Untitled Texas Attorney General Opinion ( 1986 )

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
p. 2340
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
p. 2341