Attorney General Opinion JM-0057

The Attorney General of Texas August 16, 1983 JIM MATTOX Attorney General Suprme Can Bullding P. 0. Box 12545 Auslln. TX. 75711.2545 512.I475.2501 - Telex 91am74-1357 ~olcopier 51Z47M 1507 Maln St. Suite 1400 oaaar. TX. 7520147oli 2W742.5944 4524 AlbWla Ave.. Suit; 150 El Paso. TX. 799052793 &1515J33ull’ ‘1220 Dallas Ave.. Suite 202 Nous10n. TX. 77002as56 7lY55oa55 505 Broadway. Suite 312 Lubbock. TX. 79401-3479 M&747.5235 4W9 N. Tenth. SuIta 8 McAlhn. TX. 71331.1555 512ea2.4547 200 Main flua. till* 400 SW, An,miO. TX. 782052797 5121225.4191 An Equal Oppwlunilyl Allirmaflre Action Employer Ronorable William A. Meltten Criminal District Attorney Fort Bend County Courthouse Richmond, T&r 77469 Opinion No. Jk+57 Bc: Whether a county sheriff or constable may contract with a private homeowners assocla- tioo to furnish it law enforce- ment services Dear Ur. kitsto: You have requested our oploloo concerning the authority of a county to cootract vith ~private entities to furnish certified peace officer law l oforcewot protection 10 return for monetary paymants to the county. ‘Over the course of the years this arrangement has been the subject of opiolons from this office and Texas courts, and it ie our understanding that such a practice io Texas is oot uncommoo. There Is uo statute l xtaot vhlch purports to authorize such contracts, oor r coostitutional,provisioo at present upon which such a statute could be based. Article III, section 52f, of the Texas Constitution, adopted in l!@O,,allws couocies having a.populatiou of 5,OOD or less~to constmct l od,maintaio private rbads for a reasouable charge. but oo other caartitutiona~ pr&yisioo. of which we are aware permits~~cootm~~~ of this tituri. T%e pollcC~-power 6f the ata&‘is ‘a fkndameotal attribute of. eovereigoty, l ud the Texas Coirstitirtim- ,rcquirer that the powers of governmeat be confided ooly to bodies ‘of “magistracy.” Tex. Coost. art. II. 41. See City of Dallas v.‘Smith, 107 S.W.Zd 872 (Tu. 1937). 10 our opioionzounty officers may oot subject their lav enforcement respoosibilitlea and functions to private control or dircctiun. See 72 Am. Jur. 2d States, Territories and Dependencies, Il. at 406 (19m (duties of the state). A sheriff.: constable. or deputy Is a peace officer vhose duty it is “to preserve the peace within his jurisdiction.” Code Grim. Proc. arts. 2.12, 2.13. Peace officeis must be certified by the state. V.T.C.S. art. 4413(29aa). They are vested with privileged authority to make arrests, article 14.03 of the Code of Criminal Procedure, and to possess handguns, sections 46.02 and 46.03 of the Penal Code. You specifically ask whether a county sheriff or constable can contract, through the commissionerr court, with a private homeowners Honorable William A. Meltzen - Page 2 (JM-57) association to furnish law enforcement services to the association whose geographical area is not within the corporate limits of any municipality. YOU have furnished us a copy of the contract between Fort Bend County and the Sugar Creek Homes Association, a Texas corporation (whose property may be nominally taxed, section 23.18 of the Tax Code; but see Attorney General CpiOion S-1220 (1978) (provision unconstitutional)). The contract was executed by the commissioners court and the president of the association. The contract calls for the appointment and assignment of four deputy constables who shall “devote substantially all of their working time to the area known as Sugar Creek” and whose “salaries and expenses” will be ~paid by the association to the county. The agreement calls fork tventy-four hour protection. The contract provides for payments to the county in the aggregate amount of $120.000 over the twelve month term of the agreemsot. It is agreed that the deputies shall be under the supervision and control of the constable. The deputies are required to remain oo patrol in Sugar Creek except in Instances of “emergencies.” If the full number of deputies are not assigned. the association is entitled to a pro rata refund from the county. There are no provisions in the agreement concernlog liability or indexmificatioo in the event of litigation. Although the submitted contract pertains ooly to the office of constable, our answer and discussion will also apply to the sheriff’s office, as in your question. For purposes of this opinion we will assume that any activity by the specially assigned peace officer would be conduct legitimately pursued by a law enforcement officer in the ‘oormal course of his duty to preserve the peace. That is. we amnne that the officers are pursuing a proper public purpose In their acts. While the’contract states .that it shall oot !‘obligate the cbastable” ve believe the agreement as a whole Interjects an impermissible influence aod has a substaotial and rul effect on the exercise of discretion as to the deolovment of deputy oeace officers . - by the constable, or the sheriff, as the case may be. - The court lo Weber v. City of Sachse. 591 S.U.Zd 563 (Tex. Civ. App. - Dallas 1979. no writ). discussed the sheriff’s law aaforcemeot discretion regarding deployment of his deputies. The case concerned a suit by Incorporated municipalities seeking a writ of mandamus compelliog the sheriff to patrol vithin their boundaries. The county had elected to patrol only the unincorporated areas of the county. The court held that this was a proper exercise of the county’s discretionary authority as to the level of law enforcement protection and that the sheriff could not be compelled to provide patrols as requested because his decisions as to the deployment of law enforcement officers within the county are left to his discretion and judgment since this matter Is not specifically prescribed by law. p. 230 Honorable William A. Heitaen - Page 3 (JM-57) Id. at 567. While we certainly agree with the court’* holding that a district court cannot Interfere with the exercise of discretion by the county regarding law enforcement, we do not believe that such discretion sanctions the execution of a legally impermissible contract. The court in Murray v. Rarrfs. 112 S.W.Zd 1091 (Tex. Civ. App. - Amarillo 1938. writ dism’d). held that the county sheriff could not contract away his discretion to appoint and discharge his d.eputlea at his pleasure es authorized by article 6869. V.T.C.S. The court held that an employment contract with a deputy guaranteeing employmsnt for the duration of the sheriff’s’ term was void and unenforceable. The court stated that the effect of the -contract. signed by the sheriff, would be to abrogate and abandon the important option placed in him by law to terminate the employment at his will or pleasure. Id. at 1093. - It la our opinion that a county sheriff or constable may not, through a contract executed by the commissioners court; contract avay or restrict his discretionary duty regarding the appointment, assignment. and deployment of deputy peace officers. We believe that the agreement to provide law eoforcemeot protection. -an obvious governmental ~function and police power of thei county. Is void as contracting away such authority. The court in Clear Leke -City Water Authority v. Clear Lake Utilltiea Company. 549 S.W.2d 385 (Tex. 1977). held that a water district could not , by contract or otherwise, bind itself in such l vay as to restrict its free exercise of [its] ~governmental powers. Id. at 391. See also Texas Power 6 Light Company v. City of Garland, 431 S.W.2d 511 (Tex. 1968) (contracting avay police power); Pittmao v. , 598 S.W.Zd 941 (Tex. Clv. App. - Amarillo 1980, writ idelity Land 6 Trust Company of Texas v. City of West University Place, 496 S.U.Zd 116 (Tex. Civ. App. - Houston (14th Dist. 1 1973. writ ref’d 0.r.e.) (sever eesements - surrender of govekmentai power by contract); Control and Improvement District. Beaumont 1955. writ ref-‘d n.r.e.) (contract abdicating police pover of water district void and illegal); City of Belleview v. Belleview Fire Fighters. Inc., 367 So.2d 1086 (Fla. Dlst. Ct. App. [lst Disc.) 1979) (contract taking discretion in fire fighters policy away from municipal corporation resclnded). Several courts and attorneys general have discussed "law enforcement by contract” schemes but have not discussed their basic p. 239 Honorable Willlam A. Meltsen - Page 4 (Jh-57) legality. The case of Hudson v. St. Louis Southwestern Railway Company of Texas, 293 S.W. 811 (Tex. Comm’n App. 1927. holding aooroved) concerned a wrongful death action which arose as a result of . . - a state ranger being assigned to protect the property of the railway company. The railway company had applied to the governor for the special appointment of state rangers during a labor strike. It was agreed that the company would pay the salaries and expenses of the peace officers. There was 00, discussion in the case as to the legality of such arrangement; the court simply held that the ranger was acting vlthio an employment capacity of the company thereby imposing liability oo the company for wrongful death. The holding and the facts In Lancaster v. Carter. 255 S.U. 392 (Tex. 1923) are similar to Hudson. Deputy sheriffs had been appointed and assigned to guard the property of a railroad company. The sheriff admitted that he exercised no supervision or had any knowledge of the acts of the deputy. The deputy was compensated exclusively and directly by the railroad company. The court held the deputy to be an employee of the company and the latter liable for the wrongful death by the deputy. Furthermore, the court stated that [t]he sheriff had no authority to appoint or detail a deputy to guard and watch the property of the railroad, except in specific cases of threatened injury. Id. at 393. The court in Texas and N.O.R. Company v. Parsons, 113 G. 914 (Tex. 1908). similarly held that a deputy peace officer assigned to protect railroad premises was acting as-an employee of the company. making the latter liable for the wrongful death at issue in the case, and that the sheriff had no, authority to make such an appointment. 9 10 Attorney General Opioioo O-4338 (1942). this office concluded that Humble Oil and Refining Compaoy could not hire a deputy sheriff to guard its oil storage tanks and other property. The company had agreed to pay the county the monthly salary of the deputy assigoed. In the opinion it was atated: Under the facts as submitted In your letter, this deputy is to be assigned to guard the oil storage plaots and oil wells of a private concern. He will of necessity have to devote his entire time to this task, and will not be available for assignment e.lsewhere. He will not be subject to the orders of the sherlf f nor will he be responsible to him. Under these circumstances. it is our opinion that the sheriff would have no authority or legal right to issue a commission to a person to perform such services. Id. at 4. - p. 240 Honorable Ullliam A. Meitzen - Page 5 (~~-57) r. In Attorney General Opinion O-207 (1939). this office determined that the sheriff could not issue comissions to. that Is. deputize. persons acting AA “watchmen. poundmasters, And others whose business requires them to carry large sums of money on their persons.” ~The sheriff may not Appoint A special deputy to patrol in annual county cqlebration without complying with the certlficAtion requirements for peace officers, Attorney General Opinion H-1002 (1977). nor may the sheriff appoint “special deputies” who Are AssignAd no official duties. See Attorney General Opinion V-699 (1948). - The appecrls court in Bounty Bellroom v. Bain, 211 S.W.Zd 248 r- (Tex. civ. App. - Amarillo 1948. vrlt ref’d n.r.e.1. gAve tacit approval of Lou enforcement by contract Arrangements. ThL~ city bf Dallss, A home rule city, had passed AII ordinance permitting dAnce hall operators to request the assignment of e “specie1 police officer” to the business premises for which the owner paid then city en established fee. The power ‘of supervision and Assignmsat of the special officers. remained. under the ordinance. with the city’s chief of police. Also, under the “Dance Hall Code” the wages of the special officers CAIN strictly from the fees received from the various business establishments. A peace off1ce.r engaged ~~8s involved in A scuffle while evicting A patron at the dance hall. inflicting injuries for vhich the patron sued the owners And the officer. The issue and holding of the case concerned whether the owners were liable under the master-servant doctrine, or whether the officer was pursuing his duties As A public official for which the owners Are sot ii-able. We believe.that Any language In the opinion approving manner of contract Is dicta And contrary to Authorities her+ relating.specifically to county peace officers; such authority to contract WAS not litigated in the case nor essential to its holding. Furthermore, WC believe the case is inapplicable because it pertained to the nuthorlty of A home rule city rather than to A county. The deputy is paid by the county, At IeAst facially. We believe it is not necessary to discuss the basic rule of low that A public officer mry not Accept compeneation from third parties or privAte sources for the performsnce of official dutias. Knsling v. Morris, 9 S.W. 739. 740 (Tex. 1888)1 See Penal Code 536.02 (brlbcry); Attorney General Opinion C-661 (1966)(county sheriff’s Authority to contract with municipality) ; Attorney General Opinion O-773 (1939) (deputy sheriff mey not become employed by dance hall And Accept compensation). Attorney General Opinion O-1565 (1939) Also concluded that A deputy constable may not be employed And paid by A tavern to enforce the IAV. The opinion stated: ,- A constable only has the legal right to Accept compensation prescribed for him by law and that he may not legally accept compensation from private sources for patrolling And. performing his duties of enforcing the law. p. 241 Honorable William A. Meltzen - Page 6 (JM-57) Id. At 6. - BeCAuse the agreement In question provides that it shall not “obligete” the county And that the Assigned officers remsin under the supervision of the elected peace officer. and thereby, Arguably. making inAppliCAble the Authorities discussed above prohibiting ContrActlng *way such responsibilities. we believe it Is necessary to discuss public policy And constitutional questions. The appearance of impropriety. the potentinl for conflicts of interest, And the potential for less than impartial enforcement of the law. are matters for serious considArAtlon when LAW enforcement officers knov that their positions nre supported and funded voluntarily by persons they police. Furthermore; we believe the bnre~ cost items of reimbursement to the county -- Automobile expenses And SAlAries -- do not AdeqUAt8ly cover the full value received by the nssociation in the purcha88 of the county’s nnme. speciA1 authority. and the “good will.” AS it were. of the county. Such Aspects of official imprimatUr are of value and ore conveyed gratis to A defined group of individuals In violation of article III, section 52. of the Texas Constitution. which denies pOlitiCA subdivisions the authority “to grant public money or thing of value in ald of, or to any individual, sssociatlon or corporation whatsoever.” Although we nre imputing no improper motives to those wishing to secure law enforcement protection in this manner. we believe that permitting A group of economically able persons to purchase additional protection is fraught with potential for abuse And is An unorthodox manner of conducting the affairs of government. The proper manner with which to Increase the level of lab enforcement protection offered by the county is. ~~eithAr._An~~increase in county taxes, A reallocation by the commissioners court of the Available county revenue. or municipal incorporation. We believe that when An Area within the unincorporAged portion of the county has such A pressing need for the law enforcement protection contemplsted by the agreement. there probsbly existA sufficient rensons fo,r the territory to incorporate and create their owe law enforcement agency. The parties pay then clearly be entitled to contract for law enforcement protection under the Interlocal Cooperation Act. Article 4413 (32~). or article 999b. V.T.C.S.. which pertains to interlocal nssistaace among lnv enforcement officers. Even without incorporatlon. there is Adequate provision in stnte lnw permitting private concerns to hire security services. The Private Investigators and Private Security Agencies Act, article 4413(29bb), V.T.C.S., permits A person, Association. or corporation to employ the services of A “guard company” to provide A “private WatChmn, guard or street patrol” to protect private property And protect persons from bodily harm. Id. §2(4). These considerations. in addition to restriction of discret% discussed above. in our ooinion render the asreement In auestlon here void As AgAinSt~public policy And unconstitutional. See ‘Hazelwood v. handrell Industries Company, Ltd., 596 S.W.Zd 204 (Tz Civ. App. - Houston [lst Dist.] 1980. writ ref’d n.r.e.1; Locomotive Engineers and Conductors Mutual Protective Association v. Bush, 576 S.W.2d 887 (Tex. -... p. 242 HonorAble Willlam A. Meitzen - Page 7 (~~-57) Cl”. App. - Tyler 1979. no writ); Restatement (Second) of Contracts 5179 (1979). The funding for county lnv enforcement protection comes from the general fund of the county which is generated by tAX revenues and other legitimate county fees And charges. The commissioners court is vested with discretion with rAgArd to the allocation of this public money for law enforcement and has the duty to AdeqUAtelY fund the v. Commlssior sheriff’s office. See V.T.C.S. Arts. 3899.w3g99b. 3902, 3Y12k; Vondy hers Court of Dvalde. 620 S.W.Zd 104 (Tex. 1981) t reasonnble salnry for constable); (commissioners court required to set cf. Attorney CenerAl Opinion H-1190 (1978) (duty to fund county jnil). In our opinion, neither A county, A sheriff, nor A constnble is empowered to enter into A contrnct with privnte entities or homeowners to furnish them specinl law enforcement protection unAvAilAble to others. All such agreements A’re void And unenforceable. Cf. Attorney General Opinion MU-236 (1980) (deputy sheriff acting asfndependent contractor during off-duty hours). Although protection not AVAilAble to others might be furnished to Areas or persons in the exercise of A reasonable ~discretion based on general public need, Weber v. City ~of Sachse. suprs. county officisls Are not At liberty to base such decisions on the wishes of private groups to have public equipment And personnel specially devoted to their interests. or upon the willingness of such groups to pay therefor. See Ex parte Cower. 357 S.W.2d 740 (Tex. 1962). - SUMMARY-- . _^ _ _- - --- _ . A county may not contract with A homeowners associntion to provide la+ enforcement protection ’ by county peace officers. I I JIM MATTOX Attorney General of Texas TOM GREEN First ASsistAnt Attorney Genera3 DAVID R. RICHARDS - Executive ASSiStAnt Attorney General Prepared by David Brooks Assistant Attorney General p. 243