Does a Texas sheriff need the commissioners court to approve the office policy manual?

Plain-English summary

The Clay County Attorney asked the Attorney General whether a sheriff must produce the sheriff's office policy manual to the county commissioners court for the court's approval or rejection. The opinion started from how Texas county government is structured. County commissioners and the sheriff are all elected constitutional officers. A commissioners court has only the powers the constitution or a statute confers, plus the implied authority needed to carry out those duties, and its primary job is to administer the county's business affairs. But the county and the commissioners court are not the same thing: each elected county official has a sphere delegated to that official by law in which the commissioners court may not interfere or usurp. That sphere consists of the official's core constitutional and statutory duties.

A sheriff's powers likewise come from the constitution and statutes, and a sheriff's principal duties include enforcing the law in the county and keeping the county jail. The opinion found no statute authorizing a commissioners court to approve or reject the office policy manual of an elected county official. To the contrary, Texas courts have recognized that a sheriff has the power to make and enforce rules, regulations, and policy, with the authority to define objectives and choose the means of achieving them, and that elected county officials such as a sheriff hold virtually absolute sway over the particular tasks or areas of responsibility entrusted to them by statute.

Applying that, the opinion concluded that a court would likely treat the creation of an internal sheriff's office policy manual as an area of responsibility entrusted to the sheriff, over which the sheriff has virtually absolute sway. As a result, a court would likely determine that the county commissioners court is not authorized to approve or disapprove the sheriff's office policy manual. In a footnote, the opinion noted that the sheriff's attached letter also asked which policy should prevail if the sheriff's policy conflicts with a county policy set by the commissioners court, but it declined to answer that, explaining that the answer would require a fact-specific analysis of the particular subject to determine who holds final policymaking authority.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Sheriffs (as the opinion described it): The opinion described the office policy manual as within the sheriff's own sphere of authority, an area over which the sheriff has virtually absolute sway, so it is not subject to commissioners court approval.

Commissioners courts (as the opinion described it): The opinion concluded the court is not authorized to approve or disapprove a sheriff's office policy manual, because no statute gives it that power and the manual falls within the sheriff's exclusive sphere.

County attorneys and other county officials (as the opinion described it): The opinion's reasoning about an elected official's exclusive sphere applies generally to elected county officials, not just the sheriff, but it expressly left open which policy controls when a sheriff's policy and a county policy conflict, treating that as a fact-specific question.

Common questions

Can a Texas commissioners court approve or reject the sheriff's policy manual?
No, according to the opinion. It found no statute giving the commissioners court that power and concluded a court would likely treat the sheriff's office policy manual as within the sheriff's own area of responsibility.

Who controls the sheriff's internal office policies?
The opinion described the sheriff as having the power to make and enforce rules, regulations, and policy, with virtually absolute sway over the tasks and areas of responsibility entrusted to the sheriff by statute.

Why can't the commissioners court interfere?
The opinion explained that each elected county official has a sphere delegated by law in which the commissioners court may not interfere or usurp, and the sheriff's office policy manual falls within the sheriff's sphere.

What if the sheriff's policy conflicts with a county policy?
The opinion did not resolve that. It said the answer would require a fact-specific analysis of the particular subject to determine whether the sheriff or the commissioners court has final policymaking authority.

Background and statutory framework

The opinion built on the constitutional structure of county government: article V, section 18(b) establishes a commissioners court for each county, and article V, section 23 establishes the office of sheriff and lets the Legislature prescribe a sheriff's duties, qualifications, perquisites, and fees of office. A sheriff's principal duties (enforcing the law and keeping the county jail) come from Local Government Code section 351.041 and Code of Criminal Procedure article 2.17.

On the limits of commissioners court power, the opinion relied on City of San Antonio v. City of Boerne (a commissioners court has only conferred powers plus necessary implied powers, viewed as duties) and Pritchard & Abbott v. McKenna (each elected official has a sphere the commissioners court may not usurp), with Griffin v. Birkman defining that sphere as the official's core constitutional and statutory duties. For the sheriff's authority over policy, it cited Fort Bend Cnty. Wrecker Ass'n v. Wright (a sheriff's power to make and enforce rules and policy) and Hooten v. Enriquez (elected officials hold virtually absolute sway over areas entrusted to them, quoting the federal decision Familias Unidas v. Briscoe), and also cited the federal decision Turner v. Upton County.

Citations

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)
• Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961)
• Griffin v. Birkman, 266 S.W.3d 189, 197 (Tex. App.-Austin 2008, pet. denied)
• Fort Bend Cnty. Wrecker Ass'n v. Wright, 39 S.W.3d 421, 425-26 (Tex. App.-Houston [1st Dist.] 2001, no pet.)
• Turner v. Upton County, 915 F.2d 133, 136 (5th Cir. 1990)
• Hooten v. Enriquez, 863 S.W.2d 522, 531 (Tex. App.-El Paso 1993, no writ)
• Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)

Statutes and constitutional provisions:

• Tex. Const. art. V, § 18(b); art. V, § 23
• Tex. Loc. Gov't Code Ann. § 351.041 (West 2005)
• Tex. Code Crim. Proc. Ann. art. 2.17 (West 2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0994
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga0994.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 15, 2013

The Honorable Seth C. Slagle Opinion No. GA-0994
Clay County Attorney
Post Office Drawer 449 Re: Whether a sheriff must submit an office
Henrietta, Texas 76365-0449 policy manual to the county commissioners court
for approval (RQ-1087-GA)

Dear Mr. Slagle:

You ask whether a sheriff must produce an office policy manual to the county commissioners court for their approval or rejection.[1]

County commissioners and the county sheriff are all elected constitutional officers. See TEX. CONST. art. V, § 18(b) (establishing a county commissioners court for each county); id. art. V, § 23 (establishing the office of sheriff). A county commissioners court has only the powers that the Texas Constitution or a state statute confer on it. TEX. CONST. art. V, § 18(b); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). A commissioners court also has the implied authority to exercise the power necessary to accomplish its constitutional and statutory duties. City of San Antonio, 111 S.W.3d at 28. Powers conferred by the Legislature on counties and commissioners courts, however, should be viewed as duties rather than privileges. Id.

The commissioners court's primary function is to administer the county's business affairs. Id. at 27. The county and the commissioners court are not synonymous, however: "[T]he County Commissioners Court is not charged with the management and control of all of the County's business affairs. Each of the [county's] various elected officials . . . has the sphere that is delegated to him by law and within which the Commissioners Court may not interfere or usurp." Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961) (emphasis added). An elected county official's exclusive sphere of authority consists of the officer's core duties under the Texas Constitution and statutes. See Griffin v. Birkman, 266 S.W.3d 189, 197 (Tex. App.-Austin 2008, pet. denied).

Like a commissioners court, a sheriff's powers derive from our constitution and statutes. See TEX. CONST. art. V, § 23 (providing for the Legislature to prescribe a sheriff's "duties, qualifications, perquisites, and fees of office"). A sheriff's principal duties include enforcing the law in the county and keeping the county jail. TEX. LOC. GOV'T CODE ANN. § 351.041 (West 2005); TEX. CODE CRIM. PROC. ANN. art. 2.17 (West 2005).

No statute of which we are aware authorizes a commissioners court to approve or reject the office policy manual of an elected county official. To the contrary, "a Texas Sheriff has the power to make and enforce rules, regulations, and policy [and has] the 'authority to define objectives and choose the means of achieving them.'" Fort Bend Cnty. Wrecker Ass'n v. Wright, 39 S.W.3d 421, 425-26 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (citations omitted); see also Turner v. Upton County, 915 F.2d 133, 136 (5th Cir. 1990). Elected county officials such as a sheriff hold "'virtually absolute sway over the particular tasks or areas of responsibility entrusted to [them] by state statute.'" Hooten v. Enriquez, 863 S.W.2d 522, 531 (Tex. App.-El Paso 1993, no writ) (quoting Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)). A court would likely conclude that creation of an internal sheriff's office policy manual is an "area of responsibility entrusted to [the sheriff]" over which the sheriff has "virtually absolute sway." Id. As a result, a court would likely determine that the county commissioners court is not authorized to approve or disapprove of the sheriff's office policy manual.[2]

SUMMARY

A court would likely determine that the county commissioners court is not authorized to approve or disapprove of the sheriff's office policy manual.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] Letter and Brief from Honorable Seth C. Slagle, Clay Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Sept. 28, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter" & "Brief").

[2] The sheriff's letter attached to your request further asks which policy should prevail should the sheriff's policy conflict with county policy established by the commissioners court. Letter from Honorable K.R. "Kenny" Lemons, Clay Cnty. Sheriff, to Honorable Seth C. Slagle, Clay Cnty. Att'y at 2 (Sept. 13, 2011) (attached to Request Letter). The answer would require an analysis of the specific subject of the policies to determine whether, under the facts and applicable law, the sheriff or the commissioners court possesses final policymaking authority.