                                 ATTORNEY GENERAL OF TEXAS
                                               GREG         ABBOTT




                                                  February 17,2010



The Honorable Yvonne Davis                                Opinion No. GA-0760
Chair, Comniittee on Urban Affairs
Texas House of Representatives                            Re: Authority of a sheriff to accept a fee from a
Post Office Box 2910                                      private organization that contracts with the sheriffs
Austin, Texas 78768-2910                                  county to operate the county jail (RQ-0823-GA)

Dear Representative Davis:

       You ask several questions involving section 351.101 of the Local Government Code.!
Section 351.101 provides, in relevant part, that:

                           The commissioners court of a county, with the approval of the
                   sheriff of the county, may contract with a private organization to
                   place inmates in a detention facility operated by the organization.
                   The commissioners court may not contract with a private organization
                   in which a member of the court or an elected or appointed peace
                   officer who serves in the county has a financial interest . . .. A
                   contract made in violation of this section is void.

TEX. Loc. GOV'T CODE ANN. § 351.101 (Vernon 2005). You describe, generally, a situation in
which a county and a private organization have entered into a contract under section 351.101. See
Request Letter at 1. You tell us that the person holding the office of county sheriff would be paid
an administrative fee by the private organization "based upon inmate count" and "ostensibly" for the
sheriffs administrative responsibilities with respect to the contract. 2 Id



         ISee Request Letter at 1-2 (available at http://www.texasattomeygeneral.gov).

          2We received a brief averring that the contract structure utilized in a particular county is different from the
contract structure described in the request and that the sheriff receives only a salary from the county. Brief from Michael
W. Dixon, Haley & Olson, P.C. at 2 (Oct. 5,2009) (on file with the Opinion Committee). We answer only the general
questions posed in the Request Letter, and in doing so we must rely on the factual representations ofthe one requesting
our opinion. See Tex. Att'y Gen. Op. No. GA-0249 (2004) at 2 (stating that fact questions cannot be answered in the
opinion process and assuming that the request letter has provided a "correct and complete version of the facts"); see also
Tex. Att'y Gen. Op. No. H-772 (1976) at 6 (relying on facts as presented in the request letter). A court considering a
specific contract and a specific set of facts could arrive at a different conclusion.
The Honorable Yvonne Davis- Page 2              (GA-0760)



        You. state that because a county may not enter into such a contract for jail services without
the sheriff's approval, a situation involving the sheriff s personal acceptance of a fee paid by a
private organization raises the following questions:

                1. Is there any constitutional or statutory authority which allows a
                sheriff to be offered or to accept an administrative fee paid by a
               .private organization?

                2. Does the acceptance of such an administrative fee by the sheriff
                constitute or is it tantamount to having a "fmancial interest" in the
                private organization which violates Section 351.101 of the Texas
                Local Government Code and causes the contract to be void?

                3. Is the payment or acceptance of an administrative fee to the
                sheriff, who must first approve the contract betw~en the county and
                a private organization wishing to operate a facility for county
                prisoners, a violation of any criminal laws?

Id at 1-2. Because you do not ask about a particular contract, we can address your questions only
generally. See id at 1 (noting several such contracts in Texas but stating that the request is not
"requesting an opinion for any certain contract").

         First, you ask broadly about a sheriff's authority to accept an administrative fee from a third
party. See id at 1 (noting also that a "sheriff's salary/compensation includes being paid for the safe
keeping of county prisoners"). Article XVI, section 61 of the Texas Constitution requires that
"county officers in counties having a population of twenty thousand (20,000) or more . . . be
compensated on a salary basis." TEx. CONST. art. XVI, § 61(a); see also id. art. V, § 23 (providing
for election of sheriff by county voters). In counties with a population ofless than twenty thousand,
the "Commissioners Courts have the authority to determine whether county officers shall be
compensated on a fee basis or on a salary basis, with the exception that it shall be mandatory upon
the Commissioners Courts to compensate all sheriffs ... on a salary basis." Id art. XVI, § 61(c).
Thus, regardless of county population, county sheriffs must be compensated on a salary basis. A
sheriff, paid on a salary basis, "receives the salary instead of all fees, commissions, and other
compensation the officer would otherwise be authorized to keep." TEx. Loc. GOV'T CODE ANN.
§ 154.002 (Vernon 2008); see also Moore v. Sheppard, 192 S.W.2d 559, 560 (Tex. 1946)
(associating officer's "fees of office" with fee charged for performance of the officer's official
duties). While article XVI, section 61 requires that a fee of office earned by a county officer "shall
be paid into the county treasury," it is not a grant of authority for the acceptance of a fee. TEx.
CONST. art. XVI, § 61(d); cf TEx. Loc. GOV'TCODEANN. § 154.005(c) (Vernon 2008) (permitting
Sheriff to receive reward for apprehended criminal or stolen property). In addition, the Local
Government Code expressly places the authority to establish the "amount of ... compensation" for
county officers with the county commissioners court. See TEx. Loc. GOV'T CODE ANN. § 152.011
(Vernon 2008) (authorizing the commissioners court to set the compensation for county officers paid
The Honorable Yvonne Davis- Page 3             (GA-0760)



wholly from county funds). Accordingly, we conclude that neither the Texas Constitution nor Texas
statutes authorize a county sheriff to accept from a private organization an administrative fee such
as you have described.

        Second, you inquire whether the sheriff's acceptance ofthe administrative fee from a private
organization constitutes or is tantamount to a "financial interest" under section 351.101. See Request
Letter at 2. Because of our conclusion that there is no authority for a sheriff to accept the fee
described, we need not address this question.

         Third, you ask whether the sheriff's acceptance of an administrative fee violates any criminal
laws. Id Whether particular conduct constitutes a violation of a criminal statute involves questions
of fact that are outside the purview of the opinion process. See Tex. Att'y Gen. Op. No. GA-0485
(2006) at 4 (noting that questions involving issues of fact are outside the Attorney General opinion
process).
The Honorable Yvonne Davis- Page 4          (GA-0760)



                                    SUMMARY

                     Neither the Texas Constitution nor Texas statutes authorize
              the person holding the office of county sheriff to be paid an
              administrative fee by a private organization.




ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
