# TheAttorney GeneralofTexas

**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** BendCountyCourthouse Richmond,T&r 77469 Opinion No. Jk+57

Bc: Whether a county sheriff
or constable maycontract with
a private homeowners assoclatioo 

### to furnish it law enforcementservices
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 

### fromthis 

### office andTexas courts, and

### it ie
our understanding that such apractice 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,OODor less~to constmct 

## l od,maintaio private rbads for a reasouable 

### charge. but ooother caartitutiona~ pr&yisioo. of which we are aware permits~~cootm~~~ 

### of this tituri.


### T%epollcC~-power 6f the ata&‘is ‘a fkndameotalattribute of. eovereigoty, l

udtheTexas Coirstitirtim- ,rcquirer **that the**  powers 

### of governmeatbe confided ooly to bodies ‘of “magistracy.” Tex. Coost. art. II. 41. See City 

### of Dallas **v. ‘** **Smith, 107** S.W.Zd 872 (Tu. 1937). 10our opioionzounty officers mayoot subject their lav enforcement respoosibilitlea and functions 

### to private control or dircctiun. See 72Am.Jur. **2d**States, Territories andDependencies, Il. at 406 (19m (duties **of** the state).

Asheriff.: 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 makearrests, 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 homeownersHonorable 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. YOUhave furnished us a copy of the contract between Fort Bend County and the **Sugar** Creek Homes**Association,** a Texas corporation (whose property maybe 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 whoshall “devote substantially all of their working time to the area knownas Sugar Creek” andwhose “salaries and expenses” will be~paid by the association to the county. The agreement calls forktventy-four hour protection. The contract provides for payments to the county in the aggregate amount of $120.000 over the twelve monthtermof 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 numberof 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
assumethat anyactivity 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 aproper 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 maybe.- The court lo Weberv. City of Sachse. 591S.U.Zd 563 (Tex. Civ. App. - Dallas 1979.
nowrit). discussed the 

### sheriff’s lawaaforcemeotdiscretion regarding deployment of his deputies. Thecase concerned a suit by Incorporated municipalities seeking a 

### writ of mandamuscompelliog the 

### sheriff to patrol vithin their boundaries. Thecounty hadelected 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. 230Honorable William A. Heitaen - Page 3 (JM-57)

Id. 

### at 567. While wecertainly 

### 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. 112S.W.Zd 1091 (Tex. Civ. App. - Amarillo 1938. writ dism’d). held that the county sheriff could not contract awayhis 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 employmentcontract with a deputy guaranteeing employmsntfor 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 himby law to terminate the employment at his will or pleasure.
Id. at 1093.
- It la our opinion that a county sheriff or constable maynot, 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. Webelieve 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.549S.W.2d 385 (Tex. 1977). held that awater 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 6Light Companyv. City of Garland, 431 S.W.2d 511 (Tex. 1968) (contracting **avay** police power); Pittmao v.

, 598S.W.Zd 941 (Tex. Clv. App. - Amarillo 1980,writ idelity Land6Trust 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. Beaumont1955.writ ref-‘d n.r.e.) (contract abdicating police pover of water district void and illegal); City of Belleview v. Belleview **Fire** Fighters. Inc., 367So.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. 239Honorable Willlam **A.** Meltsen - Page 4 (Jh-57)

legality. The case of Hudson v. St. Louis Southwestern Railway Companyof Texas, 293 S.W. 811 (Tex. Comm’nApp. 1927. holding aooroved) concerned awrongful death action which arose as a result of

**. .**  **-** a state ranger being assigned to protect the property of the railway company. The railway companyhad applied **to** the governor for the special appointment of state rangers during a labor strike. It was agreed that the companywould 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 companyfor wrongful death. Theholding and the facts In Lancaster v. Carter. 255S.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 anemployee of the companyand 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 andwatch the property of the railroad, except in specific cases of threatened injury.
Id. at 393. The court in Texas and N.O.R. Companyv. Parsons, 113 G. 914 (Tex. 1908). similarly held that a deputy peace officer assigned to protect railroad premises was acting as-an employeeof 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 HumbleOil and Refining Compaoycould not hire a deputy sheriff to guard its oil storage tanks and other property. The companyhad 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. Hewill 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
aperson to perform such services.

Id. at 4. -

p. 240Honorable **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. personsacting AA“watchmen. poundmasters, Andothers whose business requires themto carry large sumsof moneyon their persons.” ~The sheriff maynot 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. SeeAttorney 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, 

### Ahomerule city, had passed **AII** ordinance permitting dAnce hall operators to request **the** assignment of 

### e“specie1police officer” to the business premises for 

### which the owner paid 

### thencity 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”

### thewages 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 Apatron at the dance hall. inflicting injuries for 

### vhich the patron **sued** the owners Andthe officer. The issue and holding of the case concerned whether 

### theowners were liable under the master-servant doctrine, or whether **the** officer was pursuing **his** duties As Apublic official for 

### whichtheowners Are sot ii-able. We believe.that Anylanguage In the opinion approving mannerof contract Is dicta Andcontrary 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, WCbelieve the
case is inapplicable **because** it pertained to **the** nuthorlty of Ahome rule city rather than to Acounty.
Thedeputy is paid by the county, At IeAst facially. Webelieve 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 Adeputy constable maynot be employed Andpaid by A tavern to enforce the IAV. Theopinion stated:

,- A constable only has the legal right to Accept compensation prescribed for himby law andthat he maynot legally accept compensation from private
sources for patrolling And.performing his duties 

### of enforcing the law.

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

Id. At 6. - BeCAuse the agreement In question provides that it shall not “obligete” the county Andthat 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. webelieve it Is necessary to discuss public policy Andconstitutional questions. Theappearance 

### 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 LAWenforcement officers knov that their positions nre supported and funded voluntarily by persons they police. Furthermore; webelieve the bnre~cost items of reimbursement to the county -- Automobile expenses AndSAlAries -- donot AdeqUAt8ly
cover the full value received by the nssociation in the purcha88 of the county’s **nnme.** speciA1 authority. and the “goodwill.” **AS** it were. of the county. Such Aspects of official imprimatUr are of **value** and
ore conveyed gratis to Adefined group of individuals In violation of article III, section 52. of the Texas Constitution. which denies **pOlitiCA** subdivisions the authority “to grant public moneyor 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 Anunorthodox mannerof 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. Webelieve that whenAn 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 amonglnv enforcement officers. Evenwithout 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 Andprotect 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 Andunconstitutional. 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, 576S.W.2d 887 (Tex. -...

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

Cl”. App. - Tyler 1979. nowrit); Restatement (Second) of **Contracts** 5179(1979).
The funding for county lnv enforcement protection comesfrom the general fund of the county which is generated by tAX revenues and other legitimate 

## countyfees Andcharges. 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) t reasonnble salnry for constable); (commissioners **court** required to set cf. Attorney CenerAl Opinion H-1190 (1978) (duty to fund **county** jnil).

In our opinion, neither Acounty, **A** sheriff, nor Aconstnble is empoweredto enter into Acontrnct with privnte entities or homeowners to furnish **them** specinl law enforcement protection unAvAilAble to others. All suchagreements A’revoid Andunenforceable. 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 onthewishes 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 Exparte 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

TOMGREEN First ASsistAnt Attorney Genera3

DAVIDR. RICHARDS - Executive **ASSiStAnt** Attorney General Prepared byDavid Brooks Assistant Attorney General

p. 243