                                             The Attorney                 General of Texas
  JIM MAlTOX                                                           June 30,       1986
  Attorney General


  Supreme Cauft Suildlng                  Honorable   Ray Keller                              Opinion   No. JM-509
  P. 0. Box 1254S
  Austln. TX. 78711. 2548
                                          Chairman
  51214752501                             Cmittee     on Law Erforcement                      Re:     Whether a sheriff       or constable
  Telex 9101824.1267                      Texas Rouse of ~Repxeaentatives                     may provide    law enforcement       services
  Telecopier  512/475-g258                P. 0. Box 2910                                      under contract      with a private       home-
                                          Austin,   Texas   78169                             owner8    association,        in   light      of
  714 Jackson. Suite 7W
                                                                                              article   1581b-2,     V.T.C.S.
  Dallas. TX. 752024506
  21U742-59U                              Dear Representative          Keller:

                                                   You state         that the Sixty-ninth            Legislature      enacted   Senate Bill
  4524 Alberta     Ave.. Suite   150
                                           No. 245, which permits                 private     groups    to contract     with a county       for
   El Paso. TX. 799052793
   915axKuS4                                additional        police      :?ersonnel.      Acts 1985, 69th Leg.~, ch. 219 at 1764.
                                            Questions       were raicied during debate as to the constitutionality                     of the
                                            practice.        You notcl that Attorney            General Opinion JM-57 (1983),          issued
,->l    Texas.    Suite 700                 prior     to the enactment            of Senate Bill        No. 245. determined        that such
    ..wsto”. TX.    77002-3111
                                            contracts        were     il:Lagal.      and that      this    opinion    casts   doubt   on the
   713l22555a5
                                            validity       of such contracts             under Senates Bill        No. 245.    Accordingly,
                                         _,~you request -._. ~..an opi+.qn,op         the following      question:
   806 Broadway, Suite 312         ‘-.
   Lubbock. TX. 794015479                                  Whether    a  county     sheriff      or  constable   may
   8081747.5239
                                                       contract    with a private     homeowners     association  to
                                                       furnish   it law enforcement     services,   particularly  in
   4309 N. Tenth. Suite B                              view of the passage     of Senate Bill No. 245. . . .
   McAllen. TX. 79501.15S5
   5t2mB2.4547
                                                   Our answer to your question             will     focus    on the sheriff's        office,
                                           but the discussiol           will    also    apply      to the constable's          office.        A
   200 Main Plaza, Suite 400               sheriff     and a constable       both hold elective           offices   established        by the
   San Antonio,    TX. 75205-2797          Texas Constitution.           Tex.     Const.     art.     V, §§18,     23.   They are both
   51212254191                             peace officers,        with duties        prescribed        by statute.     Tex. Code Grim.
                                           Proc.     art.   2.12;     see Tex.        Const.      art.    V,    123 (sheriff's         duties
                                           prescribed     by legislature);         V.T.C.S.       art.    6885 (constable       to perform
   An Equal Opportunity/
   Attirmative Action Employer             duties     required      by    law).       Both    officers        have   power     to    appoint
                                           deputies.      V.T.C.S,     arts.    3902, 6809, 6879a.

                                                 Senate     Bill     No.   245 has been          codified       as article      1581b-2,
                                           V.T.C.S.,    to "prwect         the public      interest,"       a county      commissioners
                                           court may contract          with a nongovernmental           association     for the county
                                           to provide     law en!iorcement       services     in the geographical           area repre-
                                           sented by the aswciation.              V.T.C.S.     art.    1581b-2.     §I.    The fees    for
                                           law ebforcement        services    are to be established             by the commissioners
                                           court according       to statutory     guidelines      and paid into the general          fund




                                                                                 p.    2337
Honorable      gay Keller        - Pag,    2    (JH-509)




of   the county.   Id.  12.   The commissioners                             court    must secure     the
agreement  of the county peace officer  who is                         to    provide   the services:

                    Sec.   3.   (a)   The    commissioners     court    may
               request    the sheriff     of  the county     or a county
               official     who h,as law enforcement        authority     to
               provide   the semices     in the geographical       area for
               which the official     was elected    or appointed.

