The Honorable Wiley B. McAfee District Attorney 33rd and 424thJudicial Districts 170l East Polk Street Burnet, Texas 78611

The Honorable Rebecca Lange Llano County Attorney 801 Ford Street, Room 111 Llano, Texas 78643

DearMr. McAfee and Ms. Lange: 

## KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 25, 2016

OpinionNo. KP-0111

Re: Whether a commissioners court may impose a vehicle policy that regulates the use, deployment, recording, and tracking of vehicles used by the sheriff(RQ-0100-KP)

Both ofyourrequest letters concernthe authority ofa commissioners court and the county auditor to adopt ·and administer a county vehicle policy handbook for county officers and employees who operate Llano County vehicles. 1 The McAfee Briefstates that in January 2016, the Llano County Commissioners Court adopted a county driver and vehicle policy handbook "intended to apply to all vehicles operated in the course of Llano County business including vehicles that have been allocated to the Sheriffand other elected officials." McAfee Briefat 2. The Lange Request Letter informs us that the commissioners court repealed the January policy handbook and replaced it with a new policy handbook adopted in April 2016. Lange Request Letter at 

### 1. Collectively, your questions concern two basic issues: (1) whether a commissioners courtmayadopta countyvehiclepolicyregulatingthe use ofcountyvehiclesthat applies to county officers andemployees, includingthe sheriffand employees ofthe sheriffsoffice; and (2) whether the county auditor may access and examine county records and adopt regulations concerning county employees and elected officials'. use of county vehicles. McAfee Request Letter at 1; McAfee Briefat 3-5; Lange Request Letter at 2.

With respect to the first issue, the Texas Constitution grants a commissioners court "such powers and jurisdiction over all county business, as is conferred by this Constitution" or the Legislature. TEX. CONST. art. V, § 18(b). A commissioners court is a "county's principal governing body," and its "powers and duties

. . . include aspects of legislative, executive, administrative, andjudiCial functions." 

### Comm 'rs Ct. ofTitus Cty. v. Agan, 940 S.W.2d 77, 79

1 See generally Letter & Brieffrom Honorable Wiley 8. McAfee, Dist. Att'y, 33rd and 424th Jud. Dists. to Tex. Att'y Gen. (Feb. 26, 2016), ("McAfee Request Letter" & "McAfee Brief," respectively); Letterfrom Honorable Rebecca Lange, Llano Cty. Att'y, to Tex. Att'y Gen. (June 14, 2016) ("Lange Request Letter") https://www.texasattorneygeneral.govIopinion/requests-for-opinion-rqs.The Honorable Wiley B. McAfee The Honorable Rebecca Lange Page 2 (KP-0111)

(Tex. 1997). A commissioners court'sresponsibility for countybusiness andto makethe county's budget is a legislative function, and the commissioners court has broad discretion to oversee the county'sfiscal operations andpolicies. 

### Griffin v. Birkman, 266 S.W.3d 189, 194-95 (Tex. App.- Austin 2008, pet. denied). Duties expressly assigned to the commissioners court include the implied authority to exercise powers necessary to accomplishthose duties. 

### City of SanAntonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003).

At the same time, the constitution and statutes grant other independent, elected county officers a sphere ofcounty authority "within whichthe Commissioners Court may not interfere or usurp." 

### Pritchard & 

### Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961). This allocation of the county's authority to the commissioners court and to other county officers creates a "delicate system ofchecks and balances." 

### Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App.-Dallas 1976, writ dism'd). Thelimitationon a commissionerscourt'spowerswithrespectto otherelected county officials derives from "the policy that elected officers

... discharge the public trust and carrythe responsibility for the proper discharge ofthattrust." 

### Abbottv. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, writ denied). However, an elected county official's exclusive sphere of authority consists only ofthe officer's core duties under the Texas Constitution and statutes. 

### See Griffin, 266 S.W.3d at 197.

The constitution and statutes define the sphere of authority of a county sheriff. TEX. CONST. art. V, § 23; 

### see generally Tex. Att'y Gen. Op. No. KP-0003 (2015) (discussing sheriff's constitutional and statutory powers). The sheriff's foremost responsibility is to enforce the law within the county as conservator ofthe peace and keeper ofthe countyjail. 

