### 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& RequestLetterand SupplementalRequestLetter].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 1The 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 CODEANN. 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 orThe 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 orjailer 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 orjailer 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 orjailer 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. 5351.043(d)(Vernon 1999)(“Inthissection, ‘federallawenforcement offker’ has the meaning assigned by 5 U.S.C. Section 8331(20).“);~ 5 U.S.C. 9 8331(20) (2000) (deftig “law enforcementofficer”to mean “anemployee,the dutiesofwhose position areprimarilythe investigation,apprehension, or detention ofindividuals suspected or convictedof offenses againstthe criminallaws ofthe United States,including an employee engaged in this activitywho is transferredto a supervisoryor administrativeposition”).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 CODEANN. 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 orjailer 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 thejailer 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 ajailer to operate the jail and meet the needs of the prisoners, but the sherlffshall continue to exercise supervision and control
over thejail. “) (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 CODEANN. 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 35 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, 1997Tex. 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 CODEANN. 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
ajail 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 thefederal 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 CODEANN. @ 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

4SeeAct 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 enforcementofficersbeginning January 1, 1949,and (ii) in counties having apopulation of less than 20,000, sheriffs, deputy sheriffs,county law enforcementoffkers including sheriffs also performing the duties of assessorand collector oftaxes and their deputies beginningJanuay 1, 1949). The statutorypredecessors to section 351.043 date from 1856. See TEX. Lot. GOV’T

CODE ANN. 9 351.043historical and statutorynote (Vernon 1999).The Honorable Matt Bingham - Page 8 (GA-0229)

.- “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 statutesthat authorizeindividualcountyofficialsotherthanthe sheriffto executecontracts,see, e.g.,TEX. LOC. GOV’TCODEANN.

$5 262.01l(d) (VernonSupp. 2004)(“Thecountypurchasingagent shallpurchase allsupplies, materials,and equipmentrequired orused, and contractfor allrepairsto property used,by the county or a subdivision, officer, or employee ofthe county, exceptpurchases and contractsrequiredby law to be made on competitivebid. A person other than the county purchasing agent maynot make the purchase ofthe supplies, materials, or equipmentor makethe contractforrepairs.“),263.001(a)(Vernon 1999)(‘“The commissionerscourt ofa county,by an orderentered in its minutes, may appoint a commissionerto sell or leaserealproperty ownedby the county. The sale or leasemust be made at apublic auctionheld in accordancewith this sectionunless this chapterprovides othetise.“), (c) “(Ifthe realproperty is sold, a deed that is made on behalfofthe countyby the appointed ‘commissioner in conformancewith the order enteredunder Subsection(a) andthatisproperly acknowledged,proved, andrecorded is sufficientto convey the county’ sinterestinthe property.“),411.006(b)(“If the commissionerscourtdetermines that a seawallright-of-way shouldbe donated,thecountyjudge mayconveythepropertyin accordancewiththe orderofthe commissionerscourt.“).
6Forexample, federal law generallyprovides that “theAdministratorof General Services shall superviseand direct the disposition of surplus property in accordancewith this subtitle.” 40 U.S.C. 5 541 (2000). “Anexecutive agencydesignatedor authorizedby the AdministratorofGeneralServicesto dispose of surplusproperty may do soby sale, exchange, lease, permit, or transfer, for cash, credit, or other property, with or without warranty,on terms and conditionsthattheAdministratorconsidersproper. The agencymay executedocumentsto transfertitle orotherinterest intheproperty andmaytake otheractionit considersnecessaryor properto dispose oftheproperty underthis 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 orjailer 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 CODEANN. § 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 underregulationsthat the Administratormayprescribe,maytransferor convey to a State,or political subdivision or instrumentalityof a State, surplusreal and related personalproperty that - (1) the Attorney Generaldetermines is requiredby thetransfereeor granteeforcorrectionalfacilityuseunder aprogramapprovedby the AttorneyGeneralfor the care orrehabilitationofcriminal offenders [or](2)the Attorney Generaldeterminesisrequiredby the transfereeor granteefor lawenforcementpurposes.” Id. 9 553(b)(1)-(2).A federalregulationprovides for conveying “surplusreal and related personalproperty for: (a) Correctionalfacilitypurposes, if the Attorney Generalhas determined thatthe propertyisrequiredfor suchpurposes andhas approvedanappropriateprogram orproject forthe care or rehabilitation of criminal offenders [or] (b) Law enforcementpurposes, if the Attorney Generalhas determined that the property is required for such purposes.
.” 41 C.F.R. 5 102-75.750 (2003),WL41 C.F.R. ~102-75.750.

‘see also TEX. h3C. GOV’ T CODEANN. $9 113.003(Vernon 1999)(‘“fhecounty treasurer shall receive all money belonging to the county from whatever source it may be derived.“), 154.002(“Adistrict, county, or precinct officer who is paid on a salarybasis receives the salaryinstead of all fees, commissions, and other compensationthe officerwould otherwisebe authorizedto keep, exceptas otherwiseprovidedby this subchapter.“), 154.003(“Adistrict, county,orprecinctofticerwho ispaid an annualsalaryshallchargeand collectinthe mannerauthorizedby lawallfees, commissions,and othercompensationpermittedforofficialservicesperformedbythe officer. The officer shalldispose ofthe collected money asprovided by SubchapterB, Chapter 113.“); see generally Tex. Att’yGen. Op. No. GA-0059 (2003)(concluding thatrevenues generatedby an inmate telephone contractmustbe paid into the county treasuryand may be used for any legitimatecountypurpose).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, atThe 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 CODEANN. ~$5112.005(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 generallyThe 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)

(Vernon2000)(“Thecommissionerscourtmay sell,deliver, and distribute any water of the project that is not needed for county purposes to a municipal corporation 01political subdivisionofthis state,or an individual,corporation,OIcompanyunderterms thatthe court determines arein thebest interestsofthecounty.“);T~~.H~ALT~&S.w~nC~~~Aw. $5263.029(a)(Vemon2001) (“Acountymaysellorlease all or part of a county hospital or medical or otherhealthfacilityoperatedby the county, includingrealproperty, ifthe commissionerscourt ofthe county,by order enteredinthe minutes ofthe cout, fmds thatthe sale OI leaseis inthe best interestofthe county.“),281.052(a) (“171 e commissionerscourtofa countyinwhicha [hospital]districtiscreatedunder this chapter may sellreal OI personalproperty in orderto enterinto a contract .“),

‘%e TEX. Lot. GOV’T

CODE ANN. 9 263.152(a)(Vernon Supp. 2004)(“Thecommissionerscourt of a county may: (1)periodicallyseUthe county’ ssurplusor salvage propertybycompetitivebid OI auction,exceptthatcompetitive bidding OI

an auctionisnot necessaryifthe purchaseris anothercounty OI apolitical subdivisionwithinthe countythat is sellingthe surplusor salvageproperty; (2) offertheproperty as a trade-in for newproperty of the samegeneraltype ifthe commissionerscourt considers that actionto be in the best interests ofthe county; (3) order any of the property to be destroyed or otherwise disposed ofasworthlessifthe commissionerscourtundertakesto sell thatproperty under Subdivision(1) andis unable to do so becausenobids are made; or (4) dispose of theproperty by donating it to a civic 01 charitableorganizationlocatedinthecountyifthe commissionerscourt [makescertainfmdings].“)(emphasisadded).
%e id. 5263.151(1)(Vernon 1999)(def~g“salvageproperty” tomean“personalproperty, otherthanitems routinely discardedaswaste,thatbecauseofuse, time,accident,IX anyothercauseis soworn,damaged, orobsoletethat ithasno valueforthepurpose forwhichitwasoriginallyintended”),(2) (defining“surplusproperty”to mean“personal property that: (A)is not salvageproperty01 itemsroutinelydiscardedaswaste;(B)isnot currentlyneeded byits owner; (C)isnotrequiredforthe owner’ sforeseeableneeds;and(D) possessessomeusefulnessforthepurpose forwhichitwas 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 TexasThe 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