Untitled Texas Attorney General Opinion

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