### See TEX. CODE CRIM. PROC. art. 2.17; TEX. Loe. Gov'T CODE § 351.041. The sheriff's law enforcement authority implicitly includes "reasonable authority necessary to attain the end result." 

### Fort Bend Cty. WreckerAss 'n v. Wright, 39 S.W.3d421, 425 (Tex. App.-Houston [1st Dist.] 2001, no pet.).

The commissioners court and the sheriff both possess authority concerning the county vehicles allocatedto the sheriff, and to some degree, theirrespective spheres ofauthority intersect. The commissioners court's authority with respect to county vehicles derives primarily from its budgetary discretion to determine the vehicles and other equipment to be allocated to county officers such as the sheriff. 

### See Tex. Att'y Gen. Op. Nos. GA-0480 (2006) at 2 (observing that "patrol vehicles allocated to a sheriff by a commissioners court are tools to be used by the sheriff to perform the sheriff's law enforcement duties"); JC-0214 (2000) at 2 ("The principal power of the commissioners court with respect to other county officers like the sheriffis the power ofthe purse strings."). A county vehicle allocated to a county officer or employee remains county property, and therefore the commissioners court's authority with respect to the county vehicle continues afterthevehiclehasbeenallocatedto the sheriff. 

### See Tex. Att'yGen. Op.Nos. GA-0158 (2004) at 4 ("The sheriff's vehicles belong to the county, which acts through its commissionersThe Honorable Wiley B. McAfee The Honorable Rebecca Lange Page 3 (KP-0111)

court."); GA-0308 (2005) at 2-3 (determining that, in particular circumstances, a commissioners court may reduce the number ofvehicles allocated to the sheriff).2

In addition to a commissioners court's general fiscal authority, various statutes provide specific authority to commissioners courts concerning aspects ofcounty vehicle ownership and
use. For example, a commissioners court possesses general authority to provide insurance for county-owned vehicles. TEX. C1v. PRAC. & REM. CODE § 101.027(a), (c) (generally authorizing governmental units to purchase insurance but limiting its authority to require an employee to purchase liability insurance as a conditionofemployment); see generally Tex. Att'y Gen. Op. No. MW-490 (1982) (determining that counties with a population of less than 1.4 million have the authority but not the duty to purchase liability insurance for county motor vehicles). And the commissionerscourthas general authorityto approvemarkings oncountyvehicles, consistentwith statutory regulations. See TEX. TRANSP. CODE§§ 721.004(a), .005(b)(l)(B); Tex. Att'y Gen. Op. No. GA-0158 (2004) at 4 (stating that "the commissioners court exercises ultimate authority over the content, design, or placement ofany particular decal").
However, a commissioners court's oversight authority does not permit it to interfere with
or usurp the sheriffs authority to use the vehicles, personnel, and other resources that have been allocated to the sheriffto perform the duties ofthat office. See Tex. Att'y Gen. Op. No. GA-0480 (2006) at 4. In particular, a commissioners court generally may not interfere with the sheriffs responsibility to deploy law enforcement officers and vehicles. See Weber v. City of Sachse, 591 S.W.2d 563, 567 (Tex. Civ. App.-Dallas 1979, writ dism'd) (determining that the sheriffs "decisions as to the deployment of law enforcement officers within the county are left to his discretion andjudgment since this matter is not specifically prescribed by law"); Tex. Att'y Gen. Op. No. JC-0214 (2000) at 5 (determining that a commissioners court does not possess the authority to "micro-manage [the sheriffs] deployment ofthe fleet ofcars placed at his disposal"). Disciplining deputies also falls within the sheriffs sphere ofauthority, regardless ofwhether a county vehicle is involved. See TEX. Loe. Gov'T CODE § 85.003(c), (f) ("a deputy serves at the pleasure ofthe sheriff' with certain limitations). Thus, a commissioners court may not adopt a county vehicle policythat unreasonably interferes with orusurps the sheriffs authority to use the vehicles, personnel, and otherresources allocatedto the sheriffto performthe duties ofthat office. See Tex. Att'y Gen. Op. No. JC-0239 (2000) at4 (statingthat "[a] commissioners courtthat adopts

2While a commissioners court assigns county vehicles to the sheriff, a sheriffmay also receive a vehicle forfeited to the state under chapter 59 ofthe Code ofCriminal Procedure "to maintain, repair, use, and operate [the vehicle] for official purposes," pursuant to an agreement between the attorney representing the state and the law enforcement agency. TEX. CODE CRIM. PROC. art. 59.06(b). Article 59.06 assigns duties to a commissioners court but does not address formulation ofpolicy concerning such a vehicle. See id. art. 59.06(b- I) (commissioners court may revoke a sheriff's loan ofa forfeited vehicle to another agency or district), (d) (forfeiture proceeds budget to be submittedto the commissioners court). Nevertheless, it is conceivablethat a sheriff's use ofa forfeited vehicle could implicate matters within the commissioners court's authority, particularly ifsuch use impacts the fiscal operations of the county.

### The Honorable Wiley B. McAfee The Honorable Rebecca Lange Page 4 (KP-0111)

a policy to keep employees from following their supervising county official's instructions [might] unlawfully interfere in the official's sphere ofauthority").

Just as the commissioners court may not usurp or unreasonably interfere with the sheriffs
core constitutional and statutory duties, however, the sheriffmay not frustrate the commissioners court in the performance ofits responsibilities. See 

### Tex. Att'y Gen. Op. Nos. JC-0214 (2001) at 6-7 (determining that a sheriff may not interfere with the commissioners court's budgetary authority by notturning in an old vehicle); JM-910 (1988) at 10 (determiningthat county officers
were requiredto comply withrequirements ofa countypersonnelpoliciesmanual "solong as those requirements do not interfere with the proper operation ofthe other constitutional or statutory county

... offices"). Inparticularmatters, a commissioners court may establishbroad operational guidelines provided they do not unreasonably interfere with the performance ofan independent officer's official duties. See 

### Tex. Att'y Gen. Op. Nos. GA-1018 (2013) at 2-3 (commissioners court may establish reasonable office use policy); JM-1098 (1989) at 2 (determining that whether
a commissioners court may promulgate smoking regulations in countyjail depends onparticular facts); H-1190 (1978) at 2-3 (determining that a commissioners court may provide broad operational guidelines applicable to ajail).

Both request letters ask about the commissioners court's authority to adopt the specific policies in the original and subsequent county driver and vehicle policy handbooks. McAffee Request Letter at 1; McAfee Briefat 3-5; Lange Request Letter at 1. 

### We are unable to provide you with an item-by-itemreview ofeitherhandbook. In Attorney General Opinion GA-0994, this office observed that in the event the sheriffs office policy and the commissioners court's county policy conflict, determining which policy prevails "would require an analysis of the specific subject ofthe policies to determine whether, under the facts and applicable law, the sheriffor the commissioners courtpossesses final policymaking authority." Tex. Att'y Gen. Op. No. GA-0994 (2013) at 2 n.2. Such an analysis is not within the scope ofan attorney general opinion because this office does not construe county ordinances or policies or resolve fact questions, which are matters for the commissioners court to determine in the first instance, subject tojudicial review. See 

### Tex. Att'y Gen. Op. No. JM-1098 (1989) at 2-3 (declining to answer whether the commissioners court's broad operational guidelines prevail overthe sheriffs rules concerning the operation ofthejail); see also 

### Tex. Att'y Gen. L0-93-107 at 1 ("It 

### is not within the purview of this office to construe local governmental bodies' personnel manuals[.]"). Ultimately, whether a particularcountyvehiclepolicymay applyto the sheriffs office depends on (1) whetherthepolicy is within the authority ofthe commissioners court and, if so, (2) whether the policy usurps or unreasonablyinterferes withtheperformance ofthe sheriffsconstitutional or statutoryduties. See 

### Tex. Att'y Gen. Op. No. GA-1018 (2013) at 2-3.

Ms. Lange also asks whether a county auditor possesses the authority to access and examine county records and adopt and enforce regulations "to ensure" county vehicles are used for "legitimate public purposes" and "to protect the county against legal claims and excessive or improper use of county equipment." Lange Request Letter at 2. While not elected, a county auditor nevertheless possesses "an impressive array of independent administrative duties and

discretionary powers." Comm 'rs Ct. of Harris Cty. v. Fullerton, 

### 596 S.W.2d 572, 576 (Tex. Civ.The Honorable Wiley B. McAfee The Honorable Rebecca Lange Page 5 (KP-0111)

App.-Houston [lst Dist.] 1980, writ refd n.r.e.). Like other county officials, county auditors have the powersthe law expressly grants andthe impliedpowers necessaryto performthe powers expressly granted. See Tex. Att'y Gen. Op. No. GA-1002 (2013) at 1. The Local Government Code grants the auditor "general oversight ofthe books and records ofa county, district, or state officer authorized orrequiredbylawto receive or collect money orotherproperty that is intended for the use ofthe county orthatbelongsto the county." TEX. Loe.Gov'TCODE§ 112.006(a). The auditorpossesses arightof"continual access"to all records ofofficers concerningcountyfinancial matters. Id. § 115.001. The county auditor's oversight duties authorize the auditorto examine an officer'srecords concerningnot only countymoneybut also countyproperty. See Tex. Att'yGen. Op. No. GA-1002(2013) at2. The auditormust"seeto the strictenforcementofthe lawgoverning county finances." TEX. Loe. Gov'T CODE § 112.006(b). The auditor may impose reasonable reporting requirements on county officers in aid ofthe auditor's fiscal examination and reporting duties. See Tex. Att'y Gen. Op. No. JM-1275 (1990) at 2-3.

A county auditor's authority to impose requirements on other county officers is limited to that necessary to the performance ofthe auditor's duties, however. A county auditor may not
access records ofa county officerthat do notpertainto the auditor's duty to investigate and report
on county financial matters. See Tex. Att'y Gen. Op. No. JM-1186 (1990) at 4-5 (determining that county auditor could not require a constable to provide a monthly record of civil papers received and served whenno fee was involved). Also, a county auditor maynot exercise the right ofaccess to an officer's records in a mannerthat divests the officer ofreasonable control overthe records. Tex. Att'y Gen. Op. No. GA-1002 (2013) at 2-3. Finally, a county auditor's authority to "seeto the strict enforcement ofthe law" is limitedto laws governing county finances. TEX. Loe. Gov'T CODE§ 112.006(b); 

### see also Tex. Att'y Gen. Op. Nos. JM-1186 (1990) at 4 ("[I]t is not generally within the province ofthe auditor to ensure that county officers and employees are complying with the duties oftheir office or employment imposed on them by law where such efforts are not necessary to the accomplishment ofthe auditor's statutory duties."); M-756 (1970) at 5 (county auditornotentitledto examine a sheriffsrecords to determine whetherprisonerswere released before their sentences ended). Thus, whether a county auditor may impose a requirement
on other county officers depends on whether the requirement (1) is reasonably necessary to the performance of an auditor's duties and (2) does not usurp or unreasonably interfere with the performance ofthe officer's constitutional or statutory duties. 3 See Tex. Att'y Gen. Op. No. GA0744 (2009) at 3 (determining that an auditor may not adopt requirements that would usurp or unreasonably interfere with another county officer's statutory authority).

3A commissioners court may assign appropriate responsibilities to a county auditor in addition to the auditor's statutory duties. SeeAgan, 940 S.W.2d at 80-81 (determining that a commissioners court could delegate to a county auditor "a function that the Legislature has not exclusively delegated to

... another appropriate county official"). However, a commissioners court may not grant a county auditor authority that usurps or unreasonably interferes with another independent officer's performance ofconstitutional or statutory duties. See id. at 82; Tex. Att'y Gen. Op. No. JM-1074 (1989) at4 (determiningthat a commissioners court cannotconferon an agent orofficer authority the court itselfcannot exercise).

### The Honorable Wiley B. 

### McAfee The Honorable Rebecca Lange Page 6 (KP-0111)



### SUMMARY



### A commissioners court may enact county vehicle policies applicable to a vehicle used by the sheriffonly to the extent that it does not unreasonably interfere with the sheriffs constitutional or statutory duties. Whether the sheriff or the commissioners court possesses final policymaking authority with respect to a specific vehicle policy will depend on specific facts and applicable law, the determination ofwhichis notwithinthe scope ofan attorney general opm1on.

A countyauditormay access countyrecordspertainingto the
use ofcountyvehicles and impose vehicle use requirements onother county officers only in aid ofthe auditor's fiscal examination and reporting duties and only to the extent the requirements do not unreasonably interfere with the officer's constitutional or statutory duties.

JEFFREY C. MATEER First Assistant Attorney General

BRANTLEY STARR Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER Chair, Opinion Committee

WILLIAM A. 

### HILL Very truly yours,

KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee