Untitled Texas Attorney General Opinion ( 2007 )

GREG A B B O T T
July 9,2007
The Honorable D. Matt Bingham Opinion No. GA-0553
Smith County Criminal District Attorney
Smith County Courthouse Re: Whether a county may constitutionally contract
100 North Broadway, 4th Floor under Local Government Code section 35 1.061 to
Tyler, Texas 75702 provide a nongovernmental association with a
constable office's law-enforcement services provided
the contract (1) allows the constable to retain control
and supervision of the constable's officers and (2)
does not obligate the constable to assign officers to
devote any portion of their working time to the
nongovernmental association (RQ-0559-GA)
Dear Mr. Bingham:
You ask whether, under Local Government Code section 35 1.061, a county may
constitutionally contract to provide a nongovernmental association with a constable office's law-
enforcement services if the contract (1) allows the constable to retain control and supervision of the
constable's officers and (2) does not oblige the constable to assign officers to devote any portion of
their working time to the nongovernmental association.'
I. Background
You relate that a Smith County constable proposed a contract to the commissioners court
whereby the county would provide constable law-enforcement services to a private entity, an
apartment complex, for a fee. See Request Letter, supra note 1, at 2.2 You state that the proposed
contract is based on "the ostensible authority of section 35 1.061 of the Local Government Code,"
which concerns fee-based law-enforcement services. Request Letter, supra note 1, at 1-2. From
your review of two prior attorney general opinions, JM-57 and JM-509, you advised that section
3 5 1.061 of the Local Government Code is unconstitutional, and any agreement to provide fee-based
'See Letter from Honorable D. Matt Bingham, Smith County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas, at 1 (Dec. 22,2006) (on file with the Opinion Committee, also available at http://
www.oag.state.tx.us) [hereinafter Request Letter].
'See also Exhibit A attached to Request Letter, supra note 1, at 1 4 (proposed contract) [hereinafter Exhibit A].
The Honorable D. Matt Bingham - Page 2 (GA-0553)
county law-enforcement services to a private entity would be void. See id. at 3-7.3 In Attorney
General Opinions JM-57 and JM-509, this office addressed county authority to provide law
enforcement to private entities by contract, voicing concerns about the constitutionality of such
contracts under Texas Constitution article 111, section 52 (prohibiting certain public grants to private
entities) and article 111, section 1 (prohibiting certain delegations of legislative power). See generally
Tex. Att'y Gen. Op. Nos. JM-509 (1986), JM-57 (1983); see also TEX.CONST.art. 111, $5 1, 52.
After you advised the commissioners court against the proposed contract, you learned that
it was "basically identical" to contracts used in other Texas counties. See Request Letter, supra note
1, at 2. Of particular interest, the proposed contract provides:
The Constable shall retain control and supervision of the officers
performing services under this agreement to the same extent as he
does other officers[; the nongovernmental entity] understands and
agrees that this Agreement is not intended, nor shall it be construed,
to obligate the Constable to assign officers to devote any portion of
their working time to the area. If the [nongovernmental entity] is
dissatisfied in any way with the performance of the County, the
Constable or their officers under this Agreement, [the
nongovernmental entity's] sole remedy is termination . . . .
Id. at 2-3; see also Exhibit A, supra note 2, at 2 (section 2.3). You ask whether such a provision
would obviate the constitutional concerns identified in JM-57 and JM-509. See Request Letter,
supra note 1, at 7. While in general we do not construe particular contracts, we may address broad
principles of law applicable to a public entity's contracting authority. See generally Tex. Att'y Gen.
Op. No. GA-0176 (2004) at 2 (attorney general opinions do not construe contracts, but may "address
a public entity's authority to agree to a particular contract term, if the question can be answered as
a matter of law").
11. Chapter 351, Subchapter D of the Local Government Code
To address the constitutionality of section 35 1.061, we must first examine the terms of the
Legislature's grant of authority in that section and related provisions in chapter 35 1, subchapter D
of the Local Government Code. Section 35 1.061 provides: "To protect the public interest, the
commissioners court of a county may contract with a nongovernmental association for the provision
of law enforcement services by the county on a fee basis in the geographical area represented by the
association." TEX.LOC.GOV'TCODEANN. § 351.061 (Vernon 2005).4 The fee must be paid to
the county generally rather than to any particular office or officer. See id. 5 351.062(b). The
3Seealso Exhibit B attached to Request Letter, supra note 1, at 1- 6 (legal memorandum to commissioners court
dated Sept. 22, 2006) [hereinafter Exhibit B]. You inform us that the commissioners court waived any privilege
concerning your legal memorandum. See Request Letter, supra note 1, at 2.
4The Local Government Code does not define "nongovernmental association." However, the exact meaning
of that term has no bearing on the constitutional questions you pose.
The Honorable D. Matt Bingham - Page 3 (GA-0553)
commissioners court may request the sheriff, a constable, or another county law-enforcement official
to provide the services, limited to "the geographical area for which the official was elected or
appointed." Id. 5 351.063. If the official agrees to provide the services by using deputies, the
official "retains authority to supervise the deputies who provide the services and, in an emergency,
may reassign the deputies to duties other than those to be performed under the contract." Id.
5 351.064(a). Such a deputy remains a county employee, and must "perform duties under the
contract in the same manner as if the deputy were performing the duties in the absence of the
contract." Id. 5 351.064(b)-(c).
111. Article 111, Section 52 of the Texas Constitution
Attorney General Opinion JM-57, which opined broadly that a "county may not contract with
a homeowners association to provide law-enforcement protection by county peace officers," was
issued prior to the enactment of Local Government Code section 35 1.061. Tex. Att'y Gen. Op. No.
JM-57 (1983) at 7; see id. at 1 (stating that "no statute extant . . . purports to authorize such
contracts"); see also TEX.LOC.GOV'TCODEANN.$5 35 1.061-.067 (Vernon 2005) (subchapter D);
Act of May 20, 1985, 69th Leg., R.S., ch. 219, 5 1, 1985 Tex. Gen. Laws 1082, 1082-83
(promulgating article 1581b-2, of the Revised Civil Statutes); Act of May 1, 1987,70th Leg., R.S.,
ch. 149, 5 1, secs. 351.061-.067, 1987 Tex. Gen. Laws 707, 1146-47 (recodifying article 1581-2's
provisions into the Local Government Code as chapter 35 1, subchapter D). As you note, however,
the opinion raises public policy concerns and questions the constitutionality of such contracts under
article 111, section 52(a) of the Texas Constitution. See Request Letter, supra note 1, at 4-5; Tex.
Att'y Gen. Op. No. JM-57 (1983) at 6.5
Article 111, section 52(a) prohibits the Legislature from authorizing a county or other political
subdivision "to lend its credit or to grant public money or thing of value." See TEX.CONST.art. 111,
5 52(a); see also Grimes v. Bosque County, 240 S.W.2d 51 1, 514 (Tex. Civ. App.-Waco 1951,
writ ref d n.r.e.) (holding that article 111, section 52 of the Texas Constitution prohibits a
commissioners court from making an expenditure solely to benefit an individual). The provision
prohibits "gratuitous payments to individuals, associations, or corporations." Tex. Mun. League
Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002).
A political subdivision's conveyance of a thing of value "is not 'gratuitous' if the political
subdivision receives return consideration." Id.; see also Tex. Att'y Gen. Op. No. GA-0480 (2006)
at 2 (stating that article 111, section 52(a) "is not violated if the public receives consideration for
granting a thing of value").
Moreover, article 111, section 52(a)'s purpose is "to prevent the application of public
[property] to private purposes." Byrd v. City of Dallas, 6 S.W.2d 738, 740 (Tex. 1928). But an
expenditure that incidentally benefits a private entity is not unconstitutional if it is made to
'The specific concern addressed in Attorney General Opinion JM-57 in the context of article 111, section 52(a)
was whether a fee-based contract for county law-enforcement services would adequately compensate a county for the
"county's name, special authority, and . . . 'good will."' See Tex. Att'y Gen. Op. No. JM-57 (1983) at 6. This office
issued Opinion JM-57 prior to the Texas Supreme Court's formulation of the three-part test for article 111, section 52(a).
The Honorable D. Matt Bingham - Page 4 (GA-0553)
accomplish a legitimate public purpose. See Walker v. City of Georgetown, 86 S.W.3d 249, 260
(Tex. App.-Austin 2002, pet. denied). The public-purpose exception is satisfied if (1) the
predominant purpose is to accomplish a public purpose, rather than benefit a private party; (2) the
public entity retains sufficient control to ensure accomplishment of the public purpose; and (3) the
public receives a return benefit. See Tex. Mun. League, 74 S.W.3d at 384.
State law independent of any contract establishes a county's authority to provide law-
enforcement services anywhere in the jurisdiction of its officers. See, e.g., TEX.CODEC m . PROC.
ANN.arts. 2.12(1)-(2) (Vernon Supp. 2006) (establishing sheriffs, constables, and their deputies as
peace officers); 2.13 (Vernon 2005) (imposing duty on "every peace officer to preserve the peace
within the officer's jurisdiction"); 2.17 (designating sheriff as the conservator of the peace in the
sheriffs county). Thus, it is difficult to envision a contract to provide such services to a private
entity in which the public purpose predominates. However, we cannot conclude as a matter of law
that no contract under section 351.061 could make the accomplishment of a public purpose its
predominant purpose. Chapter 35 1, subchapter D does not on its face violate article 111, section 52(a)
of the constitution.
Nevertheless, we stress that to comply with article 111, section 52(a), a commissioners court
authorizing a contract under section 35 1.061 must determine, subject to judicial review, issues of
the contract's purpose, governmental controls, and governmental benefit. See TEX.LOC. GOV'T
CODEANN. 5 35 1.061 (Vernon 2005) (granting commissioners courts authority to contractually
provide county law-enforcement services "[tlo protect the public interest"); see also Tex. Att'y Gen.
Op. Nos. GA-0480 (2006) at 2-3 (advising that sheriff has discretion to allow deputies to use county
law-enforcement vehicles during off-duty employment consistently with article 111, section 52(a) of
the constitution, subject to judicial review), GA-0088 (2003) at 5-6 (determining that article 111,
section 52(a) requires a commissioners court to determine in good faith that a grant serves a public
purpose and to place sufficient controls on the transaction so that the purpose is carried out).
IV. Article 111, Section 1 of the Texas Constitution
In Attorney General Opinion JM-509, this office determined that (1) article 1581b-2 of the
Revised Civil Statutes-the predecessor of chapter 35 1, subchapter D-delegated legislative
discretion to a private entity to control the deployment of law-enforcement resources and (2) such
a delegation violated the nondelegation principles expressed in article 111, section 1 of the Texas
Constitution. See Tex. Att'y Gen. Op. No. JM-509 (1986) at 2.6 The Supreme Court of Texas has
explained that under article 111, section 1, the Legislature may delegate authority to a private entity
only if there is protection against the entity's arbitrary exercise of power. See Proctor v. Andrews,
972 S.W.2d 729, 735 (Tex. 1998). The court has distilled eight factors that are pertinent to the
6Attorney General Opinion JM-509 also concluded that article 158lb-2 was a delegation in violation of the
separation of powers provision in article 11, section 1 of the Texas Constitution. See Tex. Att'y Gen. Op. No. JM-509
(1986) at 4. The Supreme Court of Texas has since explained, however, that the constitutional prohibition against
delegating governmental authority to a private entity does not derive from article 11, section 1 of the Texas Constitution.
See Proctor v. Andrews, 972 S.W.2d 729,732-33 (Tex. 1998). Rather, the court instructed that a purported delegation
of governmental authority to a private entity should be analyzed under article 111, section 1 of the constitution. See id.
at 733.
The Honorable D. Matt Bingham - Page 5 (GA-0553)
constitutionality of a delegation to a private entity, including the availability of meaningful review
of the private delegate's decisions, the potential for conflict between the delegate's personal interest
and its public function, and the existence of sufficient legislative standards to guide the private
delegate. See id.;see also Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454,
472 (Tex. 1997).
But before it is necessary to examine a statute under Boll Weevil standards, it first must be
determined whether the statute in fact delegates power to a private entity. See Tex. Workers ' Comp.
Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 654 (Tex. 2004). In JM-509 this office
construed article 1581b-2 of the Revised Civil Statutes as necessarily allowing "aprivate association
to control the sheriffs discretion to deploy his deputies." Tex. Att'y Gen. Op. No. JM-509 (1986)
at 2. The opinion further explained:
Under a contract authorized by article 1581b-2 . . . 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 deployment elsewhere. The statute is not a legislative
limit on the sheriffs discretion, but a legislative attempt to authorize
a private entity to control the sheriffs discretion. . . . No statutory
controls are included to insure that contracts for law enforcement
services will carry out the stated purpose of protecting the public
interest.
Id. at 4. If chapter 351, subchapter D of the Local Government Code is necessarily construed as
delegating unbridled authority to a private entity to control the law-enforcement official's discretion
to deploy deputies, then undoubtedly the statute would not satisfy the constitutional standards of
Boll Weevil. See Boll Weevil, 952 S.W.2d at 472. But when possible, courts "interpret legislative
enactments in a manner to avoid constitutional infirmities." Barshop v. Medina County
Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996). A court would likely
choose a construction of chapter 3 5 1, subchapter D that renders it constitutional and determine that
the statutes do not authorize a county to cede its law-enforcement discretion to deploy deputies to
a private entity.
We conclude that chapter 35 1, subchapter D of the Local Government Code does not on its
face violate either article 111, section 52(a) or article 111, section 1 of the Texas Constitution. But a
contract under the subchapter must comport with the limitations in both constitutional provisions.
A contract provision that retains control and supervision of officers in the constable and that imposes
no obligation on officers to devote their working time on a particular area does not appear to be
inconsistent with the constitutional principles discussed above. See Request Letter, supra note 1,
at 2-3; see also Exhibit A, supra note 2, at 2 (section 2.3). We reiterate, however, that we do not
purport to construe the proposed contract. Moreover, we caution that because a contract is construed
as a whole, the mere inclusion of such a provision in a contract under 351.061 of the Local
Government Code is not a guarantee of the contract's constitutionality. Cf Coker v. Coker, 650
S.W.2d 391, 393 (Tex. 1983) (holding that contracts are construed as a whole, and no single
contractual provision will be given controlling effect).
The Honorable D. Matt Bingham - Page 6 (GA-0553)
S U M M A R Y
Under chapter 35 1, subchapter D of the Local Government
Code, a county may contract to provide law-enforcement services to
a nongovernmental association on a fee basis, provided the contract
does not violate article 111, section 52(a) or article 111, section 1
of the Texas Constitution. Under article 111, section 52(a) the
commissioners court must determine, in the first instance, that (1) the
contract has as its predominant purpose the accomplishment of a
public, rather than a private, purpose; (2) the public entity retains
sufficient control to ensure accomplishment of the public purpose;
and (3) the public receives a return benefit.
To comply with article 111, section 1 of the constitution, a
contract must not cede county law-enforcement discretion to the
nongovernmental association.
Attorney General Opinions JM-57 (1983) and JM-509 (1986)
are overruled to the extent that they are inconsistent with this opinion.
Very truly yours,
Attorney era1 of Texas
KENT C. SULLIVAN
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee