                                   The Attorney General of Texas
                                                       August   16,   1983

  JIM MATTOX
  Attorney General



  Suprme Can Bullding
                                 Ronorable William A. Meltten                Opinion No.    Jk+57
  P. 0. Box 12545                Criminal District Attorney
  Auslln. TX. 75711.2545         Fort Bend County Courthouse                 Bc:  Whether a county sheriff
  512.I475.2501      -           Richmond, T&r     77469                     or constable may contract with
  Telex 91am74-1357
                                                                             a private    homeowners assocla-
  ~olcopier 51Z47M
                                                                             tioo to furnish it law enforce-
                                                                             ment services
  1507Maln St. Suite 1400
  oaaar. TX. 7520147oli          Dear Ur.    kitsto:
  2W742.5944

                                        You have requested   our oploloo   concerning    the authority  of a
  4524AlbWla Ave.. Suit; 150     county to cootract vith ~private entities       to furnish certified  peace
  El Paso. TX. 799052793         officer   law loforcewot protection    10 return   for monetary paymants to
&1515J33ull’                     the county.    ‘Over the course of the years this arrangement has been
                                 the subject of opiolons    from this office and Texas courts, and it ie
  ‘1220Dallas Ave.. Suite 202    our understanding that such a practice     io Texas is oot uncommoo.
   Nous10n.TX. 77002as56
   7lY55oa55                           There Is uo statute        lxtaot vhlch purports        to authorize   such
                                 contracts,    oor r coostitutional,provisioo        at present upon which such a
                                 statute    could be based.       Article     III,   section  52f, of the Texas
  505 Broadway.Suite 312
  Lubbock.TX. 79401-3479         Constitution,    adopted in l!@O,,allws         couocies having a.populatiou   of
  M&747.5235                     5,OOD or less~to constmct       lod,maintaio private rbads for a reasouable
                                 charge. but oo other caartitutiona~            pr&yisioo. of which we are aware
                                 permits~~cootm~~~ of this tituri.
   4W9 N. Tenth. SuIta8
   McAlhn. TX. 71331.1555
   512ea2.4547
                                      T%e pollcC~-power 6f the ata&‘is      ‘a fkndameotal attribute of.
                                 eovereigoty, lud the Texas Coirstitirtim- ,rcquirer that the powers of
                                 governmeat be confided ooly to bodies ‘of “magistracy.”      Tex. Coost.
   200 Main flua. till* 400      art. II. 41. See City of Dallas v.‘Smith,    107 S.W.Zd 872 (Tu.  1937).
   SW, An,miO. TX. 782052797     10 our opioionzounty    officers     may oot subject their lav enforcement
   5121225.4191
                                 respoosibilitlea  and functions     to private  control or dircctiun.  See
                                 72 Am. Jur. 2d States,  Territories    and Dependencies, Il. at 406 (19m
   An Equal Oppwlunilyl          (duties of the state).
   Allirmaflre Action Employer
                                       A sheriff.: constable.   or deputy Is a peace officer   vhose duty it
                                 is “to preserve the peace within his jurisdiction.”        Code Grim. Proc.
                                 arts.   2.12, 2.13.     Peace officeis   must be certified   by the state.
                                 V.T.C.S.   art. 4413(29aa).     They are vested with privileged    authority
                                 to make arrests,    article  14.03 of the Code of Criminal Procedure, and
                                 to possess handguns, sections 46.02 and 46.03 of the Penal Code.

                                       You specifically    ask whether   a county sheriff  or constable can
                                 contract,  through the    commissionerr   court, with a private homeowners
Honorable   William   A. Meltzen    - Page 2     (JM-57)




association     to furnish      law enforcement services        to the association
whose geographical       area is not within         the corporate    limits      of any
municipality.      YOU have furnished         us a copy of the contract between
Fort Bend County and the Sugar Creek Homes Association,                        a Texas
corporation     (whose property may be nominally taxed, section 23.18 of
the   Tax Code;       but   see     Attorney    General    CpiOion   S-1220       (1978)
(provision     unconstitutional)).          The contract    was executed        by the
commissioners      court    and the president         of   the association.           The
contract    calls    for   the appointment and assignment of four deputy
constables    who shall “devote substantially           all of their working time
to the area known as Sugar Creek” and whose “salaries                  and expenses”
will  be ~paid by the association           to the county.     The agreement calls
fork tventy-four     hour protection.         The contract   provides for payments
to the county in the aggregate              amount of $120.000 over the twelve
month term of the agreemsot.            It is agreed that the deputies shall be
under the supervision       and control of the constable.          The deputies are
required    to remain oo patrol          in Sugar Creek except in Instances of
“emergencies.”       If the full number of deputies are not assigned.                 the
association     is entitled      to a pro rata refund from the county.              There
are    no    provisions      in     the    agreement    concernlog     liability       or
indexmificatioo      in the event of litigation.

        Although the submitted contract     pertains    ooly to the office    of
 constable,    our answer and discussion  will    also apply to the sheriff’s
 office,    as in your question.    For purposes      of this opinion we will
 assume that any activity    by the specially    assigned peace officer   would
be conduct legitimately      pursued by a law enforcement officer        in the
‘oormal course of his duty to preserve        the peace.    That is. we amnne
 that the officers    are pursuing a proper public purpose In their acts.

      While    the’contract       states   .that     it    shall  oot !‘obligate      the
cbastable”     ve believe       the    agreement       as   a whole    Interjects      an
impermissible     influence    aod has a substaotial          and rul   effect    on the
exercise   of discretion      as to the deolovment
                                              .    -        of deputy oeace officers
by the constable,       or the sheriff,      as the case may be. - The court lo
Weber v. City of Sachse. 591 S.U.Zd 563 (Tex. Civ. App. - Dallas 1979.
no writ).   discussed the sheriff’s        law aaforcemeot discretion          regarding
deployment of his deputies.          The case concerned a suit by Incorporated
municipalities      seeking a writ of mandamus compelliog              the sheriff      to
patrol vithin their boundaries.           The county had elected to patrol only
the unincorporated       areas of the county.           The court held that this was
a proper exercise       of the county’s discretionary            authority    as to the
level of law enforcement protection             and that the sheriff       could not be
compelled to provide patrols         as requested because

             his   decisions   as    to   the   deployment of   law
             enforcement officers    within the county are left to
             his discretion   and judgment since this matter Is
             not specifically   prescribed    by law.




                                          p.   230
Honorable    William   A. Heitaen   - Page 3     (JM-57)




Id. at 567.     While we certainly   agree with the court’* holding that a
district   court cannot Interfere   with the exercise of discretion    by the
county    regarding    law enforcement,    we do not believe      that   such
discretion     sanctions   the   execution   of  a   legally  impermissible
contract.

      The court in Murray v. Rarrfs.      112 S.W.Zd 1091 (Tex. Civ. App. -
Amarillo  1938. writ dism’d).     held that the county sheriff    could not
contract away his discretion     to appoint and discharge his d.eputlea at
his pleasure   es authorized   by article   6869. V.T.C.S.   The court held
that an employment contract with a deputy guaranteeing       employmsnt for
the duration   of the sheriff’s’    term was void and unenforceable.     The
court stated that the effect      of the -contract.  signed by the sheriff,
would be

             to abrogate   and abandon the important   option
             placed in him by law to terminate the employment
             at his will or pleasure.

-Id.   at 1093.

      It la our opinion that a county sheriff          or constable    may not,
through a contract executed by the commissioners court; contract avay
or   restrict   his   discretionary    duty   regarding     the   appointment,
assignment. and deployment of deputy peace officers.          We believe   that
the agreement     to provide     law eoforcemeot    protection.    -an obvious
governmental ~function and police       power of thei county.       Is void as
contracting   away such authority.     The court in Clear Leke -City Water
Authority v. Clear Lake Utilltiea     Company. 549 S.W.2d 385 (Tex. 1977).
held that a water district     could not
                                                     ,
            by contract   or otherwise,        bind itself     in such     l
            vay as to restrict     its       free  exercise     of [its]
            ~governmental powers.

