Can a county use federal Justice Assistance Grant money to pay sheriff or constable overtime?

TX AG Opinion GA-0470: Can JAG grant funds pay a sheriff or constable overtime?

Plain-English summary

Maverick County Auditor Carlos A. Pereda, Jr. asked the Attorney General whether a county taking part in Operation Linebacker, a Texas border-security initiative funded in part by federal Justice Assistance Grant (JAG) money, could use those grant funds to pay its sheriff or a constable extra compensation such as overtime on top of the salary already set in the county budget. He also asked whether a constable could be paid from JAG funds for work done as a deputy sheriff.

The JAG program is a federal grant, administered in Texas by the Governor's Office, Criminal Justice Division, that supports a range of crime-control and law-enforcement programs. The Governor's Office has rules in the Texas Administrative Code governing how grant money may be spent on personnel. One subsection, section 3.75(a)(3), prohibits using grant funds to pay "any portion of the salary of, or any other compensation for, an elected or appointed government official." Another, section 3.75(c) (amended in mid-2006), allows grant funds to be used for overtime if the Governor's Office approves, the payment fits the grantee's policy, and it is not otherwise prohibited by law.

On the surface the overtime subsection might seem to let a county pay a sheriff or constable overtime, but the official-compensation ban points the other way. The opinion first cleared away the county-budget argument: JAG funds are not subject to county budgeting requirements, so chapter 152 of the Local Government Code did not decide the question. Then, because the Governor's Office had not yet interpreted how the two subsections fit together, the Attorney General read the rule like a statute, harmonizing the provisions so each has effect. The harmony: subsection (a)(3) governs pay for elected or appointed officials, and subsection (c) governs overtime for grantee employees. Read that way, JAG funds may not be used to compensate sheriffs and constables, who are elected officials.

The last question had a different answer. The Attorney General had recently held (in GA-0402) that a person may serve as both an elected constable and a deputy sheriff. Building on that, this opinion concluded that a constable who also works as a deputy sheriff may be paid, over and above the constable's salary, for the deputy-sheriff work, including overtime, so long as the county's annual budget actually appropriates compensation (and overtime) for the sheriff's deputies. That payment would come from the county budget, not from JAG funds for the constable's elected office.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Governor's Office grant rules in title 1 of the Texas Administrative Code, and the statutes cited here, may have changed since 2006, and border-security grant programs have evolved considerably. Anyone handling current grant-funded law-enforcement pay should check the present rules rather than relying on this opinion.

Who this opinion affected (as of 2006)

County auditors and commissioners courts: The opinion told them JAG funds could not be used to pay a sheriff or constable, including overtime, and that JAG funds sat outside the county budgeting process.

Sheriffs and constables on the border: The opinion explained that as elected officials they could not draw extra compensation from JAG grant money, even for Operation Linebacker work.

Constables also serving as deputy sheriffs: The opinion clarified that they could be paid separately for the deputy-sheriff work, including overtime, if the county budget provided for deputy overtime.

Common questions

Can a county pay its sheriff overtime out of JAG grant funds?
No. The opinion concluded the Governor's Office rule bars using grant funds to pay any compensation to an elected official, and a sheriff is an elected official, so JAG money cannot be used to pay the sheriff overtime.

Doesn't the rule allow overtime from grant funds?
For grantee employees, yes, but the opinion harmonized the two subsections so the overtime allowance applies to employees while the official-compensation ban applies to elected or appointed officials.

Do county budget rules affect this?
No. The opinion held JAG funds are not subject to county budgeting requirements, so chapter 152 of the Local Government Code did not resolve the question; the Governor's Office grant rule did.

Can a constable be paid for also working as a deputy sheriff?
Yes. The opinion concluded a constable who serves as a deputy sheriff may be paid additional compensation, including overtime, for the deputy work if the county budget appropriates overtime for deputy sheriffs.

Background and statutory framework

A county auditor may request an Attorney General opinion on a question affecting the public interest or the auditor's official duties after first submitting it to the county or district attorney (Tex. Gov't Code Ann. § 402.042(a) (Vernon 2005); id. § 41.007 (Vernon 2004)). The Governor's Office, Criminal Justice Division administers the state's JAG program under rules in title 1, chapter 3 of the Texas Administrative Code. Section 3.75(a)(3) bars using grant funds to pay any compensation to an elected or appointed government official, while section 3.75(c) permits overtime under specified conditions (1 Tex. Admin. Code §§ 3.75(a)(3), 3.75(c) (2006); 31 Tex. Reg. 3453, 3455 (2006); 31 Tex. Reg. 4855, 4856 (2006)).

JAG funds are not subject to county budgeting requirements, so chapter 152 of the Local Government Code does not control (Tex. Loc. Gov't Code Ann. ch. 152, § 152.013(a) (Vernon 1999 & Supp. 2006); Tex. Att'y Gen. Op. No. DM-357 (1995)). Because the Governor's Office had not interpreted the two subsections, the opinion construed the rule like a statute, harmonizing the provisions to give each effect (Phillips Petroleum Co. v. Tex. Comm'n on Envtl. Quality, 121 S.W.3d 502, 507 (Tex. App.-Austin 2003, no pet.); BP Chems., Inc. v. AEP Tex. Cent. Co., 198 S.W.3d 449, 455 (Tex. App.-Corpus Christi 2006, no pet.); In re Univ. of Tex. Health Ctr., 198 S.W.3d 392, 397 (Tex. App.-Tyler 2006, no pet.); Garcia v. State, 669 S.W.2d 169, 171 (Tex. App.-Dallas 1984, pet. ref'd); State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston [1st Dist.] 1963), aff'd, 376 S.W.2d 341 (Tex. 1964); Tex. Gov't Code Ann. §§ 311.025(b), 311.026(a) (Vernon 2005)). Subsection (a)(3) thus governs elected and appointed officials, so JAG funds cannot pay sheriffs and constables.

A constable may also serve as a deputy sheriff (Tex. Att'y Gen. Op. No. GA-0402 (2006); Tex. Const. art. XVI, § 40), and a sheriff may select approved deputies (Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, writ denied); Comm'rs Court of Shelby County v. Ross, 809 S.W.2d 754, 756 (Tex. App.-Tyler 1991, no writ); Tex. Loc. Gov't Code Ann. § 151.003 (Vernon 1999)). So a constable-deputy may be paid for the deputy work, including overtime, if the county budget appropriates deputy overtime.

Citations

Statutes and rules:

• Tex. Gov't Code Ann. §§ 402.042(a) (Vernon 2005), 41.007 (Vernon 2004), 311.025(b), 311.026(a) (Vernon 2005)
• Tex. Loc. Gov't Code Ann. ch. 152, §§ 152.013(a), 151.003 (Vernon 1999 & Supp. 2006)
• Tex. Const. art. XVI, § 40
• 1 Tex. Admin. Code §§ 3.75(a)(3), 3.75(c) (2006); 31 Tex. Reg. 3453, 3455 (2006); 31 Tex. Reg. 4855, 4856 (2006)

Cases:

• Phillips Petroleum Co. v. Tex. Comm'n on Envtl. Quality, 121 S.W.3d 502, 507 (Tex. App.-Austin 2003, no pet.)
• BP Chems., Inc. v. AEP Tex. Cent. Co., 198 S.W.3d 449, 455 (Tex. App.-Corpus Christi 2006, no pet.)
• In re Univ. of Tex. Health Ctr., 198 S.W.3d 392, 397 (Tex. App.-Tyler 2006, no pet.)
• Garcia v. State, 669 S.W.2d 169, 171 (Tex. App.-Dallas 1984, pet. ref'd)
• State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston [1st Dist.] 1963), aff'd, 376 S.W.2d 341 (Tex. 1964)
• Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, writ denied)
• Comm'rs Court of Shelby County v. Ross, 809 S.W.2d 754, 756 (Tex. App.-Tyler 1991, no writ)

Prior opinions:

• Tex. Att'y Gen. Op. Nos. DM-357 (1995), GA-0402 (2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0470
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0470.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

October 23, 2006

Mr. Carlos A. Pereda, Jr.
Maverick County Auditor
Post Office Box 1246
Eagle Pass, Texas 78853-1246

Opinion No. GA-0470

Re: Whether a county participating in Operation Linebacker may use Justice Assistance Grant funds to pay its sheriff or a constable compensation, such as overtime, in addition to the salary appropriated in the existing county budget (RQ-0444-GA)

Dear Mr. Pereda:

You ask whether a county participating in Operation Linebacker may use Justice Assistance Grant ("JAG") funds to pay its sheriff or a constable compensation, such as overtime, in addition to the salary appropriated in the existing county budget. You also ask whether a county may compensate the constable from JAG funds for services performed as a deputy sheriff. See Request Letter, supra note 1, at 1.

The Federal Edward Byrne Memorial JAG Program, administered by the United States Department of Justice's Office of Justice Programs, Bureau of Justice Assistance, "allows states and local governments to support a broad range of activities to prevent and control crime and to improve the criminal justice system." BUREAU OF JUSTICE ASSISTANCE, JUSTICE ASSISTANCE GRANT (JAG) PROGRAM, OVERVIEW (last visited Oct. 13, 2006). JAG funds are allocated to states to be used to further certain types of programs, including law enforcement programs. See id. In each state, the governor or other chief executive officer designates a state agency to administer the funds. BUREAU OF JUSTICE ASSISTANCE, EDWARD BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT (JAG) PROGRAM, FY 2006 STATE SOLICITATION 2 (last visited Oct. 13, 2006).

The Texas Governor's Office, Criminal Justice Division (the "Governor's Office") administers the state's JAG program. See OFFICE OF THE GOVERNOR OF TEXAS, CRIMINAL JUSTICE DIVISION, STATE FUNDS ADMINISTERED BY THE GOVERNOR'S CRIMINAL JUSTICE DIVISION (last visited Oct. 13, 2006). The Governor's Office awarded JAG funds to Operation Linebacker, an initiative "conceived by the Texas Border Sheriffs Coalition as a means to integrate law enforcement resources along the border to increase both public safety and national security between points of entry." OFFICE OF THE GOVERNOR OF TEXAS, BORDER SECURITY PLAN FOR TEXAS (last visited Oct. 13, 2006). Operation Linebacker's "[k]ey aspects . . . include increased patrols and the support of the local community to enhance border security." Id.

The Governor's Office has adopted rules regulating the various grant programs it administers, including the JAG program. See 1 TEX. ADMIN. CODE ch. 3 (2006) (Office of the Governor, Criminal Justice Division, Personnel). Title 1, section 3.75 of the Texas Administrative Code pertains to the use of grant funds to pay personnel costs. See id. § 3.75. Subsection (a)(3) prohibits the use of grant funds to pay "any portion of the salary of, or any other compensation for, an elected or appointed government official." Id. § 3.75(a)(3). Subsection (c), as amended effective June 22, 2006, authorizes the use of grant funds to pay overtime if three conditions are satisfied: (1) the grantee obtains the approval of the Governor's office; (2) payment of overtime is consistent with the grantee's policy; and (3) the use of the particular grant funds for overtime payments is not "otherwise prohibited by law." Id. § 3.75(c); see 31 Tex. Reg. 3453, 3455 (2006), adopted 31 Tex. Reg. 4855, 4856 (2006) (codified at 1 TEX. ADMIN. CODE § 3.75(c)); see also UNITED STATES DEP'T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, FINANCIAL GUIDE 2005 ch. 7 (last visited Oct. 13, 2006) (allowing grant funds generally to be used to pay overtime to the extent it is consistent with state policies and has been approved by the state).

Although section 3.75(c) may appear to permit the payment of overtime to a sheriff or constable, section 3.75(a)(3) prohibits the use of JAG funds to compensate an elected government official. See 1 TEX. ADMIN. CODE § 3.75(a)(3) (2006) (Office of the Governor, Criminal Justice Division, Personnel). You ask which section applies, and you additionally suggest that county budgeting requirements pertaining to elected officials' compensation lead to the conclusion that section 3.75(a)(3) prevails. You state:

[U]nder Local Government Code section 152.013(a) the Commissioners Court sets the salary and compensation for the elected official during the budget process and any increase must be properly published before it can be voted on. Once the salary is set, it may not be increased or decreased until the following budget process.

Chapter 152, Local Government Code, provides for budgeting county employees' compensation. See TEX. LOC. GOV'T CODE ANN. ch. 152 (Vernon 1999 & Supp. 2006). JAG funds are not subject to county budgeting requirements. Cf. Tex. Att'y Gen. Op. No. DM-357 (1995) at 6 (concluding that the county attorney's hot-check fund is "wholly outside of the county budgeting process").

Accordingly, JAG funds may be used as title 1, section 3.75 of the Texas Administrative Code permits. Subsection (a)(3) states that the Governor's Office will not "pay any portion of the salary of, or any other compensation for, an elected or appointed government official." 1 TEX. ADMIN. CODE § 3.75(a)(3) (2006) (Office of the Governor, Criminal Justice Division, Personnel). Under subsection (c), on the other hand, a grantee may use grant funds to pay overtime if three conditions are satisfied: (1) the grantee obtains the approval of the Governor's office; (2) payment of overtime is consistent with the grantee's policy; and (3) the use of the particular grant funds for overtime payments is not "otherwise prohibited by law." Id. § 3.75(c); see 31 Tex. Reg. 3453, 3455 (2006), adopted 31 Tex. Reg. 4855, 4856 (2006) (codified at 1 TEX. ADMIN. CODE § 3.75(c)). To date, the Governor's Office has not construed subsection (c) vis-a-vis subsection (a). Cf. Phillips Petroleum Co. v. Tex. Comm'n on Envtl. Quality, 121 S.W.3d 502, 507 (Tex. App.-Austin 2003, no pet.) (stating that an administrative agency has the power to interpret its own rules, which interpretation is controlling unless it is plainly erroneous).

Without the benefit of a construction by the Governor's Office, we "construe the text of an administrative rule under the same principles as if it were a statute." BP Chems., Inc. v. AEP Tex. Cent. Co., 198 S.W.3d 449, 455 (Tex. App.-Corpus Christi 2006, no pet.) (citing Phillips Petroleum Co., 121 S.W.3d at 507). A court will harmonize statutes to give effect to each unless the statutes are irreconcilable. See TEX. GOV'T CODE ANN. §§ 311.025(b), .026(a) (Vernon 2005); see also In re Univ. of Tex. Health Ctr., 198 S.W.3d 392, 397 (Tex. App.-Tyler 2006, no pet.) (stating that two rules of civil procedure governing the same subject matter should be harmonized so that both may be effectuated). Mere difference does not constitute an irreconcilable conflict. See Garcia v. State, 669 S.W.2d 169, 171 (Tex. App.-Dallas 1984, pet. ref'd). Irreconcilable conflict involves a direct conflict such that a person cannot comply with both provisions at the same time. See Tex. Att'y Gen. Op. No. GA-0411 (2006) at 2; see also State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston [1st Dist.] 1963), aff'd, 376 S.W.2d 341 (Tex. 1964) (stating that statutes cannot be harmonized "only when" they are "directly and irreconcilably in conflict").

Both subsections (a)(3) and (c) apply to the use of JAG funds. Subsection (a)(3) prohibits the use of JAG funds to compensate an elected or appointed government official, while subsection (c) permits the use of JAG funds to pay overtime in certain circumstances. Compare 1 TEX. ADMIN. CODE § 3.75(a)(3) (2006) (Office of the Governor, Criminal Justice Division, Personnel), with id. § 3.75(c). They can be harmonized by construing subsection (a)(3) to apply to the use of JAG funds for elected or appointed officials and subsection (c) to apply to the use of such funds for employees. Thus, JAG funds may not be used to compensate sheriffs and constables.

You finally ask whether a constable who works as a deputy sheriff may be paid on an hourly basis for work performed as a deputy sheriff. See Request Letter, supra note 1, at 1. This office recently determined in Attorney General Opinion GA-0402 that neither article XVI, section 40 of the Texas Constitution, which prohibits a person from simultaneously holding multiple civil offices of emolument, nor the common-law doctrine of incompatibility precludes an elected constable from simultaneously serving as a deputy sheriff. See Tex. Att'y Gen. Op. No. GA-0402 (2006) at 2; see also TEX. CONST. art. XVI, § 40. But Attorney General Opinion GA-0402 does not consider whether a constable who simultaneously serves as a deputy sheriff may be paid for service as a deputy sheriff, in addition to receiving a salary for service as constable. See generally Tex. Att'y Gen. Op. No. GA-0402 (2006).

In our opinion, a constable working as a deputy sheriff may be compensated, over and above the compensation the constable receives as a constable, for work as a deputy sheriff. A sheriff is free to select persons to fill deputy positions that have been approved by the commissioners court. See Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, writ denied); Comm'rs Court of Shelby County v. Ross, 809 S.W.2d 754, 756 (Tex. App.-Tyler 1991, no writ); see also TEX. LOC. GOV'T CODE ANN. § 151.003 (Vernon 1999) (directing that after a commissioners court has approved an officer's request for employees, the officer may appoint them). So long as the county's annual budget appropriates compensation, including overtime compensation, for the sheriff's deputies, a deputy sheriff, including a deputy sheriff who is also a constable, may be compensated for serving as a deputy sheriff.

SUMMARY

In accordance with title 1, section 3.75(a)(3) of the Texas Administrative Code, a county may not use Justice Assistance Grant funds to compensate its sheriff or constable for overtime.

A constable may be paid an additional amount, including overtime, for serving as a deputy sheriff if the county budget provides overtime compensation for deputy sheriffs.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from Carlos A. Pereda, Jr., Maverick County Auditor, to Honorable Greg Abbott, Attorney General of Texas (Apr. 13, 2006) (on file with the Opinion Committee) [hereinafter Request Letter]; see also Letter from Honorable J. Steve Houston, Brewster County Attorney, to Honorable Greg Abbott, Attorney General of Texas (Feb. 14, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us); Letter from Carlos A. Pereda, Jr., Maverick County Auditor, to Honorable Greg Abbott, Attorney General of Texas (Jan. 31, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter January Pereda Letter]. A county auditor is authorized to request the attorney general's opinion "on a question affecting the public interest or concerning the official duties of the requesting person" if the auditor has first submitted the question to the county or district attorney and disagrees with the attorney's response. See TEX. GOV'T CODE ANN. § 402.042(a) (Vernon 2005); see id. § 41.007 (Vernon 2004) (requiring a "district or county attorney, on request, [to] give to a county or precinct official of his district or county a written opinion or written advice relating to" that official's duties). A county auditor's opinion request should be submitted to the county or district attorney in accordance with Government Code section 41.007. If the county or district attorney fails or refuses to answer the auditor's request, or if the county auditor disagrees with the county or district attorney's opinion or believes that it conflicts with attorney general opinions, we will accept an opinion request directly from the county auditor.

2. January Pereda Letter, supra note 1, at 1.