Can a Texas deputy sheriff drive a county patrol car for off-duty security jobs?

TX AG Opinion GA-0480: Can a deputy use a county patrol car for off-duty security work?

Plain-English summary

Hunt County Attorney Joel Littlefield told the Attorney General that county deputy sheriffs had been using county patrol vehicles while working off-duty security jobs, without reimbursing the county. He asked four questions: whether a deputy may do this, whether a sheriff may allow it, who would set any reimbursement amount, and whether the commissioners court can stop the practice.

The starting point is article III, section 52(a) of the Texas Constitution, which bars a county from granting public money or a thing of value to a private party. That ban is not violated, though, if the public gets consideration, or if a grant that incidentally benefits a private party is made for a legitimate public purpose. To fit the public-purpose exception, three things must be true: the grant's predominant purpose must be public rather than private; there must be public control over the asset to make sure the public purpose is achieved; and the public must receive a return benefit.

Applying that to patrol cars, the opinion noted that a sheriff must conserve the peace and has discretion over how to do it, and the patrol vehicles are tools for that job. So a sheriff may authorize deputies to use county patrol vehicles during off-duty security employment without reimbursement, but only if the predominant purpose of that use is to conserve the peace in the county, the sheriff keeps control over the vehicles so that the peace is actually conserved, and the county actually receives that public benefit. Use that is really just private gets no pass.

On the reimbursement question, the opinion rejected the premise. A sheriff has no authority to bind the county by contract unless a statute allows it, and no statute lets a sheriff lease county vehicles to deputies for private use. The commissioners court, though it runs county business, also needs a statutory basis to act, and the statute that lets a commissioners court sell or lease county property (chapter 263) does not authorize leasing county vehicles to deputies for private use. So neither the sheriff nor the commissioners court can set a reimbursement rate, because the county cannot lease the vehicles for private use at all.

Finally, on whether the commissioners court can prevent the off-duty use, the opinion explained that an elected officer has a sphere of authority other officers cannot invade. A commissioners court controls the budget and can decide what resources to give the sheriff, but it cannot micro-manage how the sheriff uses them. The sheriff, not the commissioners court, is responsible for making sure deputies use patrol vehicles only for lawful purposes.

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 statutes governing county property, sheriffs, and commissioners courts have been amended since 2006. Anyone evaluating a current patrol-vehicle policy should check the present law rather than relying on this opinion.

Who this opinion affected (as of 2006)

Sheriffs: The opinion told sheriffs they could authorize off-duty patrol-vehicle use without reimbursement only when it predominantly served the public purpose of conserving the peace, with the sheriff keeping control and the county getting the benefit, and that the sheriff bears responsibility for ensuring lawful use.

Commissioners courts: The opinion explained that a commissioners court cannot lease county vehicles to deputies for private use or set a reimbursement rate, and cannot micro-manage the sheriff's use of resources, though it controls the budget that supplies them.

Deputy sheriffs: The opinion meant that using a county patrol car for off-duty security work is permissible only within the public-purpose framework the sheriff sets, not as a private arrangement paid for by reimbursement.

Common questions

Can a deputy use a county patrol car for an off-duty security job for free?
Only if the sheriff has authorized it and the use predominantly serves a public purpose, conserving the peace in the county, with the sheriff retaining control and the county receiving the benefit. Purely private use is barred by the constitution.

Can the county just charge the deputy a fee to use the car privately?
No. The opinion found no statute authorizing the county, through either the sheriff or the commissioners court, to lease its vehicles to deputies for private use, so neither can set a reimbursement rate.

Who decides the reimbursement amount, the sheriff or the commissioners court?
Neither, because the county cannot lease the vehicles for private use in the first place. The opinion said it therefore did not need to answer who would set the amount.

Can the commissioners court ban deputies from using patrol cars off duty?
The opinion held that the sheriff, not the commissioners court, is responsible for ensuring deputies use patrol vehicles only for lawful purposes. The commissioners court controls the budget and what resources the sheriff gets, but it cannot micro-manage how the sheriff uses them.

Background and statutory framework

Article III, section 52(a) bars a county from lending its credit or granting public money or a thing of value to a private party (Tex. Const. art. III, § 52(a)). The provision is not violated where the public receives consideration (Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002)) or where a grant that incidentally benefits a private party serves a legitimate public purpose, satisfying the three-part public-purpose test of predominant public purpose, public control, and return benefit (Walker v. City of Georgetown, 86 S.W.3d 249, 260 (Tex. App.-Austin 2002, pet. denied); Tex. Mun. League, 74 S.W.3d at 384).

A sheriff must conserve the peace (Tex. Code Crim. Proc. Ann. art. 2.17 (Vernon 2005)) and has discretion in how to do it (Weber v. City of Sachse, 591 S.W.2d 563, 567 (Tex. Civ. App.-Dallas 1979, writ dism'd)). Patrol vehicles allocated by the commissioners court are tools for the sheriff's law enforcement duties, and the sheriff has discretion over their use (Tex. Att'y Gen. Op. No. GA-0158 (2004) at 4). The sheriff is bound by the constitution and laws (Tex. Loc. Gov't Code Ann. § 85.001(c) (Vernon Supp. 2006)), and courts defer to the governing body's discretion (Barrington v. Cokinos, 338 S.W.2d 133, 142 (Tex. 1960)).

A sheriff cannot bind the county by contract absent statutory authority (Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)), and a commissioners court, though it has jurisdiction over county business (Tex. Const. art. V, § 18(b)), must ground any action in the constitution or statutes (Guynes v. Galveston County, 861 S.W.2d 861, 863 (Tex. 1993); Tex. Att'y Gen. Op. No. GA-0085 (2003) at 2). The property-sale-and-lease statute does not authorize leasing county vehicles to deputies for private use (Tex. Loc. Gov't Code Ann. §§ 263.001-.251 (Vernon 2005)). An elected officer occupies a sphere of authority others cannot usurp (Renken v. Harris County, 808 S.W.2d 222, 226 (Tex. App.-Houston [14th Dist.] 1991, no writ); Tex. Att'y Gen. Op. No. JC-0214 (2000) at 3), and a sheriff must conduct the office lawfully (Tarrant County v. Smith, 81 S.W.2d 537, 538 (Tex. Civ. App.-Fort Worth 1935, writ ref'd)). The opinion also noted statutory insurance requirements for officers operating subdivision-controlled vehicles, including while off duty (Tex. Gov't Code Ann. § 612.005(b) (Vernon 2004)).

Citations

Statutes and constitutional provisions:

• Tex. Const. art. III, § 52(a); art. V, § 18(b)
• Tex. Code Crim. Proc. Ann. art. 2.17 (Vernon 2005)
• Tex. Loc. Gov't Code Ann. §§ 85.001(c) (Vernon Supp. 2006), 263.001-.251 (Vernon 2005)
• Tex. Gov't Code Ann. § 612.005(b) (Vernon 2004)

Cases:

• Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002)
• Walker v. City of Georgetown, 86 S.W.3d 249, 260 (Tex. App.-Austin 2002, pet. denied)
• Weber v. City of Sachse, 591 S.W.2d 563, 567 (Tex. Civ. App.-Dallas 1979, writ dism'd)
• Barrington v. Cokinos, 338 S.W.2d 133, 142 (Tex. 1960)
• Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)
• Guynes v. Galveston County, 861 S.W.2d 861, 863 (Tex. 1993)
• Renken v. Harris County, 808 S.W.2d 222, 226 (Tex. App.-Houston [14th Dist.] 1991, no writ)
• Tarrant County v. Smith, 81 S.W.2d 537, 538 (Tex. Civ. App.-Fort Worth 1935, writ ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0480
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0480.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 31, 2006

The Honorable Joel D. Littlefield
Hunt County Attorney
Post Office Box 1097
Greenville, Texas 75403-1097

Opinion No. GA-0480

Re: Whether a deputy sheriff may use a county patrol vehicle to perform off-duty security work (RQ-0482-GA)

Dear Mr. Littlefield:

You inform us that Hunt County "deputy sheriffs working off duty security used county patrol vehicles, in the course and scope of that off duty employment, without reimbursing the county for the use of the county patrol vehicle." Consequently, you ask four questions about the authority of a deputy sheriff to use the county's vehicle in this manner. Request Letter, supra note 1, at 1. Specifically, you ask:

(1) May a deputy sheriff who is engaged in working off duty (security) employment, use a county patrol vehicle in the course and scope of that off duty (security) employment, without reimbursing the county for the use of the county patrol vehicle?

(2) May a Sheriff allow a deputy sheriff, who is engaged in working off duty (security) employment, to use a county patrol vehicle in the course and scope of that off duty (security) employment, without providing reimbursement to the county for the use of the county patrol vehicle?

(3) Should reimbursement of the county vehicle be required for its use in the above, which individual or agency sets the amount to be reimbursed to the county for its use, the sheriff or the commissioner's court?

(4) May the Commissioner's Court prevent patrol vehicles, which were assigned to the sheriff's office, from being used in off duty (security) employment by deputy sheriffs?

Id. at 1-2. Because your first two questions raise related questions of law, we treat them together.

Article III, section 52(a) of the Texas Constitution provides that the "[l]egislature shall have no power to authorize any county . . . to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever." Tex. Const. art. III, § 52(a). This provision is not violated if the public receives consideration for granting a thing of value. Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002). This provision, moreover, does not prohibit a grant of a public thing of value that incidentally benefits a private party if the grant is made to accomplish a legitimate public purpose. Walker v. City of Georgetown, 86 S.W.3d 249, 260 (Tex. App.-Austin 2002, pet. denied). To satisfy this public purpose exception, the grant's predominant purpose must be to accomplish a public purpose, not to benefit private parties; there must be public control over the assets to ensure that the public purpose is accomplished and to protect the public's investment; and the public must receive a return benefit. Tex. Mun. League Intergov'tl Risk Pool, 74 S.W.3d at 384.

A sheriff is required to conserve the peace within the sheriff's county. See Tex. Code Crim. Proc. Ann. art. 2.17 (Vernon 2005). Because no statute prescribes the manner in which a sheriff is to conserve the peace, it is for the sheriff, in the exercise of reasonable discretion, to determine how best to accomplish this duty. Weber v. City of Sachse, 591 S.W.2d 563, 567 (Tex. Civ. App.-Dallas 1979, writ dism'd). The patrol vehicles allocated to a sheriff by a commissioners court are tools to be used by the sheriff to perform the sheriff's law enforcement duties. See Tex. Att'y Gen. Op. No. GA-0158 (2004) at 4 ("The sheriff's vehicles belong to the county, which acts through its commissioners court."). By extension, then, a sheriff has discretion over the vehicles allocated to the sheriff, including the discretion to determine how the sheriff's deputies are to use those vehicles in providing law enforcement within the county.

But a sheriff is bound by the constitution and other laws of this state. See Tex. Loc. Gov't Code Ann. § 85.001(c) (Vernon Supp. 2006) (requiring sheriff to take official oath). Texas Constitution article III, section 52(a), and the case law interpreting that article, circumscribes a sheriff's discretion over county patrol vehicles, but it leaves to the sheriff the authority to permit the use of the county's patrol vehicles in a manner that satisfies the public purpose doctrine, subject to judicial review. See Barrington v. Cokinos, 338 S.W.2d 133, 142 (Tex. 1960) ("[A] court has no right to substitute its judgment and discretion for the judgment and discretion of the governing body upon whom the law visits the primary power and duty to act."). Therefore, in answer to your first two questions, the sheriff may authorize deputy sheriffs to use county patrol vehicles during off-duty security employment without the deputies reimbursing the county for that use only if the predominant purpose of the off-duty use is to conserve the peace within the county, the sheriff retains control over the vehicles in a manner that ensures the peace will be conserved, and the county actually receives this public benefit.

You next ask: "Should reimbursement of the county vehicle be required for its use in the above, which individual or agency sets the amount to be reimbursed to the county for its use, the sheriff or the commissioners court?" Request Letter, supra note 1, at 2. This question presupposes that, for circumstances in which the sheriff determines that use of the county patrol vehicle does not accomplish a legitimate public purpose, a deputy may use the vehicle as long as the county is reimbursed for such use. This presupposition is incorrect.

It is well established that a sheriff has no authority to enter into contracts binding the county except where specifically authorized by statute. Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). We have found no statute that authorizes a sheriff to bind the county in a lease of its vehicles to deputy sheriffs for the deputies to use in a private capacity. Therefore, the sheriff may not set the amount of money that would reimburse the county for the use of its vehicles because that would be a contract term. And a commissioners court, although it is the entity with jurisdiction over all county business, Tex. Const. art. V, § 18(b), and "although [it] may exercise broad discretion in conducting county business, the legal basis for any action taken must be grounded in the constitution or statutes." Guynes v. Galveston County, 861 S.W.2d 861, 863 (Tex. 1993) (citation omitted). Consequently, a commissioners court's authority to contract on behalf of the county is limited to that authority conferred either expressly or by necessary implication by the constitution and the laws of this state. Tex. Att'y Gen. Op. No. GA-0085 (2003) at 2. As it is with a sheriff, we can find no statute that expressly authorizes a commissioners court to lease the county's personal property in this way. Indeed, Local Government Code chapter 263, which specifically authorizes a commissioners court to sell or lease county property under certain conditions, makes no provision for the lease of county personal property in the manner described here. See Tex. Loc. Gov't Code Ann. §§ 263.001-.251 (Vernon 2005). Thus, a commissioners court may not lease the county's vehicles to the county's deputy sheriffs to use in a private capacity. Cf. Tex. Att'y Gen. Op. No. GA-0085 (2003) at 4-5 (determining that a commissioners court could sell county-owned dirt provided that the dirt fell under a Local Government Code chapter 263 provision authorizing a county to sell surplus property). Accordingly, we need not answer your question as to who determines reimbursement amounts, because the county may not lease its vehicles for private use in the first place.

You last ask: "May the Commissioner's Court prevent patrol vehicles, which were assigned to the sheriff's office, from being used in off duty (security) employment by deputy sheriffs?" Request Letter, supra note 1, at 2.

"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). Based on this statement of the law, this office has said:

A commissioners court, which sets the budgetary priorities of a county and can decide generally how much of the 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 of his 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.

Tex. Att'y Gen. Op. No. JC-0214 (2000) at 3. And, as a court has elaborated, "[a] sheriff is under as much obligation to conduct his office lawfully as is the commissioners' court its duties." Tarrant County v. Smith, 81 S.W.2d 537, 538 (Tex. Civ. App.-Fort Worth 1935, writ ref'd). Thus, the sheriff, and not the commissioners court, is responsible for seeing that the sheriff's deputies use patrol vehicles only for lawful purposes.

SUMMARY

Article III, section 52(a) of the Texas Constitution prohibits the state and its political subdivisions from granting a thing of value for private use. An exception is made where the grant's predominant purpose is to accomplish a public purpose, not to benefit private parties; where there is public control over the assets to ensure that the public purpose is accomplished and to protect the public's investment; and where the public receives a return benefit. Thus, a sheriff may authorize the sheriff's deputies to use county patrol vehicles for off-duty employment without reimbursing the county only if the predominant purpose is to conserve the peace within the county, the sheriff retains control over the vehicles in a manner that ensures the peace will be conserved, and the county actually receives this public benefit.

There is no authority for a sheriff or a commissioners court to contract with a deputy sheriff to guarantee reimbursement to the county for the deputy's private use of a county patrol vehicle. Thus, neither a sheriff nor a commissioners court may set a rate for reimbursement.

The sheriff, and not the commissioners court, is responsible for seeing that the sheriff's deputies use patrol vehicles only for lawful purposes.

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

Daniel C. Bradford
Assistant Attorney General, Opinion Committee

Footnotes

1. Letter from Honorable Joel D. Littlefield, Hunt County Attorney, to Honorable Greg Abbott, Attorney General of Texas at 1 (Apr. 26, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. We note that Government Code section 612.005 requires the governing body of a political subdivision to insure its law enforcement officers against liability to third persons arising out of the officer's operation of a vehicle owned, leased, or otherwise controlled by the political subdivision "at any time that the officer is authorized to operate the vehicle, including times that the officer is authorized to operate the vehicle while off duty." Tex. Gov't Code Ann. § 612.005(b) (Vernon 2004).