ATTORNEY GENERAL OF TEXAS GREG ABBOTT

The Honorable Yvonne Davis Chair, Comniittee on Urban Affairs Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768-2910 Dear Representative Davis: February 17,2010
Opinion No. GA-0760 Re: Authority of a sheriff to accept a fee from a private organization that contracts with the sheriffs county to operate the countyjail (RQ-0823-GA)

You ask several questions involving section 351.101 of the Local Government Code.! Section 351.101 provides, in relevant part, that: The commissioners courtofa county, withthe approval ofthe sheriff of the county, may contract with a private organization to place inmates in a detention facility operated by the organization. The commissioners courtmaynot contractwith aprivate organization in which a member of the court or an elected or appointed peace officer who serves in the county has a financial interest
. . .. A contract made in violation ofthis section is void. TEX. Loc. GOV'T CODE ANN. 

### § 351.101 (Vernon 2005). You describe, generally, a situation in which a county and a private organization have entered into a contract under section 351.101. 

### See Request Letter at 1. You tell us that the person holding the office ofcounty sheriffwould be paid anadministrative fee bythe private organization "baseduponinmate count" and "ostensibly" for the sheriffs administrative responsibilities with respect to the contract. 2 

### Id

ISee Request Letter at 1-2 (available athttp://www.texasattomeygeneral.gov). 2We received a briefaverring that the contract structure utilized in a particular county is different from the contract structure describedin therequest andthatthe sheriff receives only a salaryfrom the county. Brieffrom Michael W. Dixon, Haley & Olson, P.C. at 2 (Oct. 5,2009) (on file with the Opinion Committee). We answer only the general questions posed in the Request Letter, and in doing so we must rely on the factual representations ofthe one requesting our opinion. See Tex. Att'y Gen. Op. No. GA-0249 (2004) at 2 (stating that fact questions cannot be answered in the opinionprocess and assumingthatthe request letter has provided a "correctand complete version ofthe facts"); see also Tex. Att'y Gen. Op. No. H-772 (1976) at 6 (relying on facts as presented in the request letter). A court considering a specific contract and a specific set offacts could arrive at a different conclusion.The Honorable Yvonne Davis- Page 2 (GA-0760)

You. state that because a county may not enter into such a contract forjail services without the sheriff's approval, a situation involving the sheriffs personal acceptance of a fee paid by a private organization raises the following questions: 1. Is there any constitutional or statutory authority which allows a sheriff to be offered or to accept an administrative fee paid by a

. private organization? 2. Does the acceptance ofsuch an administrative fee by the sheriff constitute or is it tantamount to having a "fmancial interest" in the private organization which violates Section 351.101 of the Texas Local Government Code and causes the contract to be void? 3. Is the payment or acceptance of an administrative fee to the sheriff, who must first approve the contract**betw~en** the county and a private organization wishing to operate a facility for county prisoners, a violation ofany criminal laws? 

### Id at 1-2. Because you do not ask about a particular contract, we can address your questions only generally. 

### See id at 1 (noting several such contracts in Texas but stating that the request is not "requesting an opinion for any certain contract"). First, you askbroadly about a sheriff's authorityto accept an administrative fee from a third party. 

### See id at 1 (noting also that a "sheriff's salary/compensationincludes being paid for the safe keeping of county prisoners"). Article XVI, section 61 of the Texas Constitution requires that "county officers in counties having a population of twenty thousand (20,000) or more . . . be compensated on a salary basis." 

### TEx. CONST. art. XVI, 

### § 61(a); 

### see also id. art. V, 

### § 23 (providing for election ofsheriffby countyvoters). Incounties with a population oflessthantwentythousand, the "Commissioners Courts have the authority to determine whether county officers shall be compensated on a fee basis or on a salary basis, withthe exception that it shall be mandatory upon the Commissioners Courts to compensate all sheriffs
... on a salary basis." 

### Id art. XVI, 

### § 61(c). Thus, regardless ofcounty population, county sheriffs must be compensated on a salary basis. A sheriff, paid on a salary basis, "receives the salary instead of all fees, commissions, and other compensation the officer would otherwise be authorized to keep." 

### TEx. Loc. GOV'T CODE ANN. 

### § 154.002 (Vernon 2008); 

### see also Moore v. 

### Sheppard, 192 S.W.2d 559, 560 (Tex. 1946) (associating officer's "fees of office" with fee charged for performance of the officer's official duties). While article XVI, section 61 requires that a fee ofoffice earned by a county officer "shall be paid into the county treasury," it is not a grant ofauthority for the acceptance of a fee. 

### TEx. CONST. art. XVI, 

### § 61(d); 

### cf

### TEx. Loc. GOV'TCODEANN. 

### § 154.005(c) (Vernon 2008) (permitting Sheriff to receive reward for apprehended criminal or stolen property). In addition, the Local Government Code expressly places the authority to establishthe "amount of
... compensation" for county officers withthe county commissioners court. 

### See 

### TEx. Loc. GOV'T CODEANN. 

### § 152.011 (Vernon2008) (authorizingthecommissionerscourtto setthecompensationfor countyofficerspaidThe Honorable Yvonne Davis- Page 3 (GA-0760)
whollyfrom countyfunds). Accordingly, weconcludethatneithertheTexas ConstitutionnorTexas statutes authorize a county sheriffto accept from a private organization an administrative fee such as you have described. Second, youinquire whetherthe sheriff's acceptance of the administrativefee from a private organizationconstitutesoristantamounttoa "financialinterest"undersection351.101. See Request Letter at 2. Because of our conclusion that there is no authority for a sheriffto accept the fee described, we need not address this question. Third,youaskwhetherthe sheriff's acceptance ofanadministrativefee violates any criminal laws. 

### Id Whetherparticularconductconstitutes a violationofa criminal statute involves questions offact that are outside the purview ofthe opinion process. See Tex. Att'y Gen. Op. No. GA-0485 (2006) at 4 (noting that questions involving issues offact are outside the Attorney General opinion process).The Honorable Yvonne Davis- Page 4 (GA-0760)



### SUMMARY Neither the Texas Constitution nor Texas statutes authorize the person holding the office of county sheriff to be paid an administrative fee by a private organization.

ANDREW WEBER First Assistant Attorney General JONATHAN K. FRELS Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Charlotte M. Harper Assistant Attorney General, Opinion Committee