Id. at 391.     See also Texas Power 6 Light Company v. City of Garland,
431 S.W.2d 511 (Tex. 1968) (contracting              avay police    power); Pittmao v.
                    , 598 S.W.Zd 941 (Tex. Clv. App. - Amarillo 1980, writ
                    idelity     Land 6 Trust Company of Texas v. City of West
University    Place,    496 S.U.Zd        116 (Tex.      Civ.   App. - Houston (14th
Dist. 1 1973. writ        ref’d    0.r.e.)      (sever    eesements    - surrender    of
govekmentai      power by contract);
Control and Improvement District.
Beaumont 1955. writ ref-‘d n.r.e.)           (contract    abdicating    police pover of
water district     void and illegal);         City of Belleview      v. Belleview Fire
Fighters.   Inc.,   367 So.2d 1086 (Fla. Dlst. Ct. App. [lst Disc.)                1979)
 (contract   taking     discretion        in   fire    fighters     policy    away from
municipal corporation       resclnded).

      Several courts   and   attorneys           general  have   discussed        "law
enforcement by contract”   schemes but           have not discussed   their      basic



                                      p.   239
Honorable Willlam      A. Meltsen   - Page 4   (Jh-57)




legality.     The case of Hudson v. St.           Louis  Southwestern   Railway
Company of Texas,       293 S.W. 811 (Tex.        Comm’n App.   1927. holding
aooroved)
 ..       - concerned a wrongful death action which arose as a result of
a state ranger being assigned to protect the property of the railway
company. The railway        company had applied      to the governor   for the
special   appointment of state rangers during a labor strike.            It was
agreed that the company would pay the salaries            and expenses of the
peace officers.       There was 00, discussion       in the case as to the
legality    of such arrangement;       the court simply held that the ranger
was acting     vlthio   an employment capacity        of the company thereby
imposing liability     oo the company for wrongful death.      The holding and
the facts In Lancaster v. Carter. 255 S.U. 392 (Tex. 1923) are similar
to Hudson. Deputy sheriffs          had been appointed and assigned to guard
the property     of a railroad       company.   The sheriff  admitted that he
exercised    no supervision      or had any knowledge of the acts of the
deputy.     The deputy was compensated exclusively        and directly   by the
railroad   company. The court held the deputy to be an employee of the
company and the latter       liable    for the wrongful death by the deputy.
Furthermore, the court stated that

               [t]he    sheriff  had no authority     to appoint     or
               detail   a deputy to guard and watch the property     of
               the    railroad,   except   in  specific    cases     of
               threatened injury.

Id. at 393.     The court in Texas and N.O.R. Company v. Parsons,       113
G.     914 (Tex.   1908).   similarly    held that a deputy peace officer
assigned to protect railroad      premises was acting as-an employee of the
company. making the latter liable        for the wrongful death at issue in
the case,    and that the sheriff       had no, authority  to make such an
appointment.              9

      10 Attorney General Opioioo O-4338 (1942). this office  concluded
that Humble Oil and Refining   Compaoy could not hire a deputy sheriff
to guard its oil   storage tanks and other property.   The company had
agreed to pay the county the monthly salary of the deputy assigoed.
In the opinion it was atated:

               Under the facts as submitted In your letter,         this
               deputy is to be assigned to guard the oil storage
               plaots    and oil   wells   of a private   concern.     He
               will   of necessity    have to devote his entire     time
               to this     task,   and will     not be available      for
               assignment e.lsewhere.      He will  not be subject     to
               the    orders    of   the   sherlf f nor will     he be
               responsible    to him.    Under these circumstances.    it
               is our opinion       that the sheriff     would have no
               authority    or legal right to issue a commission to
               a person to perform such services.

-Id.   at 4.



                                        p.   240
          Honorable Ullliam       A. Meitzen     -   Page 5   (~~-57)




r.
                 In Attorney    General Opinion O-207 (1939). this office        determined
          that   the sheriff     could not issue comissions       to.  that Is. deputize.
          persons acting AA “watchmen. poundmasters, And others whose business
          requires     them to carry large     sums of money on their persons.”         ~The
          sheriff   may not Appoint A special         deputy to patrol in annual county
          cqlebration     without complying with the certlficAtion        requirements for
          peace officers,      Attorney General Opinion H-1002 (1977). nor may the
          sheriff    appoint     “special   deputies”    who Are AssignAd no official
          duties.    See
                     -     Attorney   General Opinion    V-699 (1948).

                 The appecrls court         in Bounty Bellroom v. Bain, 211 S.W.Zd 248
          (Tex.    civ.    App. - Amarillo           1948. vrlt     ref’d    n.r.e.1.     gAve tacit
          approval of       Lou enforcement by contract            Arrangements.        ThL~ city bf
          Dallss,    A home rule city,           had passed AII ordinance permitting              dAnce
          hall operators to request the assignment of e “specie1 police officer”
          to the business          premises      for   which the owner paid then city en
          established      fee.     The power ‘of        supervision      and Assignmsat of the
          special    officers.    remained. under the ordinance. with the city’s                  chief
          of police.      Also, under the “Dance Hall Code” the wages of the special
          officers      CAIN strictly         from the     fees    received      from the various
          business     establishments.         A peace off1ce.r engaged ~~8s involved              in A
          scuffle   while evicting       A patron at the dance hall.           inflicting     injuries
          for vhich the patron sued the owners And the officer.                        The issue and
 r-       holding of the case concerned whether the owners were liable                      under the
          master-servant        doctrine,      or whether     the officer        was pursuing        his
          duties As A public official             for which the owners Are sot ii-able.               We
          believe.that      Any language In the opinion approving manner of contract
          Is dicta And contrary to Authorities               her+       relating.specifically          to
          county peace officers;          such authority     to contract WAS not litigated             in
          the case nor essential           to its holding.        Furthermore, WC believe            the
          case is inapplicable         because it pertained          to the nuthorlty of A home
          rule city rather than to A county.

                 The deputy is paid by the county, At IeAst facially.        We believe
          it is not necessary     to discuss  the basic rule of low that A public
          officer    mry not Accept compeneation from third         parties  or privAte
          sources for the performsnce of official       dutias.    Knsling v. Morris,    9
          S.W. 739. 740 (Tex. 1888)1      See Penal Code 536.02 (brlbcry);      Attorney
          General Opinion C-661 (1966)(county        sheriff’s   Authority  to contract
          with municipality)   ; Attorney    General   Opinion O-773 (1939)      (deputy
          sheriff     mey not    become    employed   by     dance   hall   And    Accept
          compensation).    Attorney General Opinion O-1565 (1939) Also concluded
          that A deputy constable    may not be employed And paid by A tavern to
          enforce the IAV.    The opinion stated:

                       A constable   only has the legal     right  to Accept
                       compensation prescribed  for him by law and that he
                       may not legally   accept compensation from private
                       sources for patrolling   And. performing   his duties
     ,-
                       of enforcing the law.




                                                      p.   241
Honorable      William   A. Meltzen - Page 6 (JM-57)




-Id.   At 6.

        BeCAuse the agreement In question                   provides     that it shall         not
“obligete”       the county And that the Assigned officers                   remsin under the
supervision         of the elected          peace officer.         and thereby,        Arguably.
making inAppliCAble                the Authorities         discussed      above     prohibiting
ContrActlng *way such responsibilities.                    we believe     it Is necessary to
discuss public policy And constitutional                   questions.       The appearance of
impropriety.          the     potentinl      for    conflicts      of   interest,        And the
potential       for less than impartial            enforcement of the law. are matters
for     serious      considArAtlon       when LAW enforcement officers                 knov that
their positions           nre supported and funded voluntarily                by persons they
police.       Furthermore; we believe            the bnre~ cost items of reimbursement
to the county -- Automobile expenses And SAlAries -- do not AdeqUAt8ly
cover the full           value received by the nssociation               in the purcha88 of
the county’s nnme. speciA1 authority.                  and the “good will.”          AS it were.
of the county.            Such Aspects of official            imprimatUr are of value          and
ore conveyed gratis             to A defined group of individuals              In violation      of
article      III,      section      52. of the Texas Constitution.                which denies
pOlitiCA        subdivisions        the authority      “to grant public money or thing
of value in ald of,              or to any individual,         sssociatlon      or corporation
whatsoever.”          Although we nre imputing no improper motives                       to those
wishing      to secure          law enforcement        protection      in this       manner. we
believe      that permitting            A group of economically              able    persons     to
purchase additional            protection     is fraught with potential           for abuse And
is An unorthodox manner of conducting the affairs                       of government.         The
proper manner with which to Increase                      the level      of lab enforcement
protection        offered      by the     county is. ~~eithAr._An~~increase            in county
taxes,      A reallocation          by the commissioners           court of the Available
county revenue. or municipal incorporation.                        We believe      that when An
Area within          the unincorporAged           portion     of the county has such A
pressing      need for the law enforcement protection                   contemplsted by the
agreement. there probsbly existA sufficient                      rensons fo,r the territory
to incorporate            and create      their     owe law enforcement agency.                The
parties     pay then clearly           be entitled      to contract     for law enforcement
protection        under the Interlocal           Cooperation      Act. Article       4413 (32~).
or article         999b. V.T.C.S..         which pertains        to interlocal        nssistaace
among lnv enforcement officers.                  Even without incorporatlon.              there is
Adequate provision             in stnte lnw permitting           private     concerns to hire
security       services.         The Private       Investigators      and Private         Security
Agencies        Act,      article      4413(29bb),       V.T.C.S.,      permits       A person,
Association.          or corporation          to employ the services              of    A   “guard
company” to provide A “private                  WatChmn, guard or street              patrol”     to
protect      private       property And protect          persons from bodily          harm.     Id.
§2(4).      These considerations.           in   addition    to restriction       of discret%
discussed above. in our ooinion render the asreement In auestlon here
void As AgAinSt~public              policy And unconstitutional.              See ‘Hazelwood v.
handrell      Industries         Company, Ltd.,      596 S.W.Zd 204 (Tz             Civ. App. -        -...
Houston [lst Dist.]             1980. writ ref’d      n.r.e.1;     Locomotive Engineers and
Conductors Mutual Protective               Association      v. Bush, 576 S.W.2d 887 (Tex.




                                            p.   242
HonorAble Willlam      A. Meitzen   - Page 7 (~~-57)




Cl”. App. -    Tyler    1979. no writ);        Restatement    (Second)      of   Contracts
5179 (1979).

      The funding for county lnv enforcement protection     comes from the
general   fund of the county which is generated       by tAX revenues and
other legitimate    county fees And charges.    The commissioners court is
vested with discretion    with rAgArd to the allocation     of this public
money for law enforcement and has the duty to AdeqUAtelY fund the
sheriff’s   office.   See V.T.C.S.   Arts. 3899.w3g99b. 3902, 3Y12k; Vondy
v.   Commlssiorhers Court     of   Dvalde.  620 S.W.Zd   104 (Tex.    1981)
(commissioners court required to sett reasonnble salnry for constable);
cf. Attorney CenerAl Opinion H-1190 (1978) (duty to fund county jnil).

       In our opinion, neither A county, A sheriff,           nor A constnble is
empowered to enter into A contrnct with privnte entities             or homeowners
to furnish      them specinl    law enforcement protection         unAvAilAble     to
others.     All such agreements A’re void And unenforceable.          Cf. Attorney
General Opinion MU-236 (1980) (deputy sheriff             acting asfndependent
contractor     during off-duty   hours).    Although protection      not AVAilAble
to others might be furnished        to Areas or persons in the exercise of A
reasonable ~discretion based on general public need, Weber v. City ~of
Sachse. suprs.       county officisls     Are not At liberty         to base such
decisions    on the wishes of private groups to have public equipment And
personnel      specially    devoted    to   their   interests.      or   upon the
willingness     of such groups to pay therefor.       -See  Ex  parte  Cower.     357
S.W.2d 740 (Tex. 1962).

                          _ .       SUMMARY--                    . _^__- ----

               A county may not contract     with A homeowners
            associntion  to provide la+ enforcement protection ’
            by county peace officers.          I        I




                                                  JIM        MATTOX
                                                  Attorney    General     of Texas

TOM GREEN
First ASsistAnt     Attorney    Genera3

DAVID R. RICHARDS            -
Executive ASSiStAnt      Attorney   General

Prepared by David Brooks
Assistant Attorney General




                                          p.    243
