ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

The Honorable Yvonne Davis 

Chair, Comniittee on Urban Affairs 

Texas House of Representatives 

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 county jail (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 court of a county, with the approval of the 

sheriff of the county, may contract with a private organization to 

place inmates in a detention facility operated by the organization. 

The commissioners court may not contract with a private 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 of this 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 of county sheriff would be paid 

an administrative fee by the private organization "based upon inmate count" and "ostensibly" for the 

sheriffs administrative responsibilities with respect to the contract.2 Id 

ISee Request Letter at 1-2 (available at http://www.texasattomeygeneral.gov). 

2We received a brief averring that the contract structure utilized in a particular county is different from the 

contract structure described in the request and that the sheriff receives only a salary from the county. Brief from 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 

opinion process and assuming that the request letter has provided a "correct and complete version of the 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 of facts 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 for jail services without 

the sheriff's approval, a situation involving the sheriff s 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 of such 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 of any 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 ask broadly about a sheriff's authority to accept an administrative fee from a third 

party. See id at 1 (noting also that a "sheriff's salary/compensation includes 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 of sheriff by county voters). In counties with a population ofless than twenty thousand, 

the "Commissioners Courts have the authority to determine whether county officers shall be 

compensated on a fee basis or on a salary basis, with the 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 of county 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 of office earned by a county officer "shall 

be paid into the county treasury," it is not a grant of authority 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 establish the "amount of ... compensation" for 

county officers with the county commissioners court. See TEx. Loc. GOV'T CODE ANN. § 152.011 

(Vernon 2008) (authorizing the commissioners court to set the compensation for county officers paid 
The Honorable Yvonne Davis- Page 3 (GA-0760) 

wholly from county funds). Accordingly, we conclude that neither the Texas Constitution nor Texas 

statutes authorize a county sheriff to accept from a private organization an administrative fee such 

as you have described. 

Second, you inquire whether the sheriff's acceptance of the administrative fee from a private 

organization constitutes or is tantamount to a "financial interest" under section 351.101. See Request 

Letter at 2. Because of our conclusion that there is no authority for a sheriff to accept the fee 

described, we need not address this question. 

Third, you ask whether the sheriff's acceptance of an administrative fee violates any criminal 

laws. Id Whether particular conduct constitutes a violation of a criminal statute involves questions 

of fact that are outside the purview of the opinion process. See Tex. Att'y Gen. Op. No. GA-0485 

(2006) at 4 (noting that questions involving issues of fact 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