The Attorney General of Texas 

August 16, 1983 

JIM MATTOX 

Attorney General 

Suprme Can Bullding 

P. 0. Box 12545 

Auslln. TX. 75711.2545 

512.I475.2501 - 

Telex 91am74-1357 

~olcopier 51Z47M 

1507 Maln St. Suite 1400 

oaaar. TX. 7520147oli 

2W742.5944 

4524 AlbWla Ave.. Suit; 150 

El Paso. TX. 799052793 

&1515J33ull’ 

‘1220 Dallas Ave.. Suite 202 

Nous10n. TX. 77002as56 

7lY55oa55 

505 Broadway. Suite 312 

Lubbock. TX. 79401-3479 

M&747.5235 

4W9 N. Tenth. SuIta 8 

McAlhn. TX. 71331.1555 

512ea2.4547 

200 Main flua. till* 400 

SW, An,miO. TX. 782052797 

5121225.4191 

An Equal Oppwlunilyl 

Allirmaflre Action Employer 

Ronorable William A. Meltten 

Criminal District Attorney 

Fort Bend County Courthouse 

Richmond, T&r 77469 

Opinion No. Jk+57 

Bc: Whether a county sheriff 

or constable may contract with 

a private homeowners assoclatioo to furnish it law enforcement services 

Dear Ur. kitsto: 

You have requested our oploloo concerning the authority of a 

county to cootract vith ~private entities to furnish certified peace 

officer law l oforcewot protection 10 return for monetary paymants to 

the county. ‘Over the course of the years this arrangement has been 

the subject of opiolons from this office and Texas courts, and it ie 

our understanding that such a practice io Texas is oot uncommoo. 

There Is uo statute l xtaot vhlch purports to authorize such 

contracts, oor r coostitutional,provisioo at present upon which such a 

statute could be based. Article III, section 52f, of the Texas 

Constitution, adopted in l!@O,,allws couocies having a.populatiou of 

5,OOD or less~to constmct l od,maintaio private rbads for a reasouable 

charge. but oo other caartitutiona~ pr&yisioo. of which we are aware 

permits~~cootm~~~ of this tituri. 

T%e pollcC~-power 6f the ata&‘is ‘a fkndameotal attribute of. 

eovereigoty, l ud the Texas Coirstitirtim- ,rcquirer that the powers of 

governmeat be confided ooly to bodies ‘of “magistracy.” Tex. Coost. 

art. II. 41. See City of Dallas v.‘Smith, 107 S.W.Zd 872 (Tu. 1937). 

10 our opioionzounty officers may oot subject their lav enforcement 

respoosibilitlea and functions to private control or dircctiun. See 

72 Am. Jur. 2d States, Territories and Dependencies, Il. at 406 (19m 

(duties of the state). 

A sheriff.: constable. or deputy Is a peace officer vhose duty it 

is “to preserve the peace within his jurisdiction.” Code Grim. Proc. 

arts. 2.12, 2.13. Peace officeis must be certified by the state. 

V.T.C.S. art. 4413(29aa). They are vested with privileged authority 

to make arrests, article 14.03 of the Code of Criminal Procedure, and 

to possess handguns, sections 46.02 and 46.03 of the Penal Code. 

You specifically ask whether a county sheriff or constable can 

contract, through the commissionerr court, with a private homeowners 
Honorable William A. Meltzen - Page 2 (JM-57) 

association to furnish law enforcement services to the association 

whose geographical area is not within the corporate limits of any 

municipality. YOU have furnished us a copy of the contract between 

Fort Bend County and the Sugar Creek Homes Association, a Texas 

corporation (whose property may be nominally taxed, section 23.18 of 

the Tax Code; but see Attorney General CpiOion S-1220 (1978) 

(provision unconstitutional)). The contract was executed by the 

commissioners court and the president of the association. The 

contract calls for the appointment and assignment of four deputy 

constables who shall “devote substantially all of their working time 

to the area known as Sugar Creek” and whose “salaries and expenses” 

will be ~paid by the association to the county. The agreement calls 

fork tventy-four hour protection. The contract provides for payments 

to the county in the aggregate amount of $120.000 over the twelve 

month term of the agreemsot. It is agreed that the deputies shall be 

under the supervision and control of the constable. The deputies are 

required to remain oo patrol in Sugar Creek except in Instances of 

“emergencies.” If the full number of deputies are not assigned. the 

association is entitled to a pro rata refund from the county. There 

are no provisions in the agreement concernlog liability or 

indexmificatioo in the event of litigation. 

Although the submitted contract pertains ooly to the office of 

constable, our answer and discussion will also apply to the sheriff’s 

office, as in your question. For purposes of this opinion we will 

assume that any activity by the specially assigned peace officer would 

be conduct legitimately pursued by a law enforcement officer in the 

‘oormal course of his duty to preserve the peace. That is. we amnne 

that the officers are pursuing a proper public purpose In their acts. 

While the’contract states .that it shall oot !‘obligate the 

cbastable” ve believe the agreement as a whole Interjects an 

impermissible influence aod has a substaotial and rul effect on the 

exercise of discretion as to the deolovment of deputy oeace officers . - 

by the constable, or the sheriff, as the case may be. - The court lo 

Weber v. City of Sachse. 591 S.U.Zd 563 (Tex. Civ. App. - Dallas 1979. 

no writ). discussed the sheriff’s law aaforcemeot discretion regarding 

deployment of his deputies. The case concerned a suit by Incorporated 

municipalities seeking a writ of mandamus compelliog the sheriff to 

patrol vithin their boundaries. The county had elected to patrol only 

the unincorporated areas of the county. The court held that this was 

a proper exercise of the county’s discretionary authority as to the 

level of law enforcement protection and that the sheriff could not be 

compelled to provide patrols as requested because 

his decisions as to the deployment of law 

enforcement officers within the county are left to 

his discretion and judgment since this matter Is 

not specifically prescribed by law. 

p. 230 
Honorable William A. Heitaen - Page 3 (JM-57) 

Id. at 567. While we certainly agree with the court’* holding that a 

district court cannot Interfere with the exercise of discretion by the 

county regarding law enforcement, we do not believe that such 

discretion sanctions the execution of a legally impermissible 

contract. 

The court in Murray v. Rarrfs. 112 S.W.Zd 1091 (Tex. Civ. App. - 

Amarillo 1938. writ dism’d). held that the county sheriff could not 

contract away his discretion to appoint and discharge his d.eputlea at 

his pleasure es authorized by article 6869. V.T.C.S. The court held 

that an employment contract with a deputy guaranteeing employmsnt for 

the duration of the sheriff’s’ term was void and unenforceable. The 

court stated that the effect of the -contract. signed by the sheriff, 

would be 

to abrogate and abandon the important option 

placed in him by law to terminate the employment 

at his will or pleasure. 

Id. at 1093. 

- 

It la our opinion that a county sheriff or constable may not, 

through a contract executed by the commissioners court; contract avay 

or restrict his discretionary duty regarding the appointment, 

assignment. and deployment of deputy peace officers. We believe that 

the agreement to provide law eoforcemeot protection. -an obvious 

governmental ~function and police power of thei county. Is void as 

contracting away such authority. The court in Clear Leke -City Water 

Authority v. Clear Lake Utilltiea Company. 549 S.W.2d 385 (Tex. 1977). 

held that a water district could not 

, 

by contract or otherwise, bind itself in such l 

vay as to restrict its free exercise of [its] 

~governmental powers. 

Id. at 391. See also Texas Power 6 Light Company v. City of Garland, 

431 S.W.2d 511 (Tex. 1968) (contracting avay police power); Pittmao v. 

, 598 S.W.Zd 941 (Tex. Clv. App. - Amarillo 1980, writ 

idelity Land 6 Trust Company of Texas v. City of West 

University Place, 496 S.U.Zd 116 (Tex. Civ. App. - Houston (14th 

Dist. 1 1973. writ ref’d 0.r.e.) (sever eesements - surrender of 

govekmentai power by contract); 

Control and Improvement District. 

Beaumont 1955. writ ref-‘d n.r.e.) (contract abdicating police pover of 

water district void and illegal); City of Belleview v. Belleview Fire 

Fighters. Inc., 367 So.2d 1086 (Fla. Dlst. Ct. App. [lst Disc.) 1979) 

(contract taking discretion in fire fighters policy away from 

municipal corporation resclnded). 

Several courts and attorneys general have discussed "law 

enforcement by contract” schemes but have not discussed their basic 

p. 239 
Honorable Willlam A. Meltsen - Page 4 (Jh-57) 

legality. The case of Hudson v. St. Louis Southwestern Railway 

Company of Texas, 293 S.W. 811 (Tex. Comm’n App. 1927. holding 

aooroved) concerned a wrongful death action which arose as a result of . . - 

a state ranger being assigned to protect the property of the railway 

company. The railway company had applied to the governor for the 

special appointment of state rangers during a labor strike. It was 

agreed that the company would pay the salaries and expenses of the 

peace officers. There was 00, discussion in the case as to the 

legality of such arrangement; the court simply held that the ranger 

was acting vlthio an employment capacity of the company thereby 

imposing liability oo the company for wrongful death. The holding and 

the facts In Lancaster v. Carter. 255 S.U. 392 (Tex. 1923) are similar 

to Hudson. Deputy sheriffs had been appointed and assigned to guard 

the property of a railroad company. The sheriff admitted that he 

exercised no supervision or had any knowledge of the acts of the 

deputy. The deputy was compensated exclusively and directly by the 

railroad company. The court held the deputy to be an employee of the 

company and the latter liable for the wrongful death by the deputy. 

Furthermore, the court stated that 

[t]he sheriff had no authority to appoint or 

detail a deputy to guard and watch the property of 

the railroad, except in specific cases of 

threatened injury. 

Id. at 393. The court in Texas and N.O.R. Company v. Parsons, 113 

G. 914 (Tex. 1908). similarly held that a deputy peace officer 

assigned to protect railroad premises was acting as-an employee of the 

company. making the latter liable for the wrongful death at issue in 

the case, and that the sheriff had no, authority to make such an 

appointment. 9 

10 Attorney General Opioioo O-4338 (1942). this office concluded 

that Humble Oil and Refining Compaoy could not hire a deputy sheriff 

to guard its oil storage tanks and other property. The company had 

agreed to pay the county the monthly salary of the deputy assigoed. 

In the opinion it was atated: 

Under the facts as submitted In your letter, this 

deputy is to be assigned to guard the oil storage 

plaots and oil wells of a private concern. He 

will of necessity have to devote his entire time 

to this task, and will not be available for 

assignment e.lsewhere. He will not be subject to 

the orders of the sherlf f nor will he be 

responsible to him. Under these circumstances. it 

is our opinion that the sheriff would have no 

authority or legal right to issue a commission to 

a person to perform such services. 

Id. at 4. 

- 

p. 240 
Honorable Ullliam A. Meitzen - Page 5 (~~-57) 

r. 

In Attorney General Opinion O-207 (1939). this office determined 

that the sheriff could not issue comissions to. that Is. deputize. 

persons acting AA “watchmen. poundmasters, And others whose business 

requires them to carry large sums of money on their persons.” ~The 

sheriff may not Appoint A special deputy to patrol in annual county 

cqlebration without complying with the certlficAtion requirements for 

peace officers, Attorney General Opinion H-1002 (1977). nor may the 

sheriff appoint “special deputies” who Are AssignAd no official 

duties. See Attorney General Opinion V-699 (1948). 

- 

The appecrls court in Bounty Bellroom v. Bain, 211 S.W.Zd 248 

r- 

(Tex. civ. App. - Amarillo 1948. vrlt ref’d n.r.e.1. gAve tacit 

approval of Lou enforcement by contract Arrangements. ThL~ city bf 

Dallss, A home rule city, had passed AII ordinance permitting dAnce 

hall operators to request the assignment of e “specie1 police officer” 

to the business premises for which the owner paid then city en 

established fee. The power ‘of supervision and Assignmsat of the 

special officers. remained. under the ordinance. with the city’s chief 

of police. Also, under the “Dance Hall Code” the wages of the special 

officers CAIN strictly from the fees received from the various 

business establishments. A peace off1ce.r engaged ~~8s involved in A 

scuffle while evicting A patron at the dance hall. inflicting injuries 

for vhich the patron sued the owners And the officer. The issue and 

holding of the case concerned whether the owners were liable under the 

master-servant doctrine, or whether the officer was pursuing his 

duties As A public official for which the owners Are sot ii-able. We 

believe.that Any language In the opinion approving manner of contract 

Is dicta And contrary to Authorities her+ relating.specifically to 

county peace officers; such authority to contract WAS not litigated in 

the case nor essential to its holding. Furthermore, WC believe the 

case is inapplicable because it pertained to the nuthorlty of A home 

rule city rather than to A county. 

The deputy is paid by the county, At IeAst facially. We believe 

it is not necessary to discuss the basic rule of low that A public 

officer mry not Accept compeneation from third parties or privAte 

sources for the performsnce of official dutias. Knsling v. Morris, 9 

S.W. 739. 740 (Tex. 1888)1 See Penal Code 536.02 (brlbcry); Attorney 

General Opinion C-661 (1966)(county sheriff’s Authority to contract 

with municipality) ; Attorney General Opinion O-773 (1939) (deputy 

sheriff mey not become employed by dance hall And Accept 

compensation). Attorney General Opinion O-1565 (1939) Also concluded 

that A deputy constable may not be employed And paid by A tavern to 

enforce the IAV. The opinion stated: 

,- 

A constable only has the legal right to Accept 

compensation prescribed for him by law and that he 

may not legally accept compensation from private 

sources for patrolling And. performing his duties 

of enforcing the law. 

p. 241 
Honorable William A. Meltzen - Page 6 (JM-57) 

Id. At 6. 

- 

BeCAuse the agreement In question provides that it shall not 

“obligete” the county And that the Assigned officers remsin under the 

supervision of the elected peace officer. and thereby, Arguably. 

making inAppliCAble the Authorities discussed above prohibiting 

ContrActlng *way such responsibilities. we believe it Is necessary to 

discuss public policy And constitutional questions. The appearance of 

impropriety. the potentinl for conflicts of interest, And the 

potential for less than impartial enforcement of the law. are matters 

for serious considArAtlon when LAW enforcement officers knov that 

their positions nre supported and funded voluntarily by persons they 

police. Furthermore; we believe the bnre~ cost items of reimbursement 

to the county -- Automobile expenses And SAlAries -- do not AdeqUAt8ly 

cover the full value received by the nssociation in the purcha88 of 

the county’s nnme. speciA1 authority. and the “good will.” AS it were. 

of the county. Such Aspects of official imprimatUr are of value and 

ore conveyed gratis to A defined group of individuals In violation of 

article III, section 52. of the Texas Constitution. which denies 

pOlitiCA subdivisions the authority “to grant public money or thing 

of value in ald of, or to any individual, sssociatlon or corporation 

whatsoever.” Although we nre imputing no improper motives to those 

wishing to secure law enforcement protection in this manner. we 

believe that permitting A group of economically able persons to 

purchase additional protection is fraught with potential for abuse And 

is An unorthodox manner of conducting the affairs of government. The 

proper manner with which to Increase the level of lab enforcement 

protection offered by the county is. ~~eithAr._An~~increase in county 

taxes, A reallocation by the commissioners court of the Available 

county revenue. or municipal incorporation. We believe that when An 

Area within the unincorporAged portion of the county has such A 

pressing need for the law enforcement protection contemplsted by the 

agreement. there probsbly existA sufficient rensons fo,r the territory 

to incorporate and create their owe law enforcement agency. The 

parties pay then clearly be entitled to contract for law enforcement 

protection under the Interlocal Cooperation Act. Article 4413 (32~). 

or article 999b. V.T.C.S.. which pertains to interlocal nssistaace 

among lnv enforcement officers. Even without incorporatlon. there is 

Adequate provision in stnte lnw permitting private concerns to hire 

security services. The Private Investigators and Private Security 

Agencies Act, article 4413(29bb), V.T.C.S., permits A person, 

Association. or corporation to employ the services of A “guard 

company” to provide A “private WatChmn, guard or street patrol” to 

protect private property And protect persons from bodily harm. Id. 

§2(4). These considerations. in addition to restriction of discret% 

discussed above. in our ooinion render the asreement In auestlon here 

void As AgAinSt~public policy And unconstitutional. See ‘Hazelwood v. 

handrell Industries Company, Ltd., 596 S.W.Zd 204 (Tz Civ. App. - 

Houston [lst Dist.] 1980. writ ref’d n.r.e.1; Locomotive Engineers and 

Conductors Mutual Protective Association v. Bush, 576 S.W.2d 887 (Tex. 

-... 

p. 242 
HonorAble Willlam A. Meitzen - Page 7 (~~-57) 

Cl”. App. - Tyler 1979. no writ); Restatement (Second) of Contracts 

5179 (1979). 

The funding for county lnv enforcement protection comes from the 

general fund of the county which is generated by tAX revenues and 

other legitimate county fees And charges. The commissioners court is 

vested with discretion with rAgArd to the allocation of this public 

money for law enforcement and has the duty to AdeqUAtelY fund the 

v. Commlssior 

sheriff’s office. See V.T.C.S. Arts. 3899.w3g99b. 3902, 3Y12k; Vondy 

hers Court of Dvalde. 620 S.W.Zd 104 (Tex. 1981) 

(commissioners court required to set t reasonnble salnry for constable); 

cf. Attorney CenerAl Opinion H-1190 (1978) (duty to fund county jnil). 

In our opinion, neither A county, A sheriff, nor A constnble is 

empowered to enter into A contrnct with privnte entities or homeowners 

to furnish them specinl law enforcement protection unAvAilAble to 

others. All such agreements A’re void And unenforceable. Cf. Attorney 

General Opinion MU-236 (1980) (deputy sheriff acting asfndependent 

contractor during off-duty hours). Although protection not AVAilAble 

to others might be furnished to Areas or persons in the exercise of A 

reasonable ~discretion based on general public need, Weber v. City ~of 

Sachse. suprs. county officisls Are not At liberty to base such 

decisions on the wishes of private groups to have public equipment And 

personnel specially devoted to their interests. or upon the 

willingness of such groups to pay therefor. See Ex parte Cower. 357 

S.W.2d 740 (Tex. 1962). 

- 

SUMMARY-- . _^ _ _- - --- _ . 

A county may not contract with A homeowners 

associntion to provide la+ enforcement protection ’ 

by county peace officers. I I 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First ASsistAnt Attorney Genera3 

DAVID R. RICHARDS - 

Executive ASSiStAnt Attorney General 

Prepared by David Brooks 

Assistant Attorney General 

p. 243