Can a county sheriff police a city inside the county without an agreement, and must service be equal because residents pay county taxes?

Texas AG Opinion JC-0125: A County Sheriff Policing a City Without an Interlocal Agreement

Plain-English summary

State Senator Judith Zaffirini asked, for Dimmit County, whether the county could keep providing law enforcement inside Carrizo Springs, a city within the county, after the interlocal contract between the two had ended. Carrizo Springs has no municipal police department. More than half of Dimmit County's roughly 10,500 residents live there, and about ninety percent of the county's crimes happen there. The county and city had a 1989 agreement under which the county provided sheriff's services for $60,000 a year, but the county terminated it in 1998 when the city would not pay more. The sheriff kept patrolling the city anyway. The senator asked three things: may the county provide law enforcement in the city without an interlocal agreement; is the county obligated to police the city because city residents pay county taxes; and must the sheriff and deputies respond to crimes within city limits without an agreement.

The Attorney General concluded that the sheriff may provide law enforcement in Carrizo Springs without any agreement. A sheriff is an elected county officer and, under article 2.17 of the Code of Criminal Procedure, the conservator of the peace in his county. That authority runs throughout the county, including the parts inside an incorporated city's boundaries. Because the sheriff is simply exercising the authority of his office, providing those services does not violate article III, section 52 of the Texas Constitution, which bars a county from giving its money or anything of value to a city; the sheriff is not donating anything, he is doing his job.

On the tax question, the opinion relied on Weber v. City of Sachse, a Dallas case where cities sued to force the county to keep deputies patrolling within their limits. The court there held that the sheriff's deployment decisions are left to his discretion and that no law imposes a mandatory duty to supply a particular level of protection to a given city. The same court rejected the argument that paying county taxes entitles a city to equal protection, holding that equal protection does not require equal benefits every time government money is spent; absent discrimination based on a suspect class, the county needs only a rational basis for providing different levels of service to different areas. So the AG concluded the sheriff is authorized to respond to calls inside the city without an agreement, but how to allocate the office's law enforcement effort across the county is for the sheriff to decide in his reasonable discretion.

Currency note

This opinion was issued in 1999. 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.

Common questions

Could the sheriff police a city inside the county without an interlocal agreement?
Yes. The opinion concluded that as conservator of the peace for the whole county, the sheriff is authorized to perform law enforcement inside an incorporated city in the county, and no contract with the city is needed for him to do so.

Did providing those services for free amount to an unlawful gift to the city?
No. The opinion held that the sheriff providing law enforcement within city limits does not donate county funds or anything of value to the city in violation of article III, section 52; the sheriff is acting within the authority of his office.

Because city residents pay county taxes, was the county required to give them equal protection?
No. The opinion explained, following City of Sachse, that paying county taxes does not entitle residents to the same level of law enforcement the county provides elsewhere. The county needs only a rational basis for providing different levels of service to different areas.

Was the sheriff legally required to respond to every crime within the city?
The opinion said no statute imposes a mandatory duty to supply a specific level of law enforcement in a city. The sheriff is authorized to respond inside city limits, but how to allocate his office's services across the county is left to his reasonable discretion.

Who decides how deputies get deployed across the county?
The opinion placed that decision with the sheriff, in the exercise of reasonable discretion, because the matter is not specifically prescribed by law. A court may intervene only if an official fails to perform a mandatory duty or oversteps his discretion.

Background and statutory framework

The sheriff is an elected county officer (Tex. Const. art. V, § 23), and the commissioners court sets the compensation and allowances for county officers (Tex. Loc. Gov't Code Ann. § 152.011). Under article 2.17 of the Code of Criminal Procedure, each sheriff is a conservator of the peace in his county, which the opinion read to authorize law enforcement throughout the county, including areas inside incorporated cities. The Interlocal Cooperation Act (Tex. Gov't Code ch. 791) lets governments contract for shared services, like the terminated Dimmit County-Carrizo Springs agreement, but the opinion concluded such a contract is not a precondition to the sheriff's authority.

The constitutional gift-of-public-funds limit (Tex. Const. art. III, § 52(a)) bars a county from donating its funds or anything of value to a municipal corporation, as illustrated by San Antonio Indep. Sch. Dist. v. Board of Trustees, 204 S.W.2d 22 (Tex. Civ. App.-El Paso 1947, writ ref'd n.r.e.); the opinion found no violation because the sheriff is exercising his own office's powers. On the discretion and equal-protection questions, the opinion relied on Weber v. City of Sachse, 591 S.W.2d 563 (Tex. Civ. App.-Dallas 1979, writ dism'd), and cited Newburn v. Durham, 31 S.W. 195 (Tex. 1895), along with prior opinion H-1123 (1978) and letter opinion LO-98-079.

Citations

Statutes and constitutional provisions:

• Tex. Const. art. V, § 23
• Tex. Const. art. III, § 52(a)
• Tex. Loc. Gov't Code Ann. § 152.011 (Vernon 1999)
• Tex. Code Crim. Proc. art. 2.17 (Vernon 1977)
• Tex. Gov't Code ch. 791 (Vernon 1994 & Supp. 1999)

Cases:

• Weber v. City of Sachse, 591 S.W.2d 563 (Tex. Civ. App.-Dallas 1979, writ dism'd)
• Newburn v. Durham, 31 S.W. 195 (Tex. 1895)
• San Antonio Indep. Sch. Dist. v. Board of Trustees, 204 S.W.2d 22 (Tex. Civ. App.-El Paso 1947, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0125
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0125.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL, STATE OF TEXAS
JOHN CORNYN

October 13, 1999

The Honorable Judith Zaffirini
Chair, Human Services Committee
Texas State Senate
P.O. Box 12068, 1E.5
Austin, Texas 78711-2068

Opinion No. JC-0125

Re: Authority of county to provide law enforcement services in a municipality within its boundaries (RQ-0073-JC)

Dear Senator Zaffirini:

You ask whether Dimmit County may provide law enforcement services in Carrizo Springs, a city located within the boundaries of the county, in the absence of an interlocal agreement between the city and the county. The law enforcement services in question are provided by the sheriff, whose office is funded by the commissioners court. See TEX. CONST. art. V, § 23 (establishing elective office of county sheriff); TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 1999) (commissioners court shall set amount of compensation, office and travel expenses and all other allowances for county officers); Tex. Att'y Gen. Op. No. H-1123 (1978) at 2 (law enforcement activities of county are vested in officers such as sheriff and district attorney, not in the commissioners court). We conclude that the sheriff is authorized to provide law enforcement services in Carrizo Springs absent an interlocal agreement between the county and the city. You also ask whether the fact that the residents of Carrizo Springs pay county taxes obligates the county to provide these services within the boundaries of Carrizo Springs, and whether the sheriff is obligated to provide law enforcement services within the city. We conclude that the sheriff is authorized to decide, in the exercise of reasonable discretion, how to allocate the law enforcement services of his office to different areas in the county, and the fact that municipal residents pay county taxes does not dictate a particular level of county law enforcement protection in municipalities.

A letter that you have received from the County Judge of Dimmit County ("the county") provides the background for your request. See Letter from Honorable Charles D. Johnson, Dimmit County Judge, to Honorable Judith Zaffirini, Texas Senate (May 5, 1999) (on file with Opinion Committee) [hereinafter "Johnson Letter"]. It states that the City of Carrizo Springs does not fund a municipal police department. See id. at 1. More than half of the approximately 10,500 residents of Dimmit County live in Carrizo Springs, and about ninety percent of the county's crimes occur there. Id. In 1989, Dimmit County and the City of Carrizo Springs entered into an interlocal "Agreement for Provision of Additional Services by Sheriff's Department" whereby the county agreed to provide law enforcement services to the city for $60,000 a year. Id.; see also TEX. GOV'T CODE ANN. ch. 791 (Vernon 1994 & Supp. 1999) (Interlocal Cooperation Act); Tex. Att'y Gen. LO-98-079 (interlocal agreement between municipal utility district and county for provision of security patrols in district by constable's and sheriff's office). The county terminated the agreement in 1998 after the city failed to accede to its requests for additional compensation. See Johnson Letter at 2. However, the sheriff continues to direct deputies to patrol the city, make security checks of downtown businesses, answer calls for assistance, provide dispatcher services, investigate crimes, file offense and arrest reports, make arrests within the boundaries of the city, and in general, provide law enforcement services there, in the absence of any written agreement between the city and county. Id.

You submit the following questions about the sheriff's provision of law enforcement services in Carrizo Springs under the circumstances outlined by the county judge:

[May] the County provide law enforcement services within the municipal boundaries of the City of Carrizo Springs without an Interlocal Agreement?

. . .

Is the county obligated to provide police protection to municipal residents because they pay county taxes?

Are the sheriff and his deputies obligated to respond within the boundaries of a municipality upon the report of a violation or impending violation of the Texas Penal Code without an interlocal governmental agreement for law enforcement between the municipality and the county?

Id. at 1, 3.

It is suggested that the sheriff's provision of law enforcement services within Carrizo Springs in the absence of compensation to the county violates article III, section 52 of the Texas Constitution, which provides that the legislature "shall have no power to authorize any county, city, town, or other political corporation or subdivision of the State 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 prevents a county from donating its funds or anything of value to an independent municipal corporation. See San Antonio Indep. Sch. Dist. v. Board of Trustees, 204 S.W.2d 22, 25 (Tex. Civ. App.-El Paso 1947, writ ref'd n.r.e.).

The sheriff's provision of law enforcement services within the boundaries of an incorporated municipality in the county does not violate article III, section 52(a) of the Texas Constitution. A sheriff is an elected county officer whose "duties . . . shall be prescribed by the Legislature." TEX. CONST. art. V, § 23. Article 2.17 of the Code of Criminal Procedure provides that "[e]ach sheriff shall be a conservator of the peace in his county." TEX. CODE CRIM. PROC. art. 2.17 (Vernon 1977). This provision authorizes the sheriff to perform law enforcement duties throughout the county, including those areas of the county that lie within the boundaries of incorporated cities. See Weber v. City of Sachse, 591 S.W.2d 563, 566-67 (Tex. Civ. App.-Dallas 1979, writ dism'd) (sheriff's authority to deploy deputies within boundaries of incorporated cities); Newburn v. Durham, 31 S.W. 195 (Tex. 1895) (where statute gives city marshal same authority as sheriff of a county under laws of state, marshal may make arrest anywhere in county). Thus, the sheriff's jurisdiction as conservator of the peace in Dimmit County includes the area within the boundaries of Carrizo Springs, and no contractual arrangement between the city and county or compensation to the county is necessary for him to exercise law enforcement powers in the city. In performing law enforcement services in Carrizo Springs, the sheriff does not donate county funds or any other thing of value to the city in violation of article III, section 52 of the Texas Constitution but merely acts within the authority of his office.

You next inquire whether, in the absence of an interlocal contract, the county is obligated to provide police protection in Carrizo Springs, because municipal residents pay county taxes, and whether the sheriff and his deputies are obligated to respond within the boundaries of a municipality to the report of a violation or impending violation of the Texas Penal Code. The opinion in City of Sachse, which addresses the county sheriff's provision of law enforcement services within incorporated municipalities in the county, provides answers to your questions. The Dallas County Commissioners Court terminated funding for twenty sheriff's deputies, and the sheriff ceased to maintain regular patrols within the limits of incorporated municipalities within Dallas County, although the sheriff's department still responded to calls by city residents. See City of Sachse, 591 S.W.2d at 565, 568. Two incorporated municipalities in the county brought suit against the sheriff, county judge, and county commissioners of Dallas County, seeking an injunction requiring the commissioners court to fund and the sheriff to provide at least five deputies to patrol within the boundaries of each city. Id. at 565. The court determined as follows:

Although the sheriff has the duty to conserve the peace within the county, his decisions as to the deployment of law enforcement officers within the county are left to his discretion and judgment since this matter is not specifically prescribed by law. A court may properly intervene only where a public official fails to perform a mandatory duty or oversteps the bounds of his discretion. The law imposes no mandatory duty on the sheriff to supply a certain level of law enforcement to the plaintiff municipalities.

Id. at 567 (citation omitted).

Because no statute obligates the sheriff and his deputies to provide a specific level of law enforcement within the boundaries of an incorporated municipality, it is for the sheriff, in the exercise of reasonable discretion, to determine how to allocate the law enforcement services of his office to different parts of the county, including parts of the county within the boundaries of an incorporated city.

The plaintiff cities in City of Sachse also argued that they were entitled to the same county police protection as provided in the unincorporated areas of Dallas County because their citizens paid the same county taxes as residents of the unincorporated areas. See id. The court determined that "[e]qual protection does not entitle every citizen to receive equal benefits each time government money is spent." Id. Absent invidious discrimination based on a suspect classification such as race or sex, equal protection requires only that the county government have a rational basis for providing different levels of law enforcement services to different areas of the county. See id. Upon review of the relevant facts, the court determined that the commissioners court and the sheriff had a rational basis for an unequal deployment of county sheriff's patrols between the areas within the limits of the plaintiff municipalities and the unincorporated areas of the county.

Accordingly, we conclude that the Dimmit County sheriff is authorized by section 2.17 of the Code of Criminal Procedure to perform law enforcement services throughout the county, and no interlocal agreement between the county and the government of an incorporated city within the county is necessary to enable the sheriff to provide these services within the city's boundaries. The fact that municipal residents pay county taxes does not require the county sheriff to provide an equal level of law enforcement protection within municipal boundaries as it does in the unincorporated areas. The county government must have a rational basis for providing different levels of law enforcement services to different areas of the county. The sheriff is authorized to respond to calls for law enforcement help within the boundaries of a municipality despite the absence of an interlocal agreement between the city and the county. It is for the sheriff, in the exercise of reasonable discretion, to determine how to allocate the law enforcement services of his office to different parts of the county.

SUMMARY

The sheriff is conservator of the peace in the county and has authority to perform law enforcement services throughout the county, including the area within the boundaries of an incorporated city, absent an interlocal contract with the city. It is for the sheriff, in the exercise of reasonable discretion, to determine how the law enforcement efforts of his office should be allocated to different areas of the county. The fact that municipal residents pay county taxes does not require the county sheriff to provide an equal level of law enforcement protection within municipal boundaries as he does in the unincorporated areas, as long as there is a rational basis for providing different levels of law enforcement services to different areas of the county.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee