enter 

into a binding contract with the [USMS] to house federal prisoners in 

the county jail? 

2. Does the [Slheriff, or any elected offtcial, have the authority to 

accept surplus items provided under an agreement with the federal 

government? 

3. Who may dispose of surplus items provided to a county agency by 

the federal government and must they be included in county 

inventory? 

Id. at 1. In a supplemental letter, you explain that a county commissioner objected to your initial 

questions’ scope. As a result, you ask three additional, related questions: 

1. Does the Smith County Sheriff, or any elected official, have the 

authority to sign contracts and encumber the County without approval 

of the Commissioners Court? 

2. Does the Smith County Sheriff, or any elected official, have the 

authority to donate, sell, trade or destroy County property without the 

approval of the Commissioners Court? 

3. Does the Smith County Sheriff, or any elected official, have the 

authority to accept donated property without the approval from the 

Commissioners Court? 

Supplemental Request Letter, supra note 1, at 1. 

To answer these questions, we first address your primary concern, the authority of a county 

sheriff to enter a contract to house federal prisoners in the county jail, as well as the related, more 

general issue regarding elected county officials’ authority to enter into contracts that bind the county. 

Next, we address the authority to accept federal surplus property pursuant to a contract to house 

federal prisoners. Accepting donated property on the county’s behalfraises different issues and we 

address that question separately. Finally, we address the authority to dispose of county property. 

II. Analvsis 

A. Authority to Enter into a Contract Binding the County 

1. Authority to Contract to House Federal Prisoners in the County Jail 

You first ask about the sheriffs authorityto enter into a binding contract with 

the USMS to house federal prisoners in the county jail. See Request Letter, sup-a note 1, at 1 
The Honorable Matt Bingham - Page 3 (GA-0229) 

(question 1). We assume that you are concerned about the sheriffs authority to enter into a contract 

that the commissioners court has not officially authorized. See Part II.A.2, infia p. 7. 

It is well established in Texas law that the commissioners court, as the governing body of the 

county, “is the general business and contracting agency of the county, and it alone has authority to 

make contracts binding on the county, unless otherwise specifically provided by statute.” Anderson 

v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). “[A] sheriff has no authority to make contracts 

that are binding on the county, except where he is specially so authorized to do by statute.” Id. A 

number of statutes grant to a sheriff the authority to enter into agreements in limited circumstances. 

See, e.g., TEX. GOV’T CODE ANN. 8 5 11.012 (Vernon Supp. 2004) (authorizing agreements between 

sheriffs regarding the transferring and receiving of prisoners); TEX. LOC. GOV’T CODE ANN. 

5 351.0415 (Vernon Supp. 2004) (authorizing sheriff to contract with a person to operate a jail 

commissary). In the absence of such express authority, a sheriff may not enter into a contract. See 

Anderson, 152 S.W.2d at 1085. 

Your questions relate to the authority to contract with respect to the county jail’s operation. 

The statutory scheme generally charges “[t]he commissioners court of a county [to] provide safe and 

suitable jails for the county.” TEX. Lot. GOV’T CODE ANN. 4 351.001(a) (Vernon 1999). Under 

Local Government Code chapter 351, subchapter C, which generally provides for the operation of 

county jails, “[tlhe sheriff of each county is the keeper of the county jail. The sheriff shall safely 

keep all prisoners committed to the jail by a lawful authority, subject to an order of the proper court.” 

Id. 5 351.041(a). “The sheriff may appoint a jailer to operate the jail and meet the needs of 

the prisoners, but the sheriff shall continue to exercise supervision and control over the jail.” Id. 

§ 351.041(b). Absent an express statute, the authority to enter into contracts regarding the county 

jail’s operation rests with the commissioners court. See, e.g., Tex. Att’y Gen. Op. No. DM-111 

(1992) at 2 (the commissioners court has authority to contract with a licensed physician to provide 

medical services to inmates incarcerated in county jails, and the sheriff has authority to schedule 

medical services for the county jails); Tex. Att’y Gen. LO-97-030, at 2 (concluding that the 

commissioners court, not the sheriff, has authority to contract regarding the provision of telephone 

services to jail inmates); see also Tex. Att’y Gen. Op. No. GA-0059 (2003) at 2 (approving Attorney 

General Letter Opinion 97-030 to the extent it concludes that, “because the provision of telephone 

services to inmates does not fall within section 35 1.0415 [ofthe Local Government Code], ‘a sheriff 

has no contracting authority regarding the provision of telephone service to inmates”‘). 

We note that 18 USC. $4002 authorizes the United States Attorney General to “contract, 

for a period not exceeding three years, with theproper authorities ofany State, Territory, or political 

subdivision thereof, for the imprisonment, subsistence, care, and proper employment of [federal 

prisoners].” 18 U.S.C. 5 4002 (2000) (emphasis added); see also id. 5 4013(a)(3) (“The Attorney 

General, in support of United States prisoners in non-Federal institutions, is authorized to make 

payments from funds appropriated for Federal prisoner detention for the housing, care, and 

security of persons held in custody of a United States marshal pursuant to Federal law under 

agreements with State or local units of government or contracts with private entities.“). In addition, 

18 USC. 5 4013(b) provides that the United States Attorney General, 

- 

in support of Federal prisoner detainees in non-Federal institutions, 

is authorized to make payments . . for entering into contracts or 
The Honorable Matt Bingham - Page 4 (GA-0229) 

cooperative agreements with any State, territory, or political 

subdivision thereof, for the necessary construction, physical 

renovation, acquisition of equipment, supplies, or materials required 

to establish acceptable conditions of confinement and detention 

services in any State or local jurisdiction which agrees to provide 

guaranteed bed space for Federal detainees within that correctional 

system. 

Id. 5 4013(b). We have not located any federal statute controlling which officials would constitute 

the proper authorities of any “State, Territory, or political subdivision” under section 4002 or 4013. 

Sections 4002 and 4013 appear to defer to state law in this regard. 

You assert that section 351.043 of the Local Government Code authorizes a county sheriff 

to enter into a contract to house federal prisoners in the county jail. Section 351.043 provides in 

pertinent part as follows: 

(a) The sheriff or jailer may receive into the county jail a 

federal prisoner delivered by a federal law enforcement officer unless 

the sheriff or jailer determines that receipt of the prisoner may violate 

a state or federal court order, a statute, or a rule of the Commission on 

Jail Standards or the Texas Board of Criminal Justice. 

- 

,- 

(b) The sheriff or jailer shall safely keep the prisoner until the 

prisoner is transferred or discharged by due course of law. 

(c) The federal law enforcement ofticer on whose authority 

the prisoner is received and kept is directly and personally liable to 

the sheriff or jailer for the jail fees and other costs incurred in keeping 

the prisoner. The fees and costs shall be estimated according to laws 

regulating similar fees and costs in other cases. 

TEX. Lot. GOV’T CODE ANN. 5 351.043 (Vernon 1999).* 

No court has addressed whether section 35 1.043 authorizes a sheriff to enter into a contract 

to house federal prisoners. In a 1990 letter opinion, however, this office concluded that section 

351.043 did not authorize a sheriff to enter into a contract to house federal prisoners from 

Washington, D.C. See Tex. Att’y Gen. LO-90-95, at 4-5. Attorney General Letter Opinion 90-95 

observed that when the legislature intends to authorize a sheriff to enter into a contract, it does so 

expressly, as it has for example in section 351.0415 regarding jail commissary contracts. See id. 

at 5; see also TEX.LOC. GOV’TCODEANN. 5 351.0415 (Vernon Supp. 2004). The letteropinion also 

‘See also TEX. Lot. GOV’TCODEANN. 5 35 1.043(d) (Vernon 1999) (“In this section, ‘federal law enforcement 

offker’ has the meaning assigned by 5 U.S.C. Section 8331(20).“);~ 5 U.S.C. 9 8331(20) (2000) (deftig “law 

enforcement officer” to mean “an employee, the duties ofwhose position are primarily the investigation, apprehension, 

or detention of individuals suspected or convicted of offenses against the criminal laws of the United States, including 

an employee engaged in this activity who is transferred to a supervisory or administrative position”). 
The Honorable Matt Bingham - Page 5 (GA-0229) 

noted that the predecessor provisions to section 351.043 required a sheriff to receive federal 

prisoners. See Tex. Att’y Gen. LO-90-95, at 4. The legislature amended the statute in 1981 to 

provide that the sheriff “may receive” federal prisoners. See id.; see also Act of May 19,198 1,67th 

Leg., RX, ch. 241, 5 1, 1981 Tex. Gen. Laws 603. Citing the 1981 legislative history, the letter 

opinion concluded that “[tlhe substitution of the phrase ‘shall receive’ for the phrase ‘may receive’ 

was not intended by the legislature to [alffect anything other than to no longer impose on the county 

sheriff the mandatory duty to admit federal prisoners into the county jail.” Tex. Att’y Gen. 

LO-90-95, at 4-5. 

- 

We conclude that Letter Opinion 90-95 correctly construed section 35 1.043. A sheriffmust 

have authority to keep a prisoner. See TEX. Lot. GOV’T CODE ANN. 5 351.041(a) (Vernon 1999) 

(“The sheriff shall safely keep all prisoners committed to thejail by a lawful authority, subject to an 

order of the proper court.“) (emphasis added). On its face, section 351.043 merely provides legal 

authority for a sheriff or jailer to receive and keep a federal prisoner in the county jail. At most, it 

authorizes a sheriff or jailer to house and keep individual federal prisoners as requested by a federal 

officer on a case-by-case basis. It does not authorize a sheriffto enter into a contract committing the 

county to house federal prisoners, reserving beds in the county jail for federal use over a term of 

years. See id. 9 351.043. Indeed, the statute authorizes the sheriff or the jailer to keep and house 

a federal prisoner. See id. Under section 35 1.041 (b), the jailer is an employee subject to the sheriffs 

supervision and control. See id. 8 351.041(b) (“The sheriff may appoint a jailer to operate the jail 

and meet the needs of the prisoners, but the sherlffshall continue to exercise supervision and control 

over the jail.“) (emphasis added); see also De la Garza v. State, 579 S.W.2d 220,223 (Tex. Crim. 

App. 1979) (concluding that statutory predecessor to section 351.041 “authorizes the Sheriff to 

legally impose such restriction on his jailers”); Tex. Att’y Gen. Op. No. JM-1047 (1989) at 2 (“A 

jailer is employed by the sheriff and subject to his supervision and control in matters involving his 

duties as jailer.“). If we were to construe section 35 1.043 to authorize the sheriff to enter into a 

contract, we would also have to conclude that the statute vests the jailer with the same authority. We 

doubt the legislature intended to authorize ajailer, an unelected county employee under the sheriffs 

control, to enter into contracts obligating the county to house federal prisoners in the county jail. See 

TEX. GOV’T CODE ANN. 5 3 11.023 (Vernon 1998) (“In construing a statute, a court may consider 

among other matters the: (1) object sought to be attained [and] (5) consequences of a particular 

construction .“). Finally, while the legislature revisited section 351.043 in 1991 and 1997, on 

neither occasion did it reject the 1990 letter opinion’s interpretation of the statute by amending 

section 35 1.043 to authorize sheriffs to enter into contracts.’ 

You disagree with Letter Opinion 90-95 for several reasons. First, you assert that while the 

legislature may not have intended section 3 5 1.043 to authorize a sheriff to enter into a contract, “the 

reality of the [ 198 1 ] change had the effect of creating a need for contractual obligations to ensure 

bed-space for federal needs.” Request Letter, supra note 1, at 2. You further assert that the 

legislature could not have intended to authorize the commissioners court to enter into such a contract 

because the commissioners court does not have authority over housing federal prisoners. See id. 

at 3. 

‘SeeActofAug. 25,1991,72dLeg., 2dCS.,ch. 10, $11.16,1991 Tex. Gen. Laws 180,207;ActofMay 10, 

1997,7Sth Leg., R.S., ch. 259, 5 10, 1997 Tex. Gen. Laws 1196, 1201. 
The Honorable Matt Bingham - Page 6 (GA-0229) 

However, to the extent Texas statutes address the issue, they indicate that the commissioners 

court must have some authority over whether federal prisoners will be kept in the county jail. 

Sections 351.001 of the Local Government Code requires a commissioners court to “provide safe 

and suitable jails for the county,” TEX. Lot. GOV’T CODE ANN. 5 35 1.001 (a) (Vernon 1999), which 

“must comply with the minimum standards and the rules and procedures of the Commission on Jail 

Standards,“id. 5 35 1.002. Section 5 11,0093(b) ofthe Government Code authorizes the Commission 

on Jail Standards (the ‘Commission”) to adopt 

rules regulating the number offederalprisoners and prisoners from 

jurisdictions other than Texas that are housed in a county jail, a 

municipal jail, or a correctional facility operated by a private vendor 

under contract with a municipality if the jail or correctional facility 

houses state, county, or municipal prisoners or prisoners of another 

state of the United States. 

-. 

TEX. GOV’T CODE ANN. § 5 11.0093(b) (V emon 1998) (emphasis added). Section 5 11.009 charges 

both the sheriff and the commissioners court with reporting to the Commission regarding the 

county’s compliance with Commission standards. See id. 5 511.009(a)(8), (14) (Vernon Supp. 

2004). Given that the legislature has charged each commissioners court with the duty to provide for 

a jail that complies with Commission standards and to report to the Commission, the legislature must 

intend for commissioners courts to exercise some authority over whether and to what degree the jail 

will house federal inmates. 

In addition, section 5 11.0094 of the Government Code, which excepts from Commission 

regulation a correctional facility housing only federal prisoners, suggests that the commissioners 

court, not the sheriff, would enter into a contract with the federal government to house federal 

prisoners: 

The provisions of this chapter do not apply to a correctional 

facility contracting to house only federal prisoners and operating 

pursuant to a contract between a unit of the federal government and 

a county, a municipality, or a private vendor. If a county, 

municipality, or private vendor contracts to house or begins to house 

state, county, or municipal prisoners or prisoners of another state of 

the United States, it shall report to the commission before placing 

such inmates in a correctional facility housing only federal prisoners. 

Id. 5 5 11.0094 (emphasis added). 

You also rely on the language of section 351.043(c): “The federal law enforcement officer 

on whose authority the prisoner is received and kept is directly and personally liable to the sheriff 

or jailer for the jail fees and other costs incurred in keeping the prisoner.” TEX. LOC. GOV’T CODE 

ANN. 5 35 1.043(c) (Vernon 1999). You believe that because the federal officer is liable for fees only 

to the sheriff (or the jailer) and not the commissioners court, any authority to enter into a contract 

to house federal prisoners must rest with the sheriff, See Request Letter, supra note 1, at 4. 
The Honorable Matt Bingham - Page 7 (GA-0229) 

However, section 351.043(c) on its face requires a federal officer to pay fees to the sheriff; it does 

not vest the sheriff with the authority to enter into a contract. 

Moreover, the fact that the federal officer is liable to the sheriff or jailer rather than the 

commissioners court for fees is not legally significant. The statutory predecessors to section 

351.043(c) date from before the 1948 adoption of article XVI, section 61 of the Texas Constitution 

generally abolishing fees of office4 and requiring all counties to pay sheriffs on a salary basis. See 

TEX. CONST. art. XVI, 4 61(c) (“it shall be mandatory upon the Commissioners Courts to compensate 

all sheriffs . . . on a salary basis”). Even prior to this requirement, courts held that fees received by 

sheriffs for boarding federal prisoners were fees of office, accountable to the commissioners court 

in determining the maximum salary sheriffs could retain for their services. See Orndorff. El Paso 

County, 295 SW. 219,221 (Tex. Civ. App.-ElPaso 1927,writref d);Binfordv. Harris County,261 

S.W. 535, 537 (Tex. Civ. App.Galveston 1924, writ refd). And significantly, the Texas 

Constitution and the Local Government Code now require county sheriffs and other officials paid 

on a salary basis to deposit any fees of office, fees they collect for performing their official duties, 

in the county treasury. See TEX. CONST. art. XVI, 5 61(d) (“All fees earned by district, county and 

precinct officers shall be paid into the county treasury where earned for the account of the proper 

fund. .“); TEX. LOC. GOV’T CODE ANN. @ 154.002 (Vernon 1999) (a district, county, or precinct 

officer “who is paid on a salary basis receives the salary instead of. fees the officer would 

otherwise be authorized to keep”), 154.003 (“A district, county, or precinct officer who is paid an 

annual salary shall charge and collect in the manner authorized by law all fees, commissions, and 

other compensation permitted for official services performed by the officer. The officer shall dispose 

ofthe collected money as providedby Subchapter B, Chapter 113.“); see also id. § 113.021(a) (“The 

fees, commissions, funds, and other money belonging to a county shall be deposited with the county 

treasurer by the officer who collects the money.“). Under these provisions, a sheriff would be 

required to deposit in the county treasury any money paid by the federal government as a section 

351.043 fee. 

In sum, we conclude that section 35 1.043 does not authorize a sheriff to contract to house 

federal prisoners in the county jail. As no other statute vests such authority in a sheriff, we conclude 

that a sheriff is not authorized to enter into a contract to house federal prisoners in the county jail. 

2. Commissioners Court Approval Generally 

In a related question in your supplemental letter, you ask more generally about 

the authority of the sheriff or any other elected official “to sign contracts and encumber the county 

without approval of the commissioners court.” Supplemental Request Letter, supra note 1, at 1 

(question 1); see also Request Letter, supra note 1, at 1 (question 1 asking about the authority of 

4See Act of June 5, 1947, 50th Leg., R.S., H.R.J. Res. No. 36, 1947 Tex. Gen. Laws 1193 (proposing a 

constitutional amendment to require commissioners courts to compensate on a salary basis (i) constables, deputy 

constables, and precinct law enforcement officers beginning January 1, 1949, and (ii) in counties having a population 

of less than 20,000, sheriffs, deputy sheriffs, county law enforcement offkers including sheriffs also performing the 

duties of assessor and collector of taxes and their deputies beginning Januay 1, 1949). The statutory predecessors to 

section 351.043 date from 1856. See TEX. Lot. GOV’T CODE ANN. 9 351.043 historical and statutory note (Vernon 

1999). 
The Honorable Matt Bingham - Page 8 (GA-0229) 

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“any elected official . . to enter into a binding contract with the [USMS] to house federal prisoners 

in the county jail”). 

As we have discussed, in the absence of a statute authorizing another county official to enter 

into a contract,’ the commissioners court has the sole authority to enter into contracts binding the 

county. See supra p. 3. Moreover, individual commissioners court members have no authority to 

bind the county by their separate action; only an action taken by the commissioners court acting as 

an official body can bind the county. See Can&s v. Laughlin, 214 S.W.2d 45 1,455 (Tex. 1948); 

Gano v. Palo Pinto County, 8 S.W. 634,635 (Tex. 1888). A contract made by a county is valid and 

binding only if made under the authority of a resolution or order duly passed at a meeting of the 

commissioners court and entered in the minutes. See, e.g., Stratton Y. County ofliberty, 582 S. W.2d 

252, 254 (Tex. Civ. App.-Beaumont 1979, writ ref d n.r.e.); Wilson v. County of Calhoun, 489 

S.W.2d 393,397 (Tex. Civ. AppCorpus Christi, 1972, writ ref d n. r.e.); Morrison v. Kohler, 207 

S.W.2d 951,954 (Tex. Civ. App.-Beaumont 1947, writ ref d n.r.e.). 

B. Authority to Accept Federal Surplus Property for the County 

Next, you ask about the authority of the sheriff to accept federal surplus property 

pursuant to the USMS contract. See Request Letter, supra note 1, at 1 (question 2). We note that 

chapter 2175 ofthe Government Code designates the Texas Building and Procurement Commission 

as the state agency to dispose of federal surplus property pursuant to a program under 40 U.S.C. 

§ 549. See TEX. GOV’T CODE ANN. $5 2175.361-,367 (Vernon 2000 & Supp. 2004). Because your 

letter indicates that the USMS rather than the Texas Building and Procurement Commission 

transferred the property, we do not address chapter 2175. 

You have not identified the federal statute or regulations pursuant to which the USMS 

transferred the property.6 Nor have we located any federal statute or regulation governing which 

5For statutes that authorize individual county officials other than the sheriffto execute contracts, see, e.g., TEX. 

LOC. GOV’TCODEANN. $5262.01 l(d) (Vernon Supp. 2004) (“The county purchasing agent shall purchase all supplies, 

materials, and equipment required or used, and contract for all repairs to property used, by the county or a subdivision, 

officer, or employee of the county, except purchases and contracts required by law to be made on competitive bid. A 

person other than the county purchasing agent may not make the purchase of the supplies, materials, or equipment or 

make the contract for repairs.“), 263.001(a) (Vernon 1999) (‘“The commissioners court of a county, by an order entered 

in its minutes, may appoint a commissioner to sell or lease real property owned by the county. The sale or lease must 

be made at a public auction held in accordance with this section unless this chapter provides othetise.“), (c) “(If the 

real property is sold, a deed that is made on behalf of the county by the appointed ‘commissioner in conformance with 

the order entered under Subsection (a) and that is properly acknowledged, proved, and recorded is sufficient to convey 

the county’s interest in the property.“), 411.006(b) (“If the commissioners court determines that a seawall right-of-way 

shouldbe donated, the countyjudge may convey the property in accordance with the order ofthe commissioners court.“). 

6For example, federal law generally provides that “the Administrator of General Services shall supervise and 

direct the disposition of surplus property in accordance with this subtitle.” 40 U.S.C. 5 541 (2000). “An executive 

agency designated or authorized by the Administrator of General Services to dispose of surplus property may do so by 

sale, exchange, lease, permit, or transfer, for cash, credit, or other property, with or without warranty, on terms and 

conditions that the Administrator considers proper. The agency may execute documents to transfer title or other interest 

in the property and may take other action it considers necessary or proper to dispose of the property under this chapter.” 

(continued...) 
The Honorable Matt Bingham - Page 9 (GA-0229) 

official in a state political subdivision is authorized to accept such property. Of course, if a federal 

statute or regulation expressly authorizes a county sheriff or any other official to accept federal 

surplus property, it may control. See generally U.S. CONST. art. VI, cl. 2 (Supremacy Clause); 

Delta Airlines, Inc. Y. Black, 116 S.W.3d 745,748 (Tex. 2003) (discussing federal preemption of 

state law). 

Given our conclusion that a sheriff is not authorized to enter into a contract to house federal 

prisoners in the county jail, it follows that such a contract would not authorize the sheriff to accept 

federal surplus property. Moreover, we believe that, in the absence of a controlling federal statute, 

title to any personal property paid by the federal government as consideration for housing federal 

prisoners in the county jail would vest in the county rather than the sheriff, the jail, or the sheriffs 

department. As we have discussed, in the event a sheriff or jailer kept and housed a federal prisoner 

and received amonetary fee from a federal officer under section 35 1.043(c) ofthe Local Government 

Code, the sheriff or jailer would be required to account for the fee as a fee of office and deposit it 

in the county treasury. See Part II.A.l, supra p. 7.7 To the extent the USMS transfers federal surplus 

property as consideration pursuant to a contract to house federal prisoners in the county jail, that 

consideration, like any monetary consideration, would also be accountable as a fee of office. Thus, 

we believe that title to anypropertypaid by a federal official as a fee under section 35 1.043(c) would 

belong to the county. 

In addition, we note that the legislature has specifically vested sheriffs with control over 

money from certain defined sources. See, e.g., TEX. LOC. GOV’T CODE ANN. § 35 1.0415(b) (Vernon 

Supp. 2004) (providing a sheriff with “exclusive control of the commissary funds”); TEX. CODE 

GRIM. PROC. ANN. art. 59.06(c)(3) (Vernon Supp. 2004) (providing for the deposit of forfeited funds 

in “a special fund in the county treasury if distributed to a county law enforcement agency, to be used 

solely for law enforcement purposes”). The legislature has not provided the sheriff with exclusive 

Id. $543. Section553,40U.S.C.,provides thattheAdministratorofGenera1 Services, “inthe Administrator’sdiscretion 

and under regulations that the Administrator may prescribe, may transfer or convey to a State, or political subdivision 

or instrumentality of a State, surplus real and related personal property that - (1) the Attorney General determines is 

required by the transferee or grantee for correctional facility use under a program approved by the Attorney General for 

the care or rehabilitation of criminal offenders [or] (2) the Attorney General determines is required by the transferee or 

grantee for law enforcement purposes.” Id. 9 553(b)(1)-(2). A federal regulation provides for conveying “surplus real 

and related personal property for: (a) Correctional facility purposes, if the Attorney General has determined that the 

property is required for such purposes and has approved an appropriate program or project for the care or rehabilitation 

of criminal offenders [or] (b) Law enforcement purposes, if the Attorney General has determined that the property is 

required for such purposes. .” 41 C.F.R. 5 102-75.750 (2003), WL 41 C.F.R. ~102-75.750. 

‘see also TEX. h3C. GOV’T CODE ANN. $9 113.003 (Vernon 1999) (‘“fhe county treasurer shall receive all 

money belonging to the county from whatever source it may be derived.“), 154.002 (“A district, county, or precinct 

officer who is paid on a salary basis receives the salary instead of all fees, commissions, and other compensation the 

officer would otherwise be authorized to keep, except as otherwise provided by this subchapter.“), 154.003 (“A district, 

county, or precinct ofticer who is paid an annual salary shall charge and collect in the manner authorized by law all fees, 

commissions, and other compensation permitted for official services performed by the officer. The officer shall dispose 

of the collected money as provided by Subchapter B, Chapter 113.“); see generally Tex. Att’y Gen. Op. No. GA-0059 

(2003) (concluding that revenues generated by an inmate telephone contract must be paid into the county treasury and 

may be used for any legitimate county purpose). 
The Honorable Matt Bingham - Page 10 (GA-0229) 

authority over payments made by the federal government for housing federal prisoners in the county 

jail in section 35 1.043, and no other statute supports the contention that the sheriff would control 

property paid in lieu of a monetary fee. 

Finally, we note that the federal law pursuant to which federal surplus property is transferred 

to the county may require that the property be used by the county for certain limited purposes, such 

as law enforcement or corrections. See note 6, supra p. 8. Thus, although title to federal surplus 

property may not vest in the sheriff, the jail, or the sheriffs department, the sheriff, as the chief 

county law enforcement officer and keeper of the county jail, would be the county official to use 

such property. 

C. Authority to Accept Donated Property 

In a related question you ask whether “the Smith County Sheriff, or any elected 

official, [has] the authority to accept donatedpropertywithout the approval from the Commissioners 

Court?” Supplemental Request Letter, supra note 1, at 1 (question 3). We answer this question 

generally and not with regard to any particular property that has been donated to the county or any 

county office. 

Local Government Code section 81.032 generallyprovides that “[t]he commissioners court 

may accept a gift, grant, donation, bequest, or devise of money or other property on behalf of the 

county for the purpose of performing a function conferred by law on the county or a county officer.” 

TEX. Lot. GOV’T CODE ANN. 5 81.032 (Vernon Supp. 2004); see also TEX. TRANSP. CODE ANN. 

$5 252.109 (Vernon 1999) (“A commissioners court or the road commissioners may accept 

donations of labor, money, or other property to aid in building or maintaining roads in the county.“), 

252.214 (“A commissioners court may accept donations of labor, money, or other property to aid in 

building or maintaining roads in the county.“). Prior to section 8 1.032’s enactment, this office had 

concluded that absent such express legislative authority, counties could not accept gifts of money 

or other personal property to use for county purposes. See genernZly Tex. Att’y Gen. Op. No. 

JC-0443 (2001) at 2; see also Tex. Att’y Gen. LO-97-032, at 2 (concluding that county may not 

accept gifts of videotapes, books, or cash on behalf of alternative dispute center); Tex. Att’y Gen. 

LO-88-106, at 6 (concluding that county may not collect funds and disburse them to local law 

enforcement agencies to combat drug abuse in county). 

By its express terms, section 8 1.032 authorizes a commissioners court to accept a donation 

of property to be used by the sheriff in performing that office’s statutory functions. See TEX. Lot. 

GOV’T CODE ANN. 5 81.032 (Vernon Supp. 2004) (authorizing a commissioners court to accept a 

donation of property on behalf of the county “for the purpose of performing a function conferred by 

law on the county or a county officer”). No statute authorizes a sheriff to accept donated property. 

In the absence of a specific statute authorizing the sheriff, or any other county official, to accept 

donated property, the commissioners court is the proper body to accept property donations on the 

county’s behalf. 

Given that your letter suggests that the USMS transferred the federal surplus property at issue 

as consideration for housing federal inmates under the contract, see Request Letter, supra note 1, at 
The Honorable Matt Bingham - Page 11 (GA-0229) 

8-9, we do not reach the question whether section 81.032 of the Local Government Code applies to 

federal surplus property transferred to a county as something other than consideration. We also note 

that to the extent there is any dispute regarding whether the USMS transferred the property to the 

county as consideration for services performed by the county pursuant to a contract, resolution ofthat 

issue would involve questions of fact and would be beyond the purview of an attorney general 

opinion. See Tex. Att’y Gen. Op. Nos. GA-0078 (2003) at 2 (stating that this office does not 

construe particular contracts), GA-0003 (2002) at 1 (stating that the opinion process does not 

determine facts). 

D. Authority to Dispose of County Property 

With respect to the USMS contract, you ask “[w]ho may dispose of surplus items 

provided to a county agency by the federal government and must they be included in county 

inventory?” Request Letter, supra note 1, at 1 (question 3). In yourrequest letter, you inform us that 

the USMS provides two kinds of surplus property: accountable property for which USMS approval 

is required prior to disposal by the grantee and non-accountable property, which “is fully disposable 

upon transfer to the agency.” Id. at 13. In the absence of a controlling federal statute, title to surplus 

property paid as consideration for housing federal prisoners in the county jail would vest in the 

county rather than the sheriff, the sheriffs department, or the jail. See Part ILB, supra p. 8. We see 

no reason why such property would not be included in county inventory or disposed of like any other 

county property, provided that the property has been used by the county as required by any applicable 

federal law or transfer term. See generally TEX. Lot. GOV’T CODE ANN. ~$5 112.005(a) (Vernon 

1999) (requiring a county auditor to “maintain an account for each county, district, or state officer 

authorized or required by law to receive or collect money or other property that is intended for the 

use ofthe county or that belongs to the county”), 262.011 (i) (Vernon Supp. 2004) (requiring a county 

purchasing agent to tile “an inventory of all the property on hand and belonging to the county and 

each subdivision, officer, and employee of the county. The county auditor shall carefully examine 

the inventory and make an accounting for all property purchased or previously inventoried and not 

appearing in the inventory.“); see nlso note 6, supra p. 8. Moreover, even if title has not been 

transferred to the county or the county must obtainUSMS approval before disposing ofthe property, 

federal surplus property received by a county officer for county use would be included in county 

inventory. See, ~.~.,TEx.Loc.Gov’TCODEANN. 55 112.005(a) (Vernon 1999) (requiringacounty 

auditor to “maintain an account for each county, district, or state officer authorized or required by 

law to receive or collect money or other property that is intended for the use of the county or that 

belongs to the county”) (emphasis added), 112.006(a) (“The county auditor has general oversight of 

the books and records of a county, district, or state officer authorized or required by law to receive 

or collect money or other property that is intendedfor the use of the county or that belongs to the 

county.“) (emphasis added). 

In a related but more general question, you ask, “Does the Smith County Sheriff, or any 

elected official, have the authority to donate, sell, trade or destroy County property without the 

approval ofthe Commissioners Court?” Supplemental Request Letter, supra note 1, at 1 (question 

2). It is difficult for this office to answer such a broad question. We note, however, that Local 

Government Code provisions governing the sale or donation of county personal property generally 
The Honorable Matt Bingham - Page 12 (GA-0229) 

,- 

vest the authority to sell or donate property in the commissioners court.’ In particular, section 

263.152 of the Local Government Code authorizes a commissioners court to sell, trade in, donate, 

destroy, or otherwise dispose’ of county salvage or surplus personal property.” The authority to 

donate, sell, trade, or destroy particular county property would need to be resolved on a case-by-case 

basis. 

.- 

*See, e.g., TEX. GOV’TCODEANN. g 1477.070(a) (Vernon 2000) (“The commissioners court may sell, deliver, 

and distribute any water of the project that is not needed for county purposes to a municipal corporation 01 political 

subdivision of this state, or an individual, corporation, OI company under terms that the court determines are in the best 

interestsofthecounty.“);T~~.H~ALT~&S.w~nC~~~Aw. $5 263.029(a)(Vemon2001) (“Acountymaysellorlease 

all or part of a county hospital or medical or other health facility operated by the county, including real property, if the 

commissioners court of the county, by order entered in the minutes of the cout, fmds that the sale OI lease is in the best 

interest ofthe county.“), 28 1.052(a) (“171 e commissioners court of a county in which a [hospital] district is created under 

this chapter may sell real OI personal property in order to enter into a contract .“), 

‘%e TEX. Lot. GOV’T CODE ANN. 9 263.152(a) (Vernon Supp. 2004) (“The commissioners court of a county 

may: (1) periodicallyseUthe county’s surplus or salvage property by competitive bid OI auction, except that competitive 

bidding OI an auction is not necessary ifthe purchaser is another county OI a political subdivision within the county that 

is selling the surplus or salvage property; (2) offer the property as a trade-in for new property of the same general type 

if the commissioners court considers that action to be in the best interests of the county; (3) order any of the property 

to be destroyed or otherwise disposed of as worthless if the commissioners court undertakes to sell that property under 

Subdivision (1) and is unable to do so because no bids are made; or (4) dispose of the property by donating it to a civic 

01 charitable organization located in the county ifthe commissioners court [makes certain fmdings].“) (emphasis added). 

%e id. 5 263.151( 1) (Vernon 1999)(def~g“salvageproperty” to mean“personalproperty, otherthanitems 

routinely discarded as waste, that because ofuse, time, accident, IX any other cause is so worn, damaged, or obsolete that 

it has no value for the purpose for which it was originally intended”), (2) (defining “surplus property” to mean “personal 

property that: (A) is not salvage property 01 items routinely discarded as waste; (B) is not currently needed by its owner; 

(C) is not required for the owner’s foreseeable needs; and(D) possesses some usefulness for the purpose for which it was 

intended”). 
The Honorable Matt Bingham - Page 13 (GA-0229) 

.- 

SUMMARY 

In the absence of a statute authorizing another county official 

to enter into a contract, the commissioners court has the sole authority 

to enter into contracts binding the county. Section 35 1.043 of the 

Local Government Code does not authorize a county sheriff to 

contract to house federal prisoners in the county jail. 

Generally, a contract made by a county is valid and binding 

only if made under the authority of a resolution or order duly passed 

at a meeting of the commissioners court and entered in the minutes. 

Under state law, a county sheriff is not authorized to contract 

for or to accept federal surplus property as consideration for housing 

federal prisoners in the county jail. In the absence of a controlling 

federal statute, title to any personal property paid by the federal 

government as consideration for housing federal prisoners in the 

county jail would vest in the county rather than the sheriff, the jail, or 

the sheriffs department. 

Section 81.032 of the Local Government Code generally 

authorizes the commissioners court of a county to accept donations 

on behalf of the county and would authorize a commissioners court 

to accept a donation of property to be used by the sheriff in 

performing that office’s statutory functions. 

Generally, in the absence of a controlling federal statute, 

federal surplus property paid to the county as consideration for 

housing federal prisoners in the county jail would be included in 

county inventory and disposed of like any other county property. 

Even if title has not been transferred to the county or the county must 

obtain federal agency approval before disposing of the property, 

federal surplus property received by a county officer for county use 

would be included in county inventory. While section 263.152 of the 

Local Government Code generally authorizes a commissioners court 

to sell, trade in, donate, destroy or otherwise dispose of county 

salvage or surplus personal property, the authority to donate, sell, 

trade, or destroy particular county property would need to be resolved 

on a case-by-case basis. 

Very truly yours, 

eneral of Texas 
The Honorable Matt Bingham - Page 14 (GA-0229) 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Mary R. Crouter 

Assistant Attorney General, Opinion Committee