Could a county contract with a homeowners association to dedicate county deputy sheriffs or constables to the association's area in exchange for payment?
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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-57: County Law-Enforcement Contracts with Private Associations
Subsequent treatment — overruled to the extent inconsistent
The Attorney General's official landing page records that JM-57 was overruled to the extent inconsistent with GA-0553.
"Overruled to extent inconsistent with GA-0553"
Source: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0057
GA-0553 explained that JM-57 predated legislation now codified in Local Government Code chapter 351, subchapter D, which authorizes counties to contract for fee-based law-enforcement services with nongovernmental associations. GA-0553 held that such contracts may be valid if they satisfy constitutional public-purpose requirements and do not cede county law-enforcement discretion to the private association.
"Attorney General Opinion JM-57, which opined broadly that a 'county may not contract with a homeowners association to provide law-enforcement protection by county peace officers,' was issued prior to the enactment of Local Government Code section 351.061."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/%32%30%30%37/ga0553.pdf"Under chapter 351, subchapter D of the Local Government Code, a county may contract to provide law-enforcement services to a nongovernmental association on a fee basis, provided the contract does not violate article III, section 52(a) or article III, section 1 of the Texas Constitution."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/%32%30%30%37/ga0553.pdf"Attorney General Opinions JM-57 . . . and JM-509 . . . are overruled to the extent that they are inconsistent with this opinion."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/%32%30%30%37/ga0553.pdf
Plain-English summary
Under the law and contract presented in 1983, JM-57 concluded that a county could not contract with a homeowners association to provide special law-enforcement protection through county deputies. The opinion found that the agreement improperly affected the elected peace officer's discretion over appointment, assignment, and deployment.
"It is our opinion that a county sheriff or constable may not, through a contract executed by the commissioners court, contract away or restrict his discretionary duty regarding the appointment, assignment, and deployment of deputy peace officers."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf"A county may not contract with a homeowners association to provide law enforcement protection by county peace officers."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf
JM-57 also viewed the agreement as unconstitutional and against public policy because the association's payments covered basic salaries and automobile expenses but not the full value of the county's authority and official imprimatur, and because privately funded special patrols created risks of improper influence and unequal service.
"The appearance of impropriety, the potential for conflicts of interest, and the potential for less than impartial enforcement of the law, are matters for serious consideration when law enforcement officers know that their positions are supported and funded voluntarily by persons they police."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf"These considerations, in addition to restriction of discretion discussed above, in our opinion render the agreement in question here void as against public policy and unconstitutional."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf
Those categorical conclusions are no longer reliable to the extent inconsistent with GA-0553 and later statutory authority.
Currency note
This opinion was issued in 1983. 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
What did the Fort Bend County contract require?
It called for four deputy constables to devote substantially all working time to Sugar Creek, provided 24-hour protection, required $120,000 in association payments over one year, generally left supervision with the constable, and allowed departure from the area for emergencies.
"The contract calls for the appointment and assignment of four deputy constables who shall 'devote substantially all of their working time to the area known as Sugar Creek' and whose 'salaries and expenses' will be paid by the association to the county."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf"The agreement calls for twenty-four hour protection. The contract provides for payments to the county in the aggregate amount of $120,000 over the twelve month term of the agreement."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf
Did the contract state that the constable retained supervision?
Yes, but JM-57 found that the agreement as a whole still substantially affected deployment discretion.
"It is agreed that the deputies shall be under the supervision and control of the constable."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf"While the contract states that it shall not 'obligate the constable' we believe the agreement as a whole interjects an impermissible influence and has a substantial and real effect on the exercise of discretion as to the deployment of deputy peace officers by the constable, or the sheriff, as the case may be."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf
What discretion did the sheriff or constable have?
JM-57 relied on authority treating deployment decisions as matters left to the elected officer's discretion when the law did not prescribe them.
"[H]is 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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf
Why did JM-57 treat the contract as surrendering governmental power?
It applied the rule that a governmental entity could not bind itself by contract so as to restrict future exercise of governmental or police powers.
"We believe that the agreement to provide law enforcement protection -- an obvious governmental function and police power of the county -- is void as contracting away such authority."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf"[A water district could not] by contract or otherwise, bind itself in such a way as to restrict its free exercise of [its] governmental powers."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf
Did earlier cases approve privately funded peace officers?
JM-57 said several cases discussed such arrangements without deciding their basic legality. Some instead treated the officer as the private company's employee for liability purposes.
"Several courts and attorneys general have discussed 'law enforcement by contract' schemes but have not discussed their basic legality."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf"There was no discussion in the case as to the legality of such arrangement; the court simply held that the ranger was acting within an employment capacity of the company thereby imposing liability on the company for wrongful death."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf
What alternatives did JM-57 identify in 1983?
It mentioned increased county taxes, reallocating county revenue, municipal incorporation, interlocal law-enforcement agreements, and hiring licensed private security services.
"The proper manner with which to increase the level of law enforcement protection offered by the county is either an increase in county taxes, a reallocation by the commissioners court of the available county revenue, or municipal incorporation."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf"Even without incorporation, there is adequate provision in state law permitting private concerns to hire security services."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf
What does GA-0553 now require under the public-purpose clause?
The commissioners court must determine that the contract predominantly serves a public purpose, the public entity retains adequate controls, and the public receives a return benefit.
"Under article III, section 52(a) the commissioners court must determine, in the first instance, that (1) the contract has as its predominant purpose the accomplishment of a public, rather than a private, purpose; (2) the public entity retains sufficient control to ensure accomplishment of the public purpose; and (3) the public receives a return benefit."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/%32%30%30%37/ga0553.pdf
What control safeguard did GA-0553 emphasize?
The contract must not transfer county law-enforcement deployment discretion to the association.
"To comply with article III, section 1 of the constitution, a contract must not cede county law-enforcement discretion to the nongovernmental association."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/%32%30%30%37/ga0553.pdf
Background and statutory framework
JM-57 stated that no statute then in force authorized the contract. GA-0553 later identified intervening legislation that was recodified in the Local Government Code.
"There is no statute extant which purports to authorize such contracts, nor a constitutional provision at present upon which such a statute could be based."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf"Attorney General Opinion JM-57 . . . was issued prior to the enactment of Local Government Code section 351.061."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/%32%30%30%37/ga0553.pdf
JM-57 assumed that the specially assigned officers would pursue legitimate law-enforcement activity and therefore a proper public purpose. Its objections concerned authority, discretion, public policy, and constitutional value rather than the nature of individual police acts.
"For purposes of this opinion we will assume that any activity by the specially assigned peace officer would be conduct legitimately pursued by a law enforcement officer in the normal course of his duty to preserve the peace. That is, we assume that the officers are pursuing a proper public purpose in their acts."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf
Original holding
"A county may not contract with a homeowners association to provide law enforcement protection by county peace officers."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf
Citations and references
Constitutional and statutory provisions discussed by JM-57:
- "article III, section 52 of the Texas Constitution" Official PDF
- "article II, section 1 of the Texas Constitution" Official PDF
- "articles 2.12 and 2.13 of the Code of Criminal Procedure" Official PDF
- "article 6869, V.T.C.S." Official PDF
- "article 4413(32c), V.T.C.S." Official PDF
- "article 4413(29bb), V.T.C.S." Official PDF
Selected cases cited by JM-57:
- "Weber v. City of Sachse, 591 S.W.2d 563, 567 (Tex. Civ. App. - Dallas 1979, no writ)" Official PDF
- "Murray v. Harris, 112 S.W.2d 1091, 1093 (Tex. Civ. App. - Amarillo 1938, writ dism'd)" Official PDF
- "Clear Lake City Water Authority v. Clear Lake Utilities Company, 549 S.W.2d 385, 391 (Tex. 1977)" Official PDF
- "Lancaster v. Carter, 255 S.W. 392, 393 (Tex. 1923)" Official PDF
- "Bounty Ballroom v. Bain, 211 S.W.2d 248 (Tex. Civ. App. - Amarillo 1948, writ ref'd n.r.e.)" Official PDF
- "Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981)" Official PDF
Subsequent treatment:
- "Overruled to extent inconsistent with GA-0553" Official landing page
- GA-0553 Official PDF
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0057
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0057.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
August 16, 1983
Honorable William A. Meitzen
Criminal District Attorney
Fort Bend County Courthouse
Richmond, Texas 77469
Opinion No. JM-57
Re: Whether a county sheriff or constable may contract with a private homeowners association to furnish it law enforcement services
Dear Mr. Meitzen:
You have requested our opinion concerning the authority of a county to contract with private entities to furnish certified peace officer law enforcement protection in return for monetary payments to the county. Over the course of the years this arrangement has been the subject of opinions from this office and Texas courts, and it is our understanding that such a practice in Texas is not uncommon.
There is no statute extant which purports to authorize such contracts, nor a constitutional provision at present upon which such a statute could be based. Article III, section 52f, of the Texas Constitution, adopted in 1980, allows counties having a population of 5,000 or less to construct and maintain private roads for a reasonable charge, but no other constitutional provision of which we are aware permits contracts of this nature.
The police power of the state is a fundamental attribute of sovereignty, and the Texas Constitution requires that the powers of government be confined only to bodies of "magistracy." Tex. Const. art. II, §1. See City of Dallas v. Smith, 107 S.W.2d 872 (Tex. 1937). In our opinion county officers may not subject their law enforcement responsibilities and functions to private control or direction.
A sheriff, constable, or deputy is a peace officer whose duty it is "to preserve the peace within his jurisdiction." Code Crim. Proc. arts. 2.12, 2.13. Peace officers must be certified by the state. V.T.C.S. art. 4413(29aa). They are vested with privileged authority to make arrests, article 14.03 of the Code of Criminal Procedure, and to possess handguns, sections 46.02 and 46.03 of the Penal Code.
You specifically ask whether a county sheriff or constable can contract, through the commissioners court, with a private homeowners association to furnish law enforcement services to the association whose geographical area is not within the corporate limits of any municipality. You have furnished us a copy of the contract between Fort Bend County and the Sugar Creek Homes Association, a Texas corporation. The contract was executed by the commissioners court and the president of the association. The contract calls for the appointment and assignment of four deputy constables who shall "devote substantially all of their working time to the area known as Sugar Creek" and whose "salaries and expenses" will be paid by the association to the county. The agreement calls for twenty-four hour protection. The contract provides for payments to the county in the aggregate amount of $120,000 over the twelve month term of the agreement. It is agreed that the deputies shall be under the supervision and control of the constable. The deputies are required to remain on patrol in Sugar Creek except in instances of "emergencies." If the full number of deputies are not assigned, the association is entitled to a pro rata refund from the county. There are no provisions in the agreement concerning liability or indemnification in the event of litigation.
Although the submitted contract pertains only to the office of constable, our answer and discussion will also apply to the sheriff's office, as in your question. For purposes of this opinion we will assume that any activity by the specially assigned peace officer would be conduct legitimately pursued by a law enforcement officer in the normal course of his duty to preserve the peace. That is, we assume that the officers are pursuing a proper public purpose in their acts.
While the contract states that it shall not "obligate the constable" we believe the agreement as a whole interjects an impermissible influence and has a substantial and real effect on the exercise of discretion as to the deployment of deputy peace officers by the constable, or the sheriff, as the case may be. The court in Weber v. City of Sachse, 591 S.W.2d 563 (Tex. Civ. App. - Dallas 1979, no writ), discussed the sheriff's law enforcement discretion regarding deployment of his deputies. The case concerned a suit by incorporated municipalities seeking a writ of mandamus compelling the sheriff to patrol within their boundaries. The county had elected to patrol only the unincorporated areas of the county. The court held that this was a proper exercise of the county's discretionary authority as to the level of law enforcement protection and that the sheriff could not be compelled to provide patrols as requested because
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.
Id. at 567. While we certainly agree with the court's holding that a district court cannot interfere with the exercise of discretion by the county regarding law enforcement, we do not believe that such discretion sanctions the execution of a legally impermissible contract.
The court in Murray v. Harris, 112 S.W.2d 1091 (Tex. Civ. App. - Amarillo 1938, writ dism'd), held that the county sheriff could not contract away his discretion to appoint and discharge his deputies at his pleasure as authorized by article 6869, V.T.C.S. The court held that an employment contract with a deputy guaranteeing employment for the duration of the sheriff's term was void and unenforceable. The court stated that the effect of the contract, signed by the sheriff, would be
to abrogate and abandon the important option placed in him by law to terminate the employment at his will or pleasure.
Id. at 1093.
It is our opinion that a county sheriff or constable may not, through a contract executed by the commissioners court, contract away or restrict his discretionary duty regarding the appointment, assignment, and deployment of deputy peace officers. We believe that the agreement to provide law enforcement protection -- an obvious governmental function and police power of the county -- is void as contracting away such authority. The court in Clear Lake City Water Authority v. Clear Lake Utilities Company, 549 S.W.2d 385 (Tex. 1977), held that a water district could not
by contract or otherwise, bind itself in such a way as to restrict its free exercise of [its] governmental powers.
Id. at 391. See also Texas Power & Light Company v. City of Garland, 431 S.W.2d 511 (Tex. 1968) (contracting away police power); Fidelity Land & Trust Company of Texas v. City of West University Place, 496 S.W.2d 116 (Tex. Civ. App. - Houston [14th Dist.] 1973, writ ref'd n.r.e.) (surrender of governmental power by contract).
Several courts and attorneys general have discussed "law enforcement by contract" schemes but have not discussed their basic legality. The case of Hudson v. St. Louis Southwestern Railway Company of Texas, 293 S.W. 811 (Tex. Comm'n App. 1927, holding approved), concerned a wrongful death action which arose as a result of a state ranger being assigned to protect the property of the railway company. The railway company had applied to the governor for the special appointment of state rangers during a labor strike. It was agreed that the company would pay the salaries and expenses of the peace officers. There was no discussion in the case as to the legality of such arrangement; the court simply held that the ranger was acting within an employment capacity of the company thereby imposing liability on the company for wrongful death. The holding and the facts in Lancaster v. Carter, 255 S.W. 392 (Tex. 1923), are similar to Hudson. Deputy sheriffs had been appointed and assigned to guard the property of a railroad company. The sheriff admitted that he exercised no supervision or had any knowledge of the acts of the deputy. The deputy was compensated exclusively and directly by the railroad company. The court held the deputy to be an employee of the company and the latter liable for the wrongful death by the deputy. Furthermore, the court stated that
[T]he sheriff had no authority to appoint or detail a deputy to guard and watch the property of the railroad, except in specific cases of threatened injury.
Id. at 393. The court in Texas & New Orleans Railroad Company v. Parsons, 113 S.W. 914 (Tex. 1908), similarly held that a deputy peace officer assigned to protect railroad premises was acting as an employee of the company, making the latter liable for the wrongful death at issue in the case, and that the sheriff had no authority to make such an appointment.
In Attorney General Opinion O-4338 (1942), this office concluded that Humble Oil and Refining Company could not hire a deputy sheriff to guard its oil storage tanks and other property. The company had agreed to pay the county the monthly salary of the deputy assigned. In Attorney General Opinion O-207 (1939), this office determined that the sheriff could not issue commissions to persons acting as "watchmen, poundmasters, and others whose business requires them to carry large sums of money on their persons."
The appeals court in Bounty Ballroom v. Bain, 211 S.W.2d 248 (Tex. Civ. App. - Amarillo 1948, writ ref'd n.r.e.), gave tacit approval of law enforcement by contract arrangements. The city of Dallas, a home rule city, had passed an ordinance permitting dance hall operators to request the assignment of a "special police officer" to the business premises for which the owner paid the city an established fee. The power of supervision and assignment of the special officers remained, under the ordinance, with the city's chief of police. We believe that any language in the opinion approving manner of contract is dicta and contrary to authorities herein relating specifically to county peace officers; such authority to contract was not litigated in the case nor essential to its holding. Furthermore, we believe the case is inapplicable because it pertained to the authority of a home rule city rather than to a county.
The deputy is paid by the county, at least facially. We believe it is not necessary to discuss the basic rule of law that a public officer may not accept compensation from third parties or private sources for the performance of official duties.
Because the agreement in question provides that it shall not "obligate" the county and that the assigned officers remain under the supervision of the elected peace officer, and thereby, arguably, making inapplicable the authorities discussed above prohibiting contracting away such responsibilities, we believe it is necessary to discuss public policy and constitutional questions. The appearance of impropriety, the potential for conflicts of interest, and the potential for less than impartial enforcement of the law, are matters for serious consideration when law enforcement officers know that their positions are supported and funded voluntarily by persons they police. Furthermore, we believe the bare cost items of reimbursement to the county -- automobile expenses and salaries -- do not adequately cover the full value received by the association in the purchase of the county's name, special authority, and the "good will," as it were, of the county. Such aspects of official imprimatur are of value and are conveyed gratis to a defined group of individuals in violation of article III, section 52, of the Texas Constitution, which denies political subdivisions the authority "to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever."
Although we are imputing no improper motives to those wishing to secure law enforcement protection in this manner, we believe that permitting a group of economically able persons to purchase additional protection is fraught with potential for abuse and is an unorthodox manner of conducting the affairs of government. The proper manner with which to increase the level of law enforcement protection offered by the county is either an increase in county taxes, a reallocation by the commissioners court of the available county revenue, or municipal incorporation. The parties may then clearly be entitled to contract for law enforcement protection under the Interlocal Cooperation Act, article 4413(32c), or article 999b, V.T.C.S., which pertains to interlocal assistance among law enforcement officers. Even without incorporation, there is adequate provision in state law permitting private concerns to hire security services. The Private Investigators and Private Security Agencies Act, article 4413(29bb), V.T.C.S., permits a person, association, or corporation to employ the services of a "guard company" to provide a "private watchman, guard or street patrol" to protect private property and protect persons from bodily harm. Id. §2(4). These considerations, in addition to restriction of discretion discussed above, in our opinion render the agreement in question here void as against public policy and unconstitutional.
The funding for county law enforcement protection comes from the general fund of the county which is generated by tax revenues and other legitimate county fees and charges. The commissioners court is vested with discretion with regard to the allocation of this public money for law enforcement and has the duty to adequately fund the sheriff's office. See Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981).
In our opinion, neither a county, a sheriff, nor a constable is empowered to enter into a contract with private entities or homeowners to furnish them special law enforcement protection unavailable to others. All such agreements are void and unenforceable. Although protection not available to others might be furnished to areas or persons in the exercise of a reasonable discretion based on general public need, Weber v. City of Sachse, supra, county officials are not at liberty to base such decisions on the wishes of private groups to have public equipