    OFFICE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

   JOHN CORNYN




                                                 October 13, 1999



The Honorable Judith Zaffbini                            Opinion No. K-0125
Chair, Human Services Committee
Texas State Senate                                       Re: Authority of county to provide law enforce-
P.O. Box 12068, lE.5                                     ment services in a municipality      within its
Austin, Texas 7871 l-2068                                boundaries   (RQ-0073-K)


Dear Senator Zaffnini:

         You ask whether Dimmit County may provide law enforcement services in Carrizo Springs,
a city located within the boundaries of the county, in the absence of an interlocal agreement between
the city and the county. The law enforcement services in question are provided by the sheriff, whose
office is funded by the commissioners court. See TEX. CONST. art. V, 5 23 (establishing elective
office of county sheriff); TEX. LOC. GOV’T CODE ANN. 5 152.011 (Vernon 1999) (commissioners
court shall set amount of compensation, office and travel expenses and all other allowances for
county officers); Tex. Att’y Gen. Op. No. H-l 123 (1978) at 2 (law enforcement activities of county
are vested in officers such as sheriff and district attorney, not in the commissioners court). We
conclude that the sheriff is authorized to provide law enforcement services in Canizo Springs absent
an interlocal agreement between the county and the city. You also ask whether the fact that the
residents of Carrizo Springs pay county taxes obligates the county to provide these services within
the boundaries of Carrizo Springs, and whether the sheriff is obligated to provide law enforcement
services within the city. We conclude that the sheriff is authorized to decide, in the exercise of
reasonable discretion, how to allocate the law enforcement services of his office to different areas
in the county, and the fact that municipal residents pay county taxes does not dictate a particular
level of county law enforcement protection in municipalities.

        A letter that you have received from the County Judge of Dimmit County (“the county”)
provides the background for your request. See Letter from Honorable Charles D. Johnson, Dimmit
County Judge, to Honorable Judith Zaffhini, Texas Senate (May 5, 1999) (on tile with Opinion
Committee) [hereinafter “Johnson Letter”]. It states that the City of Carrizo Springs does not fund
a municipal police department. See id. at 1. More than half of the approximately 10,500 residents
of Dimmit County live in Carrizo Springs, and about ninety percent of the county’s crimes occur
there. Id. In 1989, Dimmit County and the City of Canizo Springs entered into an interlocal
“Agreement for Provision of Additional Services by Sheriffs Department” whereby the county
agreed to provide law enforcement services to the city for $60,000 a year. Id.; see also TEX.
GOV’T CODE ANN. ch. 791 (Vernon 1994 & Supp. 1999) (Interlocal Cooperation Act); Tex. Att’y
Gen. LO-98-079 (interlocal agreement between municipal utility district and county for provision
The Honorable Judith Zaftirini    - Page 2       (JC-0125)




of security patrols in district by constable’s and sheriffs office). The county terminated the
agreement in 1998 alter the city failed to accede to its requests for additional compensation.      See
Johnson Letter at 2. However, the sheriff continues to direct deputies to patrol the city, make
security checks of downtown businesses, answer calls for assistance, provide dispatcher services,
investigate crimes, tile offense and arrest reports, make arrests within the boundaries ofthe city, and
in general, provide law enforcement services there, in the absence of any written agreement between
the city and county. Id.

        You submit the following questions about the sheriffs provision of law enforcement     services
in Carrizo Springs under the circumstances outlined by the county judge:

                         [May] the County provide law enforcement services within
                the municipal boundaries of the City of Carrizo Springs without an
                Interlocal Agreement?

                        .. .


                        Is the county obligated to provide police        protection   to
                municipal residents because they pay county taxes?




                        Are the sheriff and his deputies obligated to respond within
                the boundaries of a municipality upon the report of a violation or
                impending violation of the Texas Penal Code without an interlocal
                governmental agreement for law enforcement between the municipal-
                ity and the county?

Id. at 1,3.

         It is suggested that the sheriffs provision of law enforcement services within Carrizo Springs
in the absence of compensation            to the county violates article III, section 52 of the Texas
Constitution, which provides that the legislature “shall have no power to authorize any county, city,
town, or other political corporation or subdivision of the State to lend its credit or to grant public
money or thing of value in aid of, or to any individual, association or corporation whatsoever.” TEX.
CONST. art. III, 5 52(a). This provision prevents a county from donating its funds or anything of
value to an independent municipal corporation. See San Antonio Zndep. Sch. Dist. v. Board of
 Trustees, 204 S.W.2d 22, 25 (Tex. Civ. App.-El Paso 1947, writ ref d n.r.e.).

          The sheriffs provision of law enforcement services within the boundaries of an incorporated
 municipality in the county does not violate article III, section 52(a) of the Texas Constitution.    A
 sheriff is an elected county offrcer whose “duties . shall be prescribed by the Legislature.” TEX.
 CONST. art. V, 8 23. Article 2.17 of the Code of Criminal Procedure provides that “[elach sheriff
The Honorable    Judith Zaftirini   - Page 3      (JC-0125)




shall be a conservator of the peace in his county.” TEX.CODEGRIM.PROC.art. 2.17 (Vernon 1977).
This provision authorizes the sheriff to perform law enforcement duties throughout the county,
including those areas of the county that lie within the boundaries of incorporated cities. See Weber
Y. Cify of Sachse, 591 S.W.2d 563, 566-67 (Tex. Civ. App.-Dallas 1979, writ dism’d) (sheriffs
authority to deploy deputies within boundaries ofincorporated cities); Newburn Y.Durham, 3 1 S.W.
195 (Tex. 1895) (where statute gives city marshal same authority as sheriff of a county under laws
of state, marshal may make arrest anywhere in county).            Thus, the sheriffs jurisdiction  as
conservator of the peace in Dimmit County includes the area within the boundaries of Carrizo
Springs, and no contractual arrangement between the city and county or compensation to the county
is necessary for him to exercise law enforcement powers in the city. In performing law enforcement
services in Carrizo Springs, the sheriff does not donate county funds or any other thing of value to
the city in violation of article III, section 52 of the Texas Constitution but merely acts within the
authority of his office.

         You next inquire whether, in the absence of an interlocal contract, the county is obligated to
provide police protection in Carrizo Springs, because municipal residents pay county taxes, and
whether the sheriff and his deputies are obligated to respond within the boundaries of a municipality
to the report of a violation or impending violation of the Texas Penal Code. The opinion in City of
Suchse, which addresses the county sheriffs provision of law enforcement services within
incorporated municipalities in the county, provides answers to your questions. The Dallas County
Commissioners     Court terminated funding for twenty sheriffs deputies, and the sheriff ceased to
maintain regular patrols within the limits of incorporated municipalities within Dallas County,
although the sheriffs department still responded to calls by city residents. See City of Sachse, 591
S.W.2d at 565,568. Two incorporated municipalities in the county brought suit against the sheriff,
county judge, and county commissioners of Dallas County, seeking an injunction requiring the
commissioners court to fund and the sheriff to provide at least five deputies to patrol within the
boundaries of each city. Id. at 565. The court determined as follows:

                Although the sheriff has the duty to conserve the peace within the
                county, his decisions as to the deployment of law enforcement
                offtcers within the county are left to his discretion and judgment since
                this matter is not specifically prescribed by law. A court may properly
                intervene only where a public official fails to perform a mandatory
                duty or oversteps the bounds of his discretion. The law imposes no
                mandatory duty on the sheriff to supply a certain level of law
                enforcement to the plaintiff municipalities.

Id. at 567 (citation omitted).

        Because no statute obligates the sheriff and his deputies to provide a specific level of law
enforcement within the boundaries of an incorporated municipality, it is for the sheriff, in the
exercise of reasonable discretion. to determine how to allocate the law enforcement services of his
The Honorable Judith Zaffirini   - Page 4        (JC-0125)




office to different parts of the county, including parts of the county within the boundaries    of an
incorporated city.

         The plaintiff cities in City of Suchse also argued that they were entitled to the same county
police protection as provided in the unincorporated area.s of Dallas County because their citizens
paid the same county taxes as residents of the unincorporated areas. See id. The court determined
that “[elqual protection does not entitle every citizen to receive equal benefits each time government
money is spent.” Id. Absent invidious discrimination based on a suspect classification such as race
or sex, equal protection requires only that the county government have a rational basis for providing
different levels of law enforcement services to different areas of the county. See id. Upon review
ofthe relevant facts, the court determined that the commissioners court and the sheriffhad a rational
basis for an unequal deployment of county sheriffs patrols between the areas within the limits of
the plaintiff municipalities and the unincorporated areas of the county.

         Accordingly, we conclude that the Dimmit County sheriff is authorized by section 2.17 of
the Code of Criminal Procedure to perform law enforcement services throughout the county, and no
interlocal agreement between the county and the government of an incorporated city within the
county is necessary to enable the sheriff to provide these services within the city’s boundaries. The
fact that municipal residents pay county taxes does not require the county sheriff to provide an equal
level of law enforcement protection within municipal boundaries as it does in the unincorporated
areas. The county government must have a rational basis for providing different levels of law
enforcement services to different areas of the county. The sheriff is authorized to respond to calls
for law enforcement help within the boundaries ofa municipality despite the absence of an interlocal
agreement between the city and the county. It is for the sheriff, in the exercise of reasonable
discretion, to determine how to allocate the law enforcement services of his offtce to different parts
of the county.
The Honorable Judith Zaffirini     - Page 5       (X-0125)




                                        SUMMARY


                        The sheriff is conservator of the peace in the county and has
               authority to perform law enforcement services throughout the county,
               including the area within the boundaries of an incorporated city,
               absent an interlocal contract with the city. It is for the sheriff, in the
               exercise of reasonable discretion, to determine how the law
               enforcement efforts ofhis office should be allocated to different areas
               of the county. The fact that municipal residents pay county taxes
               does not require the county sheriff to provide an equal level of law
               enforcement protection within municipal boundaries as he does in the
               unincorporated areas, as long as there is a rational basis for providing
               different levels of law enforcement services to different areas of the
               county.




                                                Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee
