                           ATTORNEY GENERAL OF TEXAS
                                       GREG       ABBOTT




                                          October
                                                31,2006



The Honorable Joel D. Littlefield                    OpinionNo.     GA-0480
Hunt County Attorney
Post Office Box 1097                                 Re: Whether a deputy sheriff may use a county
Greenville, Texas 75403-1097                         patrol vehicle to perform off-duty security work
                                                     @Q-0482-GA)


Dear Mr. Littlefield:

        You inform us that Hunt County “deputy sheriffs working off duty security used county
patrol vehicles, in the course and scope of that off duty employment, without reimbursing the county
for the use of the county patrol vehicle.“’ Consequently, you ask four questions about the authority
of a deputy sheriff to use the county’s vehicle in this manner. Request Letter, supra note 1, at 1.
Specifically, you ask:

                         (1) May a deputy sheriff who is engaged in working off duty
                (security) employment, use a county patrol vehicle in the course and
                scope ofthat offduty (security) employment, without reimbursing the
                county for the use of the county patrol vehicle?

                        (2) May a Sheriff allow a deputy sheriff, who is engaged in
                working off duty (security) employment, to use a county patrol
                vehicle in the course and scope of that off duty (security)
                employment, without providing reimbursement to the county for the
                use of the county patrol vehicle?

                         (3) Should reimbursement of the county vehicle be required
                for its use in the above, which individual or agency sets the amount
                to be reimbursed to the county for its use-the         sheriff or the
                commissioner’s court?




        ‘LetterfromHonorableJoelD.Littlefield,HuntCountyAttorney,to HonorableGregAbbott,AttorneyGeneral
of Texas at 1 (Apr.26, 2006) (on file with the OpinionCommittee,also availabfeaf http://www.oag.state.tx.us)
[hereinafierRequestLetter].
The Honorable Joel D. Littlefield    - Page 2          (GA-0480)




                        (4) May the Commissioner’s Court prevent patrol vehicles,
                which were assigned to the sheriffs office, from being used in off
                duty (security) employment by deputy sheriffs?

Id. at l-2. Because your first two questions raise related questions of law, we treat them together,

        Article III, section 52(a) of the Texas Constitution provides that the “[llegislature shall have
no power to authorize any county          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, $52(a).
This provision is not violated if the public receives consideration for granting a thing of value. Tex.
Mun. League Intergov’tl Risk Pool v. Tex. Workers’Comp. Comm’n, 74 S.W.3d 377, 383 (Tex.
2002). This provision, moreover, does not prohibit a grant of a public thing of value that incidentally
benefits a private party if the grant is made to accomplish a legitimate public purpose. Walker v. City
of Georgetown, 86 S.W.3d 249,260 (Tex. App.-Austin               2002, pet. denied). To satisfy this public
purpose exception, the grant’s predominant purpose must be to accomplish a public purpose, not to
benefit private parties; there must be public control over the assets to ensure that the public purpose
is accomplished and to protect the public’s investment; and the public must receive a return benetit.
Tex. Mun. League Intergov’tl RiskPool, 74 S.W.3d at 384.

        A sheriff is required to conserve the peace within the sheriffs county. See TEX.CODECRLM.
PROC.ANN. art. 2.17 (Vernon 2005). Because no statute prescribes the manner in which a sheriff
is to conserve the peace, it is for the sheriff, in the exercise of reasonable discretion, to determine
howbestto accomplishthisduty.        Weberv. CityofSachse, 591 S.W.2d563,567(Tex.App.-Dallas
1979, writ dism’d). The patrol vehicles allocated to a sheriff by a commissioners court are tools to
be used by the sheriff to perform the sheriffs law enforcement duties. See Tex. Att’y Gen. Op. No.
GA-0158 (2004) at 4 (“The sheriff’s vehicles belong to the county, which acts through its
commissioners court.“). By extension, then, a sheriff has discretion over the vehicles allocated to
the sheriff, including the discretion to determine how the sheriffs deputies are to use those vehicles
in providing law enforcement within the county.

        But a sheriff is bound by the constitution  and other laws of this state. See T&x. Lot. GOV'T
CODE ANN. 5 85.001(c) (Vernon Supp. 2006) (requiring            sheriff to take official oath). Texas
Constitution article III, section 52(a), and the case law interpreting that article, circumscribes a
sheriffs discretion over county patrol vehicles, but it leaves to the sheriff the authority to permit the
use of the county’s patrol vehicles in a manner that satisfies the public purpose doctrine, subject to
judicial review. See Barrington v. Cokinos, 338 S.W.2d 133, 142 (Tex. 1960) (“[A] court has no
right to substitute its judgment and discretion for the judgment and discretion of the governing body
upon whom the law visits the primary power and duty to act.“). Therefore, in answer to your first
two questions, the sheriff may authorize deputy sheriffs to use county patroi vehicles during off-duty
 security employment       without the deputies reimbursing the county for that use only if the
predominant purpose ofthe off-duty use is to conserve the peace within the county, the sheriff retains
The Honorable Joel D. Littlefield     - Page 3           (GA-0480)




control over the vehicles in a manner that ensures the peace will be conserved,              and the county
actually receives this public benefit.’

         You next ask: “Should reimbursement of the county vehicle be required for its use in the
above, which individual or agency sets the amount to be reimbursed to the county for its use-the
sheriff or the commissioners court?” Request Letter, supra note 1, at 2. This question presupposes
that, for circumstances in which the sheriff determines that use of the county patrol vehicle does not
accomplish a legitimate public purpose, a deputy may use the vehicle as long as the county is
reimbursed for such use. This presupposition is incorrect.

         It is well established that a sheriff has no authority to enter into contracts binding the county
except where specifically authorized by statute. Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex.
 194 1). We have found no statute that authorizes a sheriff to bind the county in a lease of its vehicles
to deputy sheriffs for the deputies to use in a private capacity. Therefore, the sheriff may not set the
amount of money that would reimburse the county for the use of its vehicles because that would be
a contract term. And a commissioners court, although it is the entity with jurisdiction over all county
business, ‘&x. CONST.art. V, 5 18(b), and “although [it] may exercise broad discretion in conducting
county business, the legal basis for any action taken must be grounded in the constitution or
statutes.” Guynes v. Galveston County, 861 S.W.2d 861, 863 (Tex. 1993) (citation omitted).
Consequently, a commissioners court’s authority to contract on behalf ofthe county is limited to that
authority conferred either expressly or by necessary implication by the constitution and the laws of
this state. Tex. Att’y Gen. Op. No. GA-0085 (2003) at 2. As it is with a sheriff, we can find no
statute that expressly authorizes a commissioners court to lease the county’s personal property in
this way.       Indeed, Local Government         Code chapter 263, which specitically authorizes a
commissioners court to sell or lease county property under certain conditions, makes no provision
for the lease of county personal property in the manner described here. See TEX.LOC.GOV’TCODE
ANN. 33 263.001-,251 (Vernon 2005). Thus, a commissioners court may not lease the county’s
vehicles to the county’s deputy sheriffs to use in a private capacity. Cf: Tex. Att’y Gen. Op. No.
GA-0085 (2003) at 4-5 (determining that a commissioners court could sell county-owned dirt
provided that the dirt fell under a Local Government Code chapter 263 provision authorizing a
 county to sell surplus property).       Accordingly, we need not answer your question as to who
 determines reimbursement amounts, because the county may not lease its vehicles for private use
 in the first place.

        You last ask: “May the Commissioner’s Court prevent patrol vehicles, which were assigned
to the sheriffs office, from being used in off duty (security) employment by deputy sheriffs?”
Request Letter, supva note 1, at 2.




         ‘WenotethatGovernmentCodesection6 12.005requiresthegowning bodyofapoliticalsubdivisionto insure
its lawenforcementofficersagainstliabilityto thirdpersonsarisingout of the officer’soperationof a vehicleowned,
leased,or otherwisecontrolledby the political subdivision“at any time that the officeris authorizedto operatethe
vehicle,includingtimesthat the officeris authorizedto operatethe vehiclewhileoff duty.”TEX.GOV’T CODE ANN.5
612.005(b)(Vernon2004).
The Honorable Joel D. Littlefield   - Page 4          (GA-0480)




        “It is the law in Texas that an elected officer occupies a sphere of authority, which is
delegated to him by the Constitution and laws, within which another officer may not interfere or
usurp.” Renken v. Harris County, 808 S.W.2d222,226 (Tex. App.-Houston       [14thDist.] 1991, no
writ). Based on this statement of the law, this office has said:

                        A commissioners court, which sets the budgetary priorities of
               a county and can decide generally how much of the county’s funds to
               dedicate to each of the county’s purposes, has thereby a considerable
               ability to shape the ways in which an elected county official uses the
               resources of his office. But 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.

Tex. Att’y Gen. Op. No. JC-0214 (2000) at 3. And, as a court has elaborated, “[a] sheriff is under
as much obligation to conduct his office lawfully as is the commissioners’ court its duties.” Tammt
County v. Smith, 81 S.W.2d 537, 538 (Tex. Civ. App.-Fort        Worth 1935, writ refd). Thus, the
sheriff, and not the commissioners court, is responsible for seeing that the sheriffs deputies use
patrol vehicles only for lawful purposes.
The Honorable Joel D. Littlefield   - Page 5        (GA-0480)




                                       SUMMARY

                        Article III, section 52(a) of the Texas Constitution prohibits
               the state and its political subdivisions from granting a thing of value
               for private use. An exception is made where the grant’s predominant
               purpose is to accomplish a public ~purpose, not to benefit private
               parties; where there is public control over the assets to ensure that
               the public purpose is accomplished and to protect the public’s
               investment; and where the public receives a return benefit. Thus, ~a
               sheriff may authorize the sheriffs deputies to use county patrol
               vehicles for off-duty employment without reimbursing the county
               only if the predominant purpose is to conserve the peace within the
               county, the sheriff retains control over the vehicles in a manner that
               ensures the peace will be conserved, and the county actually receives
               this public benefit.

                       There is no authority for a sheriff or a commissioners court to
               contract with a deputy sheriff to guarantee reimbursement to the
               county for the deputy’s private use of a county patrol vehicle. Thus,
               neither a sheriff nor a commissioners        court may set a rate for
               reimbursement.

                       The sheriff, and not the commissioners court, is responsible
               for seeing that the sheriffs deputies use patrol vehicles only for
               lawful purposes.

                                               Very truly yours,




                                               Attorn w   eneral of Texas



RENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee
