                                          August 7,200O



The Honorable Russell W. Malm                     Opinion No. K-0263
Midland County Attorney
200 West Wall Street, Suite 104                   Re:      Authority of a sheriff to organize and
Midland, Texas 79701                              participate in S.T.A.R. [Sheriffs of Texas Agreed
                                                  Response], a law enforcement tactical response
                                                  team (RQ-0199-JC)


Dear Mr. Malm:

         You ask a number of questions regarding the authority of the Sheriff of Midland County to
organize and participate in the Sheriffs ofTexas Agreed Response progrmn(“STAR”).      We conclude
that, as you have described the program, the Sheriff is without authority to do so. We begin with
a summary of the background of this request.

               You advise:

                        The Midland County Sheriff, along with a number of other
               Texas Sheriffs, has organized a group known as “Sheriffs of Texas
               Agreed Response” (hereafter “STAR”). STAR is a law enforcement
               tactical response team. The Midland County Sheriff, along with the
               other participating law enforcement personnel, have been conducting
               training activities for STAR. One of the stated purposes of STAR is
               “to form a mutual aid law enforcement tactical response team to
               cooperate and provide a ready response to situations necessary to
               protect health, life and property in the county or municipalities
               because of disaster, riot, or threat of concealed explosives, or
               unlawful assembly characterized by force and violence or the threat
               of force and violence by three or more persons acting together or
               without lawful authority where situations are beyond the capabilities
               of normally equipped and trained law enforcement             agency
               personnel.”

                        Originally, Sheriffs desiring to participate in the STAR
               program were required to sign the agreement attached as Exhibit “A.”
               This agreement was drafted by a Texas attorney. That agreement
               states that it is done pursuant to the powers granted under Article Xl,
               Section 5 of the Texas Constitution, Article 791 of the Texas
               Government Code, and Chapter 362 of the Texas Local Government
The Honorable Russell W. Malm - Page 2              (X-0263)




                Code. The Midland County Judge questions the legal authority of a
                Sheriff to contract with other counties and conduct such operations.
                The Midland County Judge also believes that the concept of the
                STAR program is in conflict with the Emergency Management
                System set up by Chapter 418 of the Government Code. The
                Midland County Sheriff believes that he and other Texas Sheriffs
                have the legal authority to participate in such a program.

                         The Midland County Sheriff has advised me that the
                agreement attached as Exhibit “A” is no longer being used by parties
                participating in STAR. Sheriffs or other law enforcement agencies
                wishing to participate in the STAR program are now being required
                to sign the agreement attached as Exhibit “B.”

Letter from Honorable Russell W. Malm, Midland County Attorney, to Honorable John Comyn,
Texas Attorney General, at 1 (Mar. 3,200O) (on file with Opinion Committee) [hereinafter “Request
Letter”].

         Exhibit A is denominated “S.T.A.R. Operational Agreement.” It is a six-page document by
which participating peace officers “agree to form and by this agreement do form a mutual aid law
enforcement tactical response team.” Request Letter (“Exhibit A”). Its purpose is “to provide a
ready response to situations beyond the capabilities of normally equipped and trained law
enforcement agency personnel.” Id. A STAR participant agrees to “assign its law enforcement
officers to provide tactical support duties inside and outside of the member’s territorial limits
when requested by the chief law enforcement officer, or his designee.” Id. While a peace officer
is “in the service of a requesting member,” he or she is “a peace officer of the requesting member
    with all the powers of aregular peace officer, as fully as though he/she were within the territorial
limits of the governmental entity where he/she is regularly employed.” Id.

         You indicate that the Exhibit A “operational agreement” is no longer being used by parties
participating in STAR, Sheriffs or other law enforcement personnel wishing to participate in the
program are now being required to sign the agreement attached as “Exhibit B.” Request Letter at
1. Exhibit B, denominated “STAR Cooperative Working Agreement,” reads, in its entirety, as
follows:

                        This is to certify that the objectives    of S.T.A.R. have been
                reviewed and that it is mutually agreed to        cooperate to whatever
                extent is available in providing a ready          response to situations
                necessary to protect health, life, and property   to any agreeing Sheriff
                of Texas requesting same.
The Honorable Russell W. Malm - Page 3             (JC-0263)




                        Additionally, the Sheriff of                          county,
                Texas is cognizant of the procedures governing       the operation of
                S.T.A.R. and agrees to such procedures.

                SIGNED:


See Request Letter (“Exhibit B”). You first ask whether a sheriff may contract with other sheriffs
or with municipalities without the approval of the commissioners court of his county. We will
address this matter first in terms of the Exhibit A agreement and then with regard to the Exhibit B
agreement.

         There is no question that the written “operational agreement” [Exhibit A] is a contract. A
contract is simply a deliberate or voluntary agreement between competent parties, made on
sufficient legal consideration, to do or not do a particular act or thing. Phelps & Johnson Y.
Zuschlag, 34 Tex. 371 (Tex. 1870); Fromen v. Goose Creeklndep. Sch. Dist., 148 S.W.2d 460 (Tex.
Civ. App.-Galveston     1941, writ dism’d). The “consideration” required for a valid contract is
defined as either a benefit to a promisor or a loss or detriment to a promisee. Northern Natural Gas
Co. v. Conoco, Inc., 986 S.W.2d 603,607 (Tex. 1998). In the circumstances you have described,
both parties to the “operational agreement” promise to provide, and receive, law enforcement
services, as requested.

         The “cooperative working agreement” [Exhibit B] is slightly more problematic. It might be
argued that the first sentence, in which the parties agree “to cooperate to whatever extent is
available,” is not sufficient, without more, to create a contract. “An alleged agreement which is too
vague, indefinite and uncertain is not an enforceable contract.” WiLey v. Bertelsen, 770 S.W.2d 878
(Tex. App.-Texarkana       1989, no writ). On the other hand, when an agreement itself provides a
standard to be applied in determining an element of a contract, the contract is sufficiently definite
to be enforceable.       Cap Rock Elec. Coop. v. Texas Utils. Co., 874 S.W.2d 92, 100 (Tex.
App.-El Paso 1994, no writ). In our opinion, the uncertainty of “to whatever extent is available” can
be determined to be certain in any particular instance. In any event, the second sentence of the
“cooperative working agreement” in all likelihood creates a contract. We have not been informed
of the “procedures governing the operation of STAR,” but we assume for purposes of this opinion
that they encompass at least some ofthe provisions ofthe previous “operational agreement.” To the
extent that the Sheriff, as a party to the agreement, promises to provide to, and receive from, any
other party the law enforcement services described in the “operational agreement,” the “cooperative
working agreement” must be deemed a “contract.” On the other hand, if the “cooperative working
agreement” does not constitute a contract, it is simply a nullity: no party has agreed to do anything.

         With these principles in mind, we answer your first, second, and fourth questions in the
negative. Unless a statute expressly grants the sheriff or other county official the authority to
contract for the county, the general power to make contracts binding upon a county belongs to the
commissioners court. Anderson v. Wood, 152 S.W.2d 1084,1085 (Tex. 1941); Tex. Att’y Gen. Op.
Nos. JC-0214 (2000) at 7; DM-111 (1992); DM-67 (1991). A number of statutes grant to a sheriff
The Honorable Russell W. Malm - Page 4             (X-0263)




the authority to enter into agreements in limited circumstances, See, e.g., TEX. FAM. CODEANN. ?j
261.3019 (Vernon Supp. 2000) (authorizing contracts between a sheriff and the Department of
Protective andRegulatory Services); TEX. GOV’TCODEANN. 5 511.012 (Vernon 1998) (authorizing
agreements between sheriffs regarding the transferring and receiving ofprisoners); TEX.Lot. GOV’T
CODEANN. 5 35 1.0415 (Vernon 1999) (authorizing sheriffto contract with a person to operate ajail
commissary).     We find no provision in Texas law authorizing a sheriff to enter into the kind of
contract you have described. On the contrary, chapter 362 of the Local Government Code, which
permits a local governmental body to “provide for           its regularly employed law enforcement
officers to assist another county, municipality, or joint airport,” requires that such assistance be
authorized “by resolution or order of’ the local governmental entity’s “governing body.” TEX. Lot.
GOV’TCODE ANN. 5 362.002 (Vernon 1999). We conclude therefore that a sheriffmay not contract
with other sheriffs or municipalities    to provide general law enforcement services, including
investigatory services, without the approval of the commissioners court of his county.

         But even if, as the Sheriff seems to contend, the effect of the “cooperative working
agreement” is altogether nugatory, it does not follow that the Sheriffmay, without benefit ofcontract
or agreement, furnish the kind oflaw enforcement services contemplated by eitherofthe agreements.
Thus, your next question is whether a sheriff, “without the consent of the Commissioners Court of
his County [may] temporarily provide law enforcement assistance, in the form of manpower and
resources, to another Texas Sheriff at the request of the other Texas Sheriff and under the direction
and authority of the requesting Sheriff for the protection of life and property in the requesting
Sheriffs county, during times of natural or man-made disasters.” We have already noted chapter
362 ofthe Local Government Code. The provisions in that chapter authorize one local governmental
body to provide the assistance of its law enforcement officers to another such body. Assistance is
limited to situations of“civi1 emergency,” when “additional law enforcement officers [are] necessary
to protect health, life, and property     because of disaster, riot, threat of concealed explosives, or
unlawful assembly characterized by force and violence or the threat of force and violence by three
or more persons acting together or without lawful authority.” Id. Furthermore, the Sheriff is not
empowered to provide this assistance on his own. Rather, the “governing body,” in this case the
commissioners court, must authorize the deployment of these additional personnel.

          The Sheriff in the present instance relies in part on amendments to article 14.03(d) of the
Code of Criminal Procedure that have expanded a peace officer’s authority to make arrests outside
his jurisdiction. The Sheriffcontends that those amendments now authorize him to conduct general
law enforcement activities, including investigations, outside the county for which he was elected.
In Attorney General Opinion DM-77, this oftice considered whether the Sheriff of Midland County
was permitted to engage in law enforcement activities outside of his county. Tex. Att’y Gen. Op.
No. DM-77 (1992). The sheriff who was the subject of that inquiry had relied in part on article
 14.03(d) of the Code of Criminal Procedure, which at that time authorized a peace officer outside
his jurisdiction to arrest without warrant a person “who commits an offense within the officer’s
presence or view, if the offense is a felony or a violation of Title 9, Chapter 42, Penal Code,” which
relates to disorderly conduct and similar offenses. The question before the attorney general in DM-
77 was whether subsection (d) of article 14.03 “extended the authority of a sheriff to initiate
The Honorable    Russell W. Malm - Page 5            (X-0263)




 investigations and make arrests outside his county.” Id. at 3. The opinion found that “[alrticle
 14.03(d) in fact makes clear that a peace officer’s authority is, in general limited to his geographical
jurisdiction.” Id. (emphasis added). The opinion noted that an officer making an arrest under that
provision was required by the statute “as soon as practicable after making the arrest [to] notify a law
enforcement agency having jurisdiction where the arrest was made.” Id. The local agency was then
directed to “take custody of the person committing the offense and take the person before a
magistrate.” Id. In the view ofAttorney General Opinion DM-77, “the thrust of article 14.03(d) is
to define rather narrowly the limits of a peace officer’s authority outside his own jurisdiction.” Id.
at 3. That authority did not extend to the investigation of criminal activities outside his county.

         Since the issuance of Attorney General Opinion DM-77, the legislature has added to the
offenses in article 14.03(d) for which a peace officer may make an arrest outside his jurisdiction.
He may now arrest for “breach ofthe peace,” and for “an offense under Section 49.02, Penal Code,”
which relates to public intoxication. The statute’s previous restrictions, relating to bringing in the
law enforcement agency ofthe foreignjurisdiction,   remain intact. In 1995, the legislature also added
subsection (g) to article 14.03, which provides:

                          A peace officer listed in Subdivision (l), (2), (3), (4), (5),
                 Article 2.12, who is licensed under Chapter 415, Government Code,
                 and is outside of the officer’s jurisdiction    may arrest without a
                 warrant a person who commits any offense within the officer’s
                presence or view, except that an officer who is outside the officer’s
                jurisdiction may arrest a person for a violation of Subtitle C, Title 7,
                 Transportation Code [relating to moving traffic violations], only ifthe
                 officer is listed in Subdivision (4), Article 2.12. A peace officer
                making an arrest under this subsection shall as soon as practicable
                 after making the arrest notify a law enforcement agency having
                jurisdiction where the arrest was made. The law enforcement agency
                 shall then take custody of the person committing the offense and take
                 the person before a magistrate in compliance with Article 14.06.

TEX. CODEGRIM.PROC.ANN. art. 14.03(g) (Vernon Supp. 2000).

         Thus, as it has been amended since 1992, article 14.03 now permits any peace officer to make
an arrest without a warrant for any offense committed within his view, except for moving traffic
violations, throughout the State of Texas. While a significant expansion of a peace officer’s
authority to make arrests, these amendments do not, in our opinion, grant to a peace officer general
investigative powers outside his geographical jurisdiction. The bill analysis accompanying House
Bill 2614, which enacted subsection(g) of article 14.03, makes clear that the legislature intended
only to expand an officer’s authority to make arrests outside his jurisdiction:

                Every officer has the jurisdiction     to arrest a person anywhere,
                anytime, for a felony in progress.     However, an officer outside of
The Honorable Russell W. Malm - Page 6              (JC-0263)




                his/her jurisdiction    cannot currently    arrest a person for a
                misdemeanor in progress. In practice, this limitation has hamstrung
                police officers in their attempts to thwart criminal activities outside
                of their jurisdiction.

                House Bill 2614 would expand the police power of TCLEOSE
                certified peace officers to allow any officer to arrest a person for a
                misdemeanor offense (except traffic violations) anywhere in Texas.

HOUSE COMM. ON PUBLICSAFETY,BILL ANALYSIS,Tex. H.B. 2614, 74th Leg., R.S. (1995).
Moreover, the precise statutory language is couched in even narrower terms: an officer may arrest
without a warrant only where an offense is committed “within the officer’s presence or view.” Thus,
we do not believe that the language added to subsection (d) of article 14.03, or the addition of
subsection (g), changes the result of Attorney General Opinion DM-77 with regard to a peace
officer’s authority to investigate criminal activity outside his jurisdiction,

         We are supported in this conclusion by the law enforcement authority conferred upon a peace
officer ifthe governing body ofhis jurisdiction opts to invoke chapter 362 ofthe Local Government
Code, discussed above. The mere presence of chapter 362 negates the argument that article 14.03
of the Code of Criminal Procedure expands or confers without requiring the approval of the
appropriate governmental body general investigative and law enforcement authority upon any and
all peace offtcers of the State of Texas coterminous with the boundaries of the state. Were we to
construe the law as suggested by the Midland County Sheriff, chapter 362 would be redundant and
meaningless.    We conclude, therefore, that a sheriffmay not temporarily provide law enforcement
assistance, in the form of manpower and resources, to another Texas sheriff at the request of the
other sheriff and under the direction and authority of the requesting sheriff for the protection of life
and property in the requesting sheriffs county during times of man-made or natural disaster without
the approval of his or her county commissioners court.

         You next ask whether a sheriff has “authority to direct his deputies to train with law
enforcement personnel from other law enforcement agencies at locations outside of the Sheriffs
county.” The sheriff is an independent constitutional officer, whose duties are prescribed by the
legislature. See TEX. CONST.art. V, 5 18; Tex. Att’y Gen. Op. No. JC-0214 (2000). “Texas sheriffs
have ‘virtually unbridled authority in choosing their personnel, restricted only by certain basic
constitutional considerations.   On the other hand, the commissioners court or members of the court
are expressly forbidden to attempt to influence the appointment of any person to an employee
position authorized by the court. The commissioners court may limit the number of deputies
authorized, but it has no power over naming the individuals to be appointed.’ Commissioners Court
of Shelby County v. Ross, 809 S.W.2d 754,756 (Tex. App.-Tyler 1991, no writ).” Tex. Att’y Gen.
Op. No. JC-0214 (2000) at 1. Attorney General Opinion JC-0214 also noted that “the principal
power of the commissioners court with regard to other county officers like the sheriff is the power
of the purse strings.” Id. at 2.
The Honorable Russell W. Malm - Page 7              (x-0263)




         In Attorney General Opinion JC-0239, we considered the authority of an elected county
official to dismiss his or her employees for all or part of a day. We observed that “an elected county
official generally has a ‘sphere ofauthority’ within which neither the county commissioners, nor any
other county official, may interfere.” Tex. Att’y Gen. Op. No. JC-0239 (2000) at 2-3. A county
official has “implied authority to set the working conditions for his or her own employees.”
Although “the commissioners        court retains control over the budgetary aspects of the county’s
employment relationships         the county officer retains control over the accomplishment of his or
her constitutional and statutory duties through, among other things, the administration of his or her
office.” Id. at 3. While a commissioners court, through the budgetary process, has “a considerable
ability to shape the way in which an elected county official uses the resources of his office         it
cannot make those decisions for him. It may, in effect, tell that official what resources it will place
at his disposal. But it may not micro-manage his decisions as to the use of those resources.” Id.

         Applying these principles to the matter oftraining, we believe it clearly follows that a sheriff
may determine what training is appropriate for his deputies, and where, and under what
circumstances, that training may take place. The commissioners court may, of course, within its
reasonable discretion, determine the sheriffs training budget. But it may not place other restrictions
on his authority to provide for his deputies’ training, because such details constitute “the
administration of his or her office,” which is the province of the particular elected official. The
commissioners court thus may tell the sheriffwhat resources it will place at his disposal with regard
to training his deputies, But it may not micro-manage his decisions as to the use ofthose resources.

         Finally, you ask whether the STAR program constitutes a violation or conflict with the
Emergency Management System established under chapter 418 of the Government Code. Chapter
418, known as the “Texas Disaster Act of 1975,” sets up a comprehensive system to, inter alia,
“prepare for prompt and efficient rescue, care, and treatment of persons victimized or threatened by
disaster,” whether “natural or man-made catastrophes, riots, or hostile military or paramilitary
action,” and to “authorize and provide for cooperation in disaster mitigation, preparedness, response,
and recovery.” TEX. GOV’T CODE ANN. 5 418.002 (Vernon 1998).

         Since we have already concluded that a sheriffs participation in the STAR program, as
described herein, exceeds his authority, it is unnecessary to determine whether, by the Texas Disaster
Act of 1975, the legislature has intended to occupy the field in the area of disaster response. Thus,
in light ofour determination that a sheriffmay not, without the approval ofhis commissioners court,
provide general law enforcement services, including investigatory services, to other jurisdictions,
we do not address your last question.
The Honorable Russell W. Malm - Page 8          (JC-0263)




                                      SUMMARY


                       A sheriff may not contract with other sheriffs or
              municipalities to provide general law enforcement services, including
              investigatory services, without the approval of the commissioners
              court of his county. Neither may a sheriff do so in the absence of a
              contract. A sheriff may, subject to budgetary constraints, determine
              what training is appropriate for his deputies, and where, and under
              what circumstances, such training shall take place.




                                            Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

 SUSAN D. GUSKY
 Chair, Opinion Committee

 Rick Gilpin
 Assistant Attorney General - Opinion Committee
