JIM MAlTOX 

Attorney General 

Supreme Cauft Suildlng 

P. 0. Box 1254S 

Austln. TX. 78711. 2548 

51214752501 

Telex 9101824.1267 

Telecopier 512/475-g258 

714 Jackson. Suite 7W 

Dallas. TX. 752024506 

21U742-59U 

4524 Alberta Ave.. Suite 150 

El Paso. TX. 799052793 

915axKuS4 

,->l Texas. Suite 700 

..wsto”. TX. 77002-3111 

713l22555a5 

806 Broadway, Suite 312 ‘-. 

Lubbock. TX. 794015479 

8081747.5239 

4309 N. Tenth. Suite B 

McAllen. TX. 79501.15S5 

5t2mB2.4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 75205-2797 

51212254191 

An Equal Opportunity/ 

Attirmative Action Employer 

The Attorney General of Texas 

June 30, 1986 

You state that the Sixty-ninth Legislature enacted Senate Bill 

No. 245, which permits private groups to contract with a county for 

additional police :?ersonnel. Acts 1985, 69th Leg.~, ch. 219 at 1764. 

Questions were raicied during debate as to the constitutionality of the 

practice. You notcl that Attorney General Opinion JM-57 (1983), issued 

prior to the enactment of Senate Bill No. 245. determined that such 

contracts were il:Lagal. and that this opinion casts doubt on the 

validity of such contracts under Senates Bill No. 245. Accordingly, 

_,~ 

you request an opi+.qn,op the following question: 

-._. ~.. 

Whether a county sheriff or constable may 

contract with a private homeowners association to 

furnish it law enforcement services, particularly in 

view of the passage of Senate Bill No. 245. . . . 

Our answer to your question will focus on the sheriff's office, 

but the discussiol will also apply to the constable's office. A 

sheriff and a constable both hold elective offices established by the 

Texas Constitution. Tex. Const. art. V, §§18, 23. They are both 

peace officers, with duties prescribed by statute. Tex. Code Grim. 

Proc. art. 2.12; see Tex. Const. art. V, 123 (sheriff's duties 

prescribed by legislature); V.T.C.S. art. 6885 (constable to perform 

duties required by law). Both officers have power to appoint 

deputies. V.T.C.S, arts. 3902, 6809, 6879a. 

Senate Bill No. 245 has been codified as article 1581b-2, 

V.T.C.S., to "prwect the public interest," a county commissioners 

court may contract with a nongovernmental association for the county 

to provide law en!iorcement services in the geographical area represented by the aswciation. V.T.C.S. art. 1581b-2. §I. The fees for 

law ebforcement services are to be established by the commissioners 

court according to statutory guidelines and paid into the general fund 

p. 2337 

Honorable Ray Keller Opinion No. JM-509 

Chairman 

Cmittee on Law Erforcement Re: Whether a sheriff or constable 

Texas Rouse of ~Repxeaentatives may provide law enforcement services 

P. 0. Box 2910 under contract with a private homeAustin, Texas 78169 owner8 association, in light of 

article 1581b-2, V.T.C.S. 

Dear Representative Keller: 
Honorable gay Keller - Pag, 2 (JH-509) 

of the county. Id. 12. The commissioners court must secure the 

agreement of the county peace officer who is to provide the services: 

Sec. 3. (a) The commissioners court may 

request the sheriff of the county or a county 

official who h,as law enforcement authority to 

provide the semices in the geographical area for 

which the official was elected or appointed. 

(b) If the ,rheriff or county official agrees 

to provide the services, the sheriff or official 

may provide the services by using deputies. The 

sheriff or courty official retains authority% 

supervise the diputies who provide the services 

and, in an emerfoncy. may reassign the deputies to 

duties other thzzi those to be performed under the 

contract. (Empt’;isis added). 

V.T.C.S. art. 1581b-2, 03. 

The sheriff’s decisions as to deployment of his deputies within 

the countv are left to !his discretion where this matter is not 

specifically prescribed by law. Weber v. City of Sachse, 591 S.W.Zd 

563 (Tex. Civ. App. - Dallas 1979, no writ). Article 1581b-2, ? 

V.T.C.S., purports~ to allow a private association to control the 

sheriff’s discretion to doploy his deputies. If the sheriff agrees to 

provide his deputies to carry out a contract. entered into under 

article 1581b-2,~ V,.T.C.S., he relinquishes authority to order them to 

other duties, except in an emergency, during the times the contract 

assigns them to the gecgraphical area represented by the private 

association. Article l!;f;lb-2, V.T.C.S., attempts to authorize a 

delegation of the sheriff’s official discretion to a private entity. 

It is therefore unconstitutional under article II, section 1 and 

article III, section 1 of the Texas Constitution. 

Article II. sectior 1 of the Texas Constitution provides as 

follows : 

The powers af the Government of the State of 

Texas shall be divided into three distinct departments, each of which shall be confided to a separate 

body of magistracy, to wit: Those which are Legislative to one, those which are Executive to another, 

and those which are Judicial to another; and no 

person, or collaction of ,persons, being of one of 

these departments, shall exercise any power properly 

attached to eit.h.er of the others, except in the 

instances herein expressly permitted. 

p. 2338 
Honorable Ray Keller - Page 3 (JM-509) 

Article III. section 1. provides: 

The Legislative power of this State shall be 

vested in a Senatme and House of Representatives, 

which together shall by styled 'The Legislature of 

the State of Texas.' 

These provisions prohibit the legislature from delegating its 

power to enact laws. Brown V. Rumble Oil 6 Refining Co.. 83 S.W.2d 

935 (Tex. 1935). The lx?lature's power under article V, section 23 

of the Texas Constitutioc to prescribe the sheriff's "duties and 

prerequisites" must be exex,cised consistently with article~~I1, section 

1, and article III, sect,Lon 1 of the constitution. Although the 

legislature may control the, sheriff's discretion, it may not authorize 

a private entity to do so. 

If the legislature declares a policy and fixes a primary 

standard, it may delegate to an administrative body or office the 

power to promulgate rules and prescribe details to carry out the 

legislative purpose. Brown v. Rumble Refining Co., D; Margolin v. 

-- 

State, 205 S.W.2d 775 (Tea:. Grim. App. 1947). Legislative power may 

not be delegated to the uncontrolled discretion of a private individual or entity. Carter v. Carter Coal Co., 298 U.S. 238 (1936) (wage 

and hour regulations for czal industry may not be determined by vote 

of producers and miners); Calvert v. Capital Southwest Corp., 441 

S.W.2d 24i (Tex. Civ. App. -- Austin 1969. writ ref'd n.r.e.); a 

dism...397..U.S.,321 (1970) (legislature cannot delegate to Congress or 

a Business Administrat,ion power to declare requisites of mutual 

investment company); Rosnc!r v. Peninsula Hospital District, 36 Cal. 

-- 

Rptr. 332 (Cal. App. 1964) (public hospital could not require that 

staff physician carry ma:lpractice insurance); City of Bellview v. 

Belleview Fire Fighters, 367 So.2d 1086 (Fla. Dist. Ct. App. [lst 

Dist.] 1979) (city could not delegate to fire fighting association all 

control over fire protection. including hiring of firemen and setting 

of fire fighting policies); C. Curtis Martin Investment Trust v. Clay, 

266 S.E.2d 82 (S.C. 1980) (former private owner of publicly owned 

sewer system could not hav! power to approve or disapprove connections 

to sewer system); Willis 2'. Town of Woodruff, 20 S.E.2d 699 (S.C. 

1942) (city could not make issuance of building permit for filling 

station contingent on permission from surrounding property owners); 

Attorney General Opinions K-41 (1973) (legislature could not empower a 

private association to regulate the relationship between dentist, 

patient, and third party which provides patient's dental benefits); 

C-73 (1963) (questioned lrhether Texas State Board of Examiners in 

Optometry could make adop:ion of rules contingent on two-thirds vote 

of licensed optometrists). See also Spann v. City of Dallas, 235 S.W. 

513 (Tex. 1921) (ordinance which makes construction of a business in a 

residential district contingent on consent of adjacent property owners 

is void as improper exercise of the police power); Texas Pharmaceutical Assn. v. Dooley, 90 S.W.2d 328 (Tex. Civ. App. - Austin 1936, no 

p. 2339 
Honorable Ray Keller - Page 4 (JM-509) 

writ) (finding invalid stawte authorizing State Board of Pharmacy to 

transfer licensing fees to private corporation not under state 

control). 

The legislature may ut;e a private entity to implement its policy, 

but may not cede legislatira discretion to that entity. See Attorney 

General Opinions M-68 (196;‘); V-736 (1948); V-265 (1947) (authority of 

state licensing agency to ‘aae examination prepared by private testing 

service). See also Holmes, v. Roemako Eospital. 573 P.2d 477 (Aria. 

1977) (public hospis-requirement that staff physicians have 

malpractice insurance is nD,t improper delegation); Parker v. Board of 

Behavioral Science Examinezs, 125 Cal. Rptr. 96 (Cal. App. 3d 1975) 

(requirement that licens&erl have graduated from an accredited institution does not delegate le~;islative authority to accrediting association). 

Under a contract authorized by article 1581b-2, V.T.C.S., a 

nongovernmental body could :insist that deputies assigned to patrol its 

property remain there, even if the public interest would be better 

served by their deploymient elsewhere. The statute is not a 

legislative limit on the sheriff’s discretion, but a legislative 

attempt to authorize a private entity to control the sheriff’s 

discretion. The nongovernmental association need not fulfill any 

requirements aside from readiness to pay for law enforcement services. 

No statutory controls are included to insure that contracts for law 

enforcement services~ will carry out the stated purpose of protecting 

the public interest. V.T.C.S. art. 1581b-2, 51. The statute instead 

~6~~6s~ the’ interest-.of-nlnl~e~mtal as6oci8ticm6 -In -guaranteeing 

themselves a particular ‘level of law enforcement services. We 

conclude that article 15811~2, V.T.C.S., is not a valid exercise of , 

legislative power. Its enactment does not alter the conclusion of 

Attorney General Opinion J&57. 

SUMMARY 

Article 15811~2. V.T.C.S., which attempts to 

authorize a munty sheriff or constable to 

contract with a nongovernmental entity to provide 

law enforcement services is invalid, as an attempt 

to delegate leg:.olative power to a private entity 

in violation of article II, section 1, and article 

III. section 1, of the Texas Constitution. 

J-I M MATTOX 

Attorney General of Texas 

p. 2340 
Honorable Kay Keller - Page 5 (JM-509) 

JACK HIGHTOWER 

First Assistant Attorney Gmeral 

MARY KELLER 

Executive Assistant Attormy General 

RICK GILPIN 

Chairman, Opinion Coumittec: 

Prepared by Susan L. Garrimn 

Assistant Attorney Generals 

p. 2341