JIMMAlTOX AttorneyGeneral

Supreme Cauft Suildlng P.0. Box1254S Austln. TX. 78711. 2548 51214752501 Telex 9101824.1267 Telecopier 512/475-g258

714Jackson. Suite 7W Dallas. TX. 752024506 21U742-59U

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AnEqual Opportunity/ Attirmative Action Employer 

# TheAttorney GeneralofTexas

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 asto the constitutionality of the practice. Younotcl 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,

_,~ yourequest anopi+.qn,op the following question:

-._.~.. Whether a county sheriff or constable may contract with a private homeowners association to furnish it lawenforcement services, particularly in view of the passage of Senate Bill No. 245.

. . . Ouranswer to your question will focus on the sheriff's office, but the discussiol will also apply to the constable's office. A sheriff andaconstable 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 anongovernmental 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. Thefees for law ebforcement services are to be established by the commissioners court according tostatutory guidelines andpaid into the general fund

p. 2337 Honorable RayKeller Opinion No. JM-509 Chairman Cmittee onLawErforcement Re: Whether asheriff or constable Texas Rouse of~Repxeaentatives mayprovide lawenforcement services P. 0. Box2910 under contract with aprivate 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 whois toprovide 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 waselected or appointed.
(b) If the ,rheriff or county official agrees to provide the services, the sheriff or official mayprovide the services by using deputies. The sheriff or courty official retains authority% supervise the diputies who provide the services and, in anemerfoncy. mayreassign 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 todoploy 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., herelinquishes authority to order themto other duties, except in anemergency, 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 aprivate entity. It is therefore unconstitutional under article II, section 1 and article III, section 1of 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 ofwhich shall beconfided toaseparate body ofmagistracy, towit: 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 anypower properly attached to eit.h.er of the others, except in the instances herein expressly permitted.

p. 2338Honorable RayKeller - Page 3 (JM-509)

Article III. section 1. provides:

The Legislative power of this State shall be vested in aSenatmeand House of Representatives, which together shall bystyled 'The Legislature of the State ofTexas.'

These provisions prohibit the legislature from delegating its power to enact laws. BrownV. Rumble Oil 6Refining Co.. 83S.W.2d 935 (Tex. 1935). Thelx?lature's power under article V, section 23 of the Texas Constitutioc to prescribe the sheriff's "duties and prerequisites" mustbeexex,cised consistently with article~~I1, section 1, and article III, sect,Lon 1 of the constitution. Although the legislature maycontrol the,sheriff's discretion, it maynot authorize
aprivate entity todoso.
If the legislature declares a policy and fixes a primary standard, it maydelegate to an administrative body or office the power to promulgate rules and prescribe details to carry out the legislative purpose. Brownv. 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 aprivate individual or entity. Carter v. Carter Coal Co., 298U.S. 238 (1936) (wage andhour regulations for czal industry maynot be determined byvote 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 andsetting 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 toapprove or disapprove connections to sewer system); Willis 2'. Town of Woodruff, 20S.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 makeadop:ion of rules contingent on two-thirds vote of licensed optometrists). See also Spannv. City ofDallas, 235S.W. 513 (Tex. 1921) (ordinance which makes construction of abusiness in a residential district contingent onconsent of adjacent property owners is void as improper exercise of the police power); Texas Pharmaceutical Assn. v. Dooley, 90S.W.2d 328 (Tex. Civ. App. -Austin 1936, no

p. 2339Honorable RayKeller - Page 4 (JM-509)

writ) (finding invalid stawte authorizing State Board of Pharmacy to transfer licensing fees to private corporation not under state control).

Thelegislature mayut;eaprivate entity to implement its policy, but maynot cede legislatira discretion tothat entity. See Attorney General Opinions M-68 (196;‘); V-736 (1948); V-265 (1947) (authority of state licensing agency to ‘aaeexamination prepared byprivate testing service). See also Holmes,v. RoemakoEospital. 573 P.2d 477 (Aria. 1977) (public hospis-requirement that staff physicians have malpractice insurance is nD,timproper delegation); Parker v. Board of Behavioral Science Examinezs, 125Cal. Rptr. 96 (Cal. App. 3d 1975) (requirement that licens&erl have graduated from anaccredited 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 topatrol 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 topayfor lawenforcement 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 avalid 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 anongovernmental entity to provide lawenforcement services is invalid, asanattempt to delegate leg:.olative power to aprivate entity inviolation of article II, section 1, andarticle III. section 1, of theTexas Constitution.

J-I M MATTOX Attorney General ofTexas

p. 2340Honorable KayKeller - Page 5 (JM-509)

JACKHIGHTOWER First Assistant Attorney Gmeral

MARYKELLER Executive Assistant Attormy General

RICKGILPIN Chairman, Opinion Coumittec: Prepared bySusan L. Garrimn Assistant Attorney Generals

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