                   (b)    If the ,rheriff       or county      official      agrees
               to provide      the services,        the sheriff       or official
               may provide      the services       by using      deputies.        The
               sheriff     or courty     official      retains      authority%
               supervise     the diputies         who provide       the services
               and, in an emerfoncy.         may reassign       the deputies       to
               duties    other thzzi those to be performed              under the
               contract.      (Empt’;isis added).

V.T.C.S.      art.    1581b-2,      03.

        The sheriff’s          decisions        as to deployment            of his deputies           within
the    countv       are    left     to !his discretion               where     this       matter     is   not
specifically         prescribed       by law.          Weber v. City of Sachse,                  591 S.W.Zd
563     (Tex.      Civ.    App.      - Dallas           1979,    no writ).            Article       1581b-2,       ?
V.T.C.S.,         purports~     to allow          a private         association          to control        the
sheriff’s       discretion       to doploy his deputies.                  If the sheriff          agrees     to
provide       his    deputies        to carry         out a contract.            entered        into    under
article      1581b-2,~ V,.T.C.S.,           he relinquishes           authority        to order them to
other     duties,       except     in an emergency,             during      the times the contract
assigns       them to the gecgraphical                     area     represented         by the private
association.            Article       l!;f;lb-2,       V.T.C.S.,        attempts        to authorize           a
delegation         of the sheriff’s            official       discretion       to a private          entity.
It    is    therefore        unconstitutional             under      article      II,      section      1 and
article      III,    section     1 of the Texas Constitution.

        Article       II.     sectior       1   of    the    Texas     Constitution          provides        as
 follows :

                    The powers     af the Government           of the State        of
               Texas shall     be divided      into    three    distinct    depart-
               ments, each of which shall          be confided       to a separate
               body of magistracy,       to wit: Those which are Legisla-
               tive    to one, those which are Executive               to another,
               and those      which are Judicial           to another;       and no
               person,    or collaction       of ,persons,      being    of one of
               these departments,       shall exercise       any power properly
               attached     to eit.h.er    of   the others,        except    in the
               instances    herein   expressly      permitted.



                                                       p.   2338
Honorable       Ray Keller        - Page       3     (JM-509)




Article      III.    section       1. provides:

                    The Legislative     power of this   State   shall                             be
                vested  in a Senatme and House of Representatives,
                which together    shall by styled  'The Legislature                               of
                the State of Texas.'

        These    provisions     prohibit      the legislature         from delegating           its
power to enact laws.            Brown V. Rumble Oil 6 Refining                Co..    83 S.W.2d
935 (Tex.      1935).      The lx?lature's          power under article        V, section         23
of    the Texas Constitutioc            to prescribe         the sheriff's         "duties      and
prerequisites"        must be exex,cised       consistently       with article~~I1,       section
1, and article          III,   sect,Lon    1 of      the constitution.          Although        the
legislature      may control      the, sheriff's      discretion,      it may not authorize
a private      entity    to do so.

        If      the      legislature         declares          a policy           and fixes           a primary
standard,          it may delegate              to an administrative                  body or office               the
power       to promulgate            rules       and prescribe             details      to carry          out      the
legislative           purpose.        Brown
                                      --       v.    Rumble      Refining       Co.,    D;         Margolin          v.
State,       205 S.W.2d 775 (Tea:. Grim. App. 1947).                               Legislative         power may
not be delegated               to the uncontrolled               discretion         of a private           indivi-
dual or entity.               Carter v. Carter Coal Co.,                     298 U.S. 238 (1936)                (wage
and hour regulations                 for czal        industry        may not be determined                 by vote
of producers              and miners);           Calvert       v. Capital           Southwest        Corp.,        441
S.W.2d        24i (Tex.         Civ.     App. -- Austin            1969. writ ref'd             n.r.e.);         a
dism...397..U.S.,321              (1970)     (legislature            cannot delegate           to Congress           or
a          Business         Administrat,ion           power to declare              requisites         of mutual
investment           company);        Rosnc!r v. Peninsula
                                      --                                  Hospital      District,          36 Cal.
Rptr.       332 (Cal.         App. 1964)           (public      hospital        could      not require           that
 staff      physician         carry       ma:lpractice         insurance);          City     of Bellview             v.
Belleview          Fire Fighters,            367 So.2d           1086 (Fla.          Dist.     Ct. App.           [lst
Dist.]        1979) (city        could not delegate               to fire      fighting      association            all
 control       over fire        protection.          including        hiring      of firemen        and setting
 of fire       fighting       policies);        C. Curtis Martin Investment                    Trust v. Clay,
 266 S.E.2d            82 (S.C.        1980)      (former       private       owner of publicly                 owned
 sewer system could not hav! power to approve or disapprove                                          connections
 to sewer system);                Willis     2'. Town of Woodruff,                   20 S.E.2d          699 (S.C.
 1942)       (city      could     not make issuance                of building         permit       for     filling
 station        contingent         on permission            from surrounding             property         owners);
 Attorney        General Opinions            K-41 (1973)           (legislature        could not empower a
 private         association          to regulate            the relationship              between        dentist,
 patient,         and     third     party     which       provides        patient's       dental       benefits);
 C-73      (1963)        (questioned        lrhether        Texas       State    Board of Examiners                   in
 Optometry         could make adop:ion                 of rules        contingent       on two-thirds             vote
 of licensed           optometrists).            See also Spann v. City of Dallas,                        235 S.W.
  513 (Tex.        1921) (ordinance           which makes construction                   of a business            in a
 residential           district      contingent          on consent        of adjacent        property        owners
  is void        as improper         exercise         of the police           power);       Texas Pharmaceu-
  tical     Assn. v. Dooley,             90 S.W.2d 328 (Tex. Civ. App. - Austin 1936, no




                                                           p.    2339
Honorable     Ray Keller        - Page 4        (JM-509)




writ)     (finding      invalid    stawte       authorizing     State Board of Pharmacy to
transfer        licensing       fees    to      private     corporation   not  under  state
control).

       The legislature         may ut;e a private        entity    to implement its policy,
but may not cede legislatira                discretion     to that entity.          See Attorney
General Opinions          M-68 (196;‘);      V-736 (1948);      V-265 (1947)       (authority      of
state     licensing      agency to ‘aae examination           prepared      by private     testing
service).         See also Holmes, v. Roemako Eospital.                   573 P.2d 477 (Aria.
1977)       (public      hospis-requirement                 that     staff     physicians       have
malpractice         insurance     is nD,t improper delegation);             Parker v. Board of
Behavioral        Science     Examinezs,       125 Cal. Rptr.       96 (Cal.      App. 3d 1975)
 (requirement        that licens&erl      have graduated       from an accredited         institu-
tion does not delegate              le~;islative      authority     to accrediting        associa-
tion).

       Under a contract              authorized          by article          1581b-2,      V.T.C.S.,          a
nongovernmental        body could :insist            that deputies          assigned     to patrol        its
property      remain there,          even if the public                interest      would be better
served      by    their      deploymient          elsewhere.            The    statute       is      not      a
legislative       limit     on the sheriff’s                  discretion,        but    a legislative
attempt      to    authorize        a private            entity      to    control      the     sheriff’s
discretion.         The nongovernmental                association          need not       fulfill        any
requirements       aside from readiness               to pay for law enforcement                services.
No statutory        controls      are included             to insure       that contracts          for law
enforcement       services~     will     carry      out the stated           purpose     of protecting
the public      interest.        V.T.C.S.        art.      1581b-2,      51.    The statute         instead
~6~~6s~ the’ interest-.of-nlnl~e~mtal                            as6oci8ticm6        -In -guaranteeing
themselves       a particular             ‘level      of     law enforcement            services.           We
conclude      that article         15811~2,       V.T.C.S.,         is not a valid          exercise        of    ,
legislative       power.       Its     enactment          does not alter          the conclusion            of
Attorney     General Opinion J&57.

                                              SUMMARY

                     Article      15811~2.      V.T.C.S.,    which      attempts    to
                authorize        a    munty       sheriff      or    constable       to
                contract      with a nongovernmental            entity    to provide
                law enforcement          services     is invalid,     as an attempt
                to delegate        leg:.olative      power to a private        entity
                in violation        of article      II, section      1, and article
                III.    section     1, of the Texas Constitution.




                                                                J-I M    MATTOX
                                                                Attorney  General        of   Texas



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Honorable   Kay Keller      - Page    5     (JM-509)




JACK HIGHTOWER
First Assistant Attorney         Gmeral

MARY KELLER
Executive Assistant        Attormy        General

RICK GILPIN
Chairman, Opinion        Coumittec:

Prepared    by Susan L. Garrimn
Assistant    Attorney Generals




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