Untitled Texas Attorney General Opinion ( 2000 )


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  •                                              May 4,200O
    The Honorable Tim Curry                             Opinion No. JC-0214
    Tarrant County Criminal District Attorney
    401 West Belknap Street                             Re: Questions relating to a conflict between the
    Fort Worth, Texas 76196-0201                        sheriff and commissioners     court of Tarrant
    County with regard to their respective authority
    over budgetary matters (RQ-0144-JC)
    Dear Mr. Curry:
    You have asked this offtce a series of questions relating to a conflict between the sheriff and
    commissioners court of Tarrant County with regard to their respective authority over budgetary
    matters. The controversies revolve around the budgeting ofthe Civil/Mental Warrants Division of
    the sheriffs office, the commissioners court’s request that the sheriffrelinquish certain vehicles, the
    sheriffs deployment of the personnel of his office, the applicability of the county vehicle policy to
    the sheriffs office, and the responsibility for setting minimum bid specifications for equipment or
    vehicles to be purchased by competitive bidding. We begin with a survey of the relevant statutory
    and constitutional provisions, as well as court decisions and opinions of this office which have
    touched upon this matter.
    The commissioners    of a county, and the sheriff of that county, are each constitutional
    officers.    See TEX. CONST. art. V, $ 18 (establishing commissioners        court); 
    id. art. V,
    5 23
    (establishing office of sheriff). The sheriffs “duties, qualifications, perquisites, and fees of office
    [are] prescribed by the Legislature.” Id.; see also Tex. Att’y Gen. LO-98-072, at 2 (“The sheriff is
    an independent constitutional officer, with independent rights and duties.“). Pursuant to section
    35 1.041 of the Local Government Code, the sheriff is “the keeper of the county jail” and is obliged
    “to exercise supervision and control over the jail.” TEX.Lot. GOV’T CODEANN. § 35 1.041 (Vernon
    1999). Further, pursuant to article 2.17 of the Code of Criminal Procedure, the sheriff is “a
    conservator of the peace in his county.” TEX. CODE GRIM. PROC. ANN. art. 2.17 (Vernon 1977).
    Texas sheriffs have “virtually unbridled authority in choosing their personnel, restricted only by
    certain basic constitutional considerations. On the other hand, the commissioners court or members
    of the court are expressly forbidden to attempt to influence the appointment of any person to an
    employee position authorized by the court. The commissioners court may limit the number of
    deputies authorized, but it has no power over naming the individuals to be appointed.”
    Commissioners Court of Shelby County v. Ross, 
    809 S.W.2d 754
    , 756 (Tex. App.-Tyler 1991, no
    writ); accord Garcia v. Reeves County, Tex., 32 F.3d 200,203 (5th Cir. 1994); Williams v. Bag&,
    875 S.W.2d 808,811 (Tex. App.-Beaumont         1994, no writ).
    The Honorable   Tim Curry - Page 2                 (JC-0214)
    However, the general legislative authority ofthe county is in the commissioners court. “The
    business of the county is generally conducted by and through the commissioners court, which can
    ‘exercise such powers and jurisdiction over all county business’ as prescribed by the Texas
    Constitution and by statute.” Tex. Att’y Gen. LO-98-072, at 2 (quoting Texas Constitution article
    V, 5 18). The commissioners court is “the county’s principal governing body,” and its “powers and
    duties         include aspects of legislative, executive, administrative,    and judicial functions.”
    Commissioners Court of Titus County Y.Agan, 
    940 S.W.2d 77
    ,79 (Tex. 1997). The principal power
    of the commissioners court with respect to other county officers like the sheriff is the power of the
    purse strings.
    One of the statutory powers given the Commissioners Court of Texas
    counties, exercisable in that court’s constitutional power over county
    business, is the legislative power of budget-making.
    The process is political. It combines inextricably the
    two legislative powers of ‘taxation’ and ‘appropriation,’ the latter
    being a distribution and setting aside of parts of the total available
    revenue among the various government functions, operations, and
    programs.
    Commissioners Court of Caldwell County v. Criminal District Attorney, Caldwell County, 
    690 S.W.2d 932
    , 933-34 (Tex. App.-Austin 1985, writ ref d n.r.e.) (emphasis in original).
    In carrying out the legislative function of budget-making  the commissioners court has
    significant freedom of action. “The commissioners court performs a legislative function when it
    creates the budget for the county’s offices and departments. This budgetary power carries with it
    broad discretion in making budgetary decisions.” Hooten v. Enriquez, 863 S.W.2d 522,528 (Tex.
    App.-El Paso 1993, no writ). That decision is not, however, boundless. “If the Commissioners
    Court does abuse its discretion, the district court has the power and authority to abrogate such
    actions.” Vondy v. Commissioners Court of Uvalde County, 714 S.W.2d 417,420 (Tex. App.-San
    Antonio 1986, writ refd n.r.e.) [hereinafter “Vondy Il”]; accord Bomer v. Ector County
    Commissioners Court, 
    676 S.W.2d 662
    , 665 (Tex. App.-El Paso 1984, writ refd n.r.e.); Randall
    County Comm’rs Court v. Sherrod, 854 S.W.2d 914,919 (Tex. App.-Amarillo         1993, no writ).
    The district court does not have a right to second-guess the policy decisions of the
    commissioners.     “The allocation of county funds is a discretionary act of the public officials who
    were elected to make such decisions. The district court’s authority extends only to enjoin illegal
    expenditures and to situations where the commissioners abuse their discretion. It has no authority
    to substitute its judgment for that of these elected officials as to the particular expenditures that
    should be made.” Weber Y. City of Sachse, 
    591 S.W.2d 563
    , 566 (Tex. App.-Dallas 1979, writ
    dism’d); 
    accordBomer, 676 S.W.2d at 665
    ; Vondy 
    II, 714 S.W.2d at 420
    ; Sherrod, 854 S.W.2d at
    The Honorable Tim Curry - Page 3                  (JC-0214)
    923. The standard for overturning an action of the commissioners court is “whether the court acted
    without reference to any guiding rules or principles. Another way of stating the test is whether the
    act was arbitrary or unreasonable.” Hooten, 863 S.W.Zd at 533.
    The commissioners     court, therefore, as a body selected by the people and vested with
    discretionary authority, has the power to determine the county budget and may thereby influence the
    actions of other county officials. However, those other county officials, as independent officers, are
    also vested with considerable discretionary authority with which the commissioners court may not
    interfere. “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.2d 222,226 (Tex. App.-Houston [14th Dist.] 1991, no
    writ); accord Abbott v. Pollock, 
    946 S.W.2d 513
    , 517 (Tex. App.-Austin 1997, writ denied). A
    commissioners court, which sets the budgetary priorities of a county and can decide generally how
    much ofthe 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 ofhis 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.
    Perhaps the most succinct statement of the relations which ought to exist between a sheriff
    and the commissioners court was set down by the Fort Worth Court of Appeals sixty-five years ago,
    in another controversy involving the commissioners and sheriff of Tarrant County: “The sheriff is
    under as much obligation to conduct his office lawfully as is the commissioners’ court its duties.
    Neither is Tarrant County, but each has a bounden duty to the administration of the county affairs.”
    Tarrant County v. Smith, 81 S.W.2d 537,538 (Tex. Civ. App.-Fort Worth 1935, writ ref d).
    Having summarized the relevant legal principles, we turn to your specific questions. You
    ask first: “While it is a truism of county government that the commissioners court should reasonably
    fund mandatory duties imposed on the Sheriff and other county officials, what are the guidelines
    regarding the depths ofthe cuts that the Commissioners Court may impose?” Letter from Honorable
    Tim Curry, Criminal District Attorney, Tarrant County, to Honorable John Comyn, Texas Attorney
    General, at 2-3 (Nov. 3,1999) (on tile with Opinion Committee) [hereinafter “Request Letter”]. As
    we understand the controversy giving rise to this particular question, the commissioners court has
    cut the budgets of a division of the sheriff’s department called the Civil/Mental Warrants Division,
    which as its name implies is charged with carrying out the sheriffs statutory duty to serve civil
    process. See TEX. Lot. GOV’TCODE ANN. 5 85.021 (Vernon 1999) (sheriffhas duty to “execute all
    process and precepts directed to [him] by legal authority.“). In the sheriff’s view, as you tell us,
    “these actions have severely compromised his ability to discharge” this duty. Request Letter at 1.
    You seek to know then, in effect, to what extent the commissioners         court may order cuts in the
    budget of this division.
    Generally, reductions in budgets of this sort are within the discretion of the court. As we
    have pointed out, it is well-settled that the commissioners court has broad authority in the essentially
    legislative act of setting the fiscal priorities of the county. See Commissioners Court of Caldwell
    The Honorable Tim Curry - Page 4                  (JC-0214)
    
    County, 690 S.W.2d at 934
    ; 
    Hooten, 863 S.W.2d at 528
    . However, there are limits to this authority.
    The limits are described by the San Antonio Court of Appeals in Vondy IL “The Commissioners
    Court cannot attempt to restrict or abolish a constitutionally    established office by refusing to
    reasonably compensate the holder of such office. The Commissioners Court also cannot attempt to
    abolish or restrict the of$ce of constable by refusing to allow or by preventing the elected official
    from performing those duties required of him.” Vondy 
    II, 714 S.W.2d at 422
    (emphasis added).
    H. T. Vondy, the plaintiffin the above-entitled action, had been elected constable ofprecinct
    6 in Uvalde County in 1978. The commissioners refused to set a salary for his office. The Supreme
    Court ofTexas, in Vondy v. Commissioners Court of Uvalde County, 
    620 S.W.2d 104
    (Tex. 1981)
    [hereinafter “Vondy f’] held that, pursuant to article XVI, section 61 of the Texas Constitution, the
    commissioners were required to set a reasonable salary for his office. See Vondy 
    I, 620 S.W.2d at 108-9
    . In response, the commissioners court set a salary of $40 per month. The court of appeals
    took the view that this salary was unreasonable in light of the statutory duties imposed upon the
    constable. See Vondy 
    II, 714 S.W.2d at 421
    .
    The commissioners      court argued that it need not use constables to serve process, since
    sheriffs could do so. (We note that this argument is the inverse of that of your commissioners who
    have “encouraged the district and county clerk to forward civil process to the constables.” Request
    Letter at 1.) In the court ofappeals’ view, however, this argument was unavailing: “[T]he delegation
    of such duties does not eliminate the obligation of a constable to perform such duties where required
    by law to do so or if called upon to do so; nor does it relieve the Commissioners Court from
    compensating a constable for other services rendered or which he is obligated to perform.” Vondy
    
    II, 714 S.W.2d at 422
    .
    It might be suggested that Vondy II has in effect been overturned by the decision of the
    Supreme Court of Texas in Commissioners Court of Titus County v. Agan, 
    940 S.W.2d 77
    (Tex.
    1997). In that case, the court held that, because payroll preparation was not a “core function” of the
    county treasurer, the commissioners could transfer such responsibility to the county auditor. “The
    Commissioners Court cannot allocate the County Treasurer’s core functions to any other officer,
    including the County Auditor. If the Legislature does not specifically assign a duty to the County
    Treasurer, that duty is not one of the County Treasurer’s core functions. The Commissioners Court
    may, within its discretion, assign those non-core functions to other county officials the Legislature
    authorizes to perform those functions.” 
    Agan, 940 S.W.2d at 82
    . It might therefore be argued, in
    this case, that since both sheriffs and constables have some statutory duty to serve process, see TEX.
    LOC. GOV’T CODE ANN. &! 85.021 (duty of sheriff), 86.021 (duty of constable) (Vernon 1999),
    service of process is not a “core function” of either office, and that Agan has accordingly overturned
    Vondy IZsub silentio. While the argument that such service is not a core function may be correct,
    it does not necessarily follow that Agan applies either in the Vondy situation or in the instant case.
    In Agan, the commissioners could choose whether the duty ofpreparing the payroll be in the hands
    ofthe treasurer or the auditor. Here, however, and in Vondy ZZ,the choice of officer to whom process
    is directed to be delivered is not made by the commissioners court, but by the district and county
    courts. Accordingly, it is still the case that either constable or sheriff may be legally mandated to
    The Honorable Tim Curry - Page 5                 (X-0214)
    execute such process, and the logic of Vondy II - that the commissioners    may not impede another
    constitutional officer in the discharge of his duty ~ remains compelling.
    After Vondy II, then, the rule in this matter may most succinctly be stated as follows: the
    commissioners     court, in exercise of its budgetary powers, may take a different view of the
    importance of certain functions than an elected officer does, and may therefore budget that officer
    less to perform that function than he may request. What, under Vondy II, it cannot do is “prevent[]
    the elected official from performing those duties required of him.” Vondy 
    II, 714 S.W.2d at 422
    .
    Whether any particular budget cut is so severe as to meet this standard is a question of fact, upon
    which we cannot opine. A district court, were it to consider this matter, could not simply substitute
    its judgment as to what constitutes better public policy for that of the duly elected commissioners.
    See 
    id. at 420;
    Bomer, 676 S.W.2d at 665
    ; 
    Sherrod, 854 S.W.2d at 923
    .
    Your second question is whether the commissioners court cm “lawfully require a Sheriff to
    relinquish control of any of the Sheriffs office vehicles and associated equipment.” Request Letter
    at 2,4. As you explain it, the controversy in this instance derives from the commissioners court’s
    desire to reallocate “ten vehicles and associated equipment.” 
    Id. at 4.
    Further, the commissioners
    requested of the sheriff that he turn in one of two vehicles he had assigned to himself. As we
    understand it, the sheriff has done so. However, as to the other vehicles, you write that he wishes
    “to keep this equipment so that he may reassign other personnel to use the vehicles and the
    equipment in continuing to perform civil process service or to perform other official duties of the
    Sheriff.” 
    Id. We do
    not disagree with your premise that these vehicles, “acquired pursuant to Chapter 262
    of the Texas Local Government Code [are not] the property of the office holder.” 
    Id. Certainly the
    cars are not the sheriffs personal property. Were he in fact to treat them as his personal property,
    your office might have a case against him under section 39.02 of the Penal Code, pursuant to which
    it is unlawful for a public servant “with intent to obtain a benefit or with intent to harm or defraud
    another [to] intentionally    or knowingly misuse[r       public property. TEX. PEN. CODE ANN.
    5 39,02(a)(2) (Vernon 1994). Moreover, should the commissioners court disagree with the sheriff
    about the number of cars his o&e needs, it is-as we shall discuss at greater length further ~ within
    its authority to reduce his vehicle budget when it next considers the budget.
    However, if the question is whether the commissioners court may substitute its judgment for
    that of another constitutional     officer in determining how to deploy the resources placed at his
    disposal, such a substitution would in our view amount to an invasion of that “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.2d at 226
    ; accord Abbott v. 
    Pollock, 946 S.W.2d at 517
    . This office has previously opined that a commissioners court may not forbid the
    sheriff, as keeper ofthe jail, to serve Folger’s coffee and Mrs. Baird’s bread to the inmates. See Tex.
    Att’y Gen. LO-96-017.         For the same reason, we do not think that it may micro-manage his
    deployment of the fleet of cars placed at his disposal.
    The Honorable Tim Curry - Page 6                   (JC-0214)
    Nor are we persuaded by your argument that section 262.011(j) of the Local Government
    Code gives the county purchasing agent, with the approval of the commissioners court, “the power
    to determine the appropriate user of county personal property.” Request Letter at 5. Section
    262.01 l(j) reads:
    To prevent unnecessary purchases, the county purchasing agent, with
    the approval of the commissioners       court, shall transfer county
    supplies, materials, and equipment from a subdivision, department,
    officer, or employee of the county that are not needed or used to
    another subdivision, department, officer, or employee requiring the
    supplies or materials or the use of the equipment.        The county
    purchasing agent shall furnish to the county auditor a list of
    transferred supplies, materials and equipment.
    TEX.   Lot. GOV’T CODE ANN. $262.01 l(i) (Vernon Supp. 2000) (emphasis added).
    We read this provision as authorizing a method by which the purchasing agent may transfer
    unused county property to another part of county government so that new purchases need not be
    made when, in effect, the very same items are sitting in storage. Your argument, on the other hand,
    would appear to be that the statutory reference to supplies “that are not needed or used” gives the
    purchasing agent an effective veto power over the decision of other county officers as to whether and
    how they use such supplies and equipment as have previously been allocated to them in the budget
    process. You cite no authority for this proposition, and our research has revealed none.
    You next ask whether, the commissioners court having set the number of positions in the
    sheriffs oftice for a given budget year, the sheriff is authorized to decide to deploy such personnel.
    See Request Letter at 2, 5. It follows from our prior discussion that the sheriff has such discretion
    and that the commissioners court has no general power to countermand his decisions in this regard,
    short of applying to the district court for a writ of mandamus if the sheriff abuses that discretion.
    This office has recently concluded that “it is for the sheriff, in the exercise of reasonable discretion,
    to determine how to allocate the law enforcement services of his office to different parts of the
    county.” Tex. Att’y Gen. Op. No. JC-0125 (1999) at 3-4. Such discretion is of course bounded by
    statutes, as you note, “relating to pay and overtime and other general laws relating to public
    employees.” Request Letter at 8. Thus the actions of the sheriff arc subject to review for abuse of
    discretion, but “not merely because of a dispute between public officials regarding the
    reasonableness of the actions.” 
    Id. Your next
    series of questions concerns the commissioners court’s refusal to order certain
    replacement vehicles allocated to the sheriffs offlice until the sheriff complied with a county vehicle
    policy requiring him to turn in vehicles no longer allocated to this office. You ask, in effect, whether
    the commissioners may require the sheriff to comply with the rule that he must turn in an old vehicle
    for each new vehicle he receives, and whether, should he refuse to do so, the commissioners may
    The Honorable Tim Curry - Page 7                      (X-0214)
    refuse to purchase such replacement       vehicles.     See 
    id. at 2,
    9. In this instance, we think the
    commissioners may do so.
    As you describe the county vehicle policy, it “requires the Sheriff (as it requires all
    department heads) to relinquish possession of a currently in-use vehicle on the same day that his
    office takes possession of its replacement, the result being that the department will never be in
    possession of more vehicles than are authorized by the currently effective county budget and the
    current vehicle allocations.” Request Letter at 10. As we have previously noted, in the legislative
    act of budget-making the commissioners court has significant freedom of action. See 
    Hooten, 863 S.W.2d at 528
    . If the commissioners       could not require the surrender of vehicles when their
    replacements were received, a department would at the end of the process have more cars than the
    court had allocated, thus rendering the budgetary power of the commissioners court illusory.
    Moreover, the general power to make contracts binding upon the county belongs to the
    commissioners court. See Tex. Att’y Gen. Op. No. DM-1 1 1 (1992) at 2. The power to purchase the
    cars is, like the rest of the court’s powers in the initial allocation of county resources, discretionary.
    Part of that discretion, we think, is a power to decide that a particular purchase may not be necessary.
    As you point out, pursuant to section 111.093(d) of the Local Government Code, a “requisition,
    contract, or allocation [may be] canceled in writing by the commissioners court or a county officer
    for a valid reason.” See TEX. LOC. GOV’T CODE ANN. § 111.093(d) (Vernon 1999). We think it
    likely that a court would find it “a valid reason” to cancel such a requisition that a particular county
    officer already had the equipment he had been allocated.
    You ask finally whether the sheriff or another elected official may set minimum bid
    specifications for equipment or vehicles to be purchased by competitive bidding. See Request Letter
    at 2, 11. He may not. As you point out, section 262.023 of the Local Government Code vests the
    duties of complying with the competitive bidding statute in the commissioners court. See TEX. LOC.
    GOVT. CODE ANN. 5 262.023 (Vernon Supp. 2000). This is consistent with the general budgeting
    and contracting authority of the court. Certainly in deciding what vehicles and equipment to
    purchase, whether by competitive bidding or by any other method, the commissioners court may
    wish to consult with the officer who will finally use such equipment. He may doubtless advise the
    commissioners     as to what, in his judgment, will best allow him to fulfill his duties. But the
    commissioners court is not obliged to agree with that officer’s views in this regard. It is for the
    court, in the reasonable exercise of its discretion, to decide what the county will purchase.
    The Honorable Tim Curry - Page 8               (JC-0214)
    SUMMARY
    The commissioners court of a county, in the exercise of its
    authority to set a county budget, may take a different view of the
    importance of certain functions than does an elected officer and may
    budget that officer less money to perform that function than he
    requests.    It may not prevent him thereby from performing his
    statutorily mandated duties. However, in determining whether the
    commissioners     court has abused its discretion in this regard, the
    district court may not substitute its view of sound public policy for
    that of the commissioners.
    While vehicles allotted by the commissioners      court to an
    elected county officer are county property rather than the property of
    the officer, once such resources have been allocated to an elected
    officer the commissioners may not substitute their judgment as to the
    deployment of those resources for the ofticer’s.
    The commissioners court having set the number of positions
    in a county office for the budget year, discretion as to how to deploy
    such manpower belongs to the officer.
    A county vehicle policy requiring a county officer to
    relinquish control of vehicles in use when he takes possession oftheir
    replacements is a budgetary safeguard within the discretion of the
    commissioners     court. Accordingly, should the officer refuse to
    comply with the policy, the court may refuse to provide the
    replacement vehicles.
    The power to set minimum bid specifications for equipment
    or vehicles to be purchased by competitive bidding resides in the
    commissioners court. The court may wish to consult with the officer
    who will ultimately use such equipment, but is not obliged to agree
    with the officer’s views in this regard.
    Attorney General of Texas
    The Honorable Tim Curry - Page 9             (X-0214)
    ANDY TAYLOR
    First Assistant Attorney General
    CLARK KENT ERVIN
    Deputy Attorney General - General Counsel
    ELIZABETH ROBINSON
    Chair, Opinion Committee
    James E. Tourtelott
    Assistant Attorney General - Opinion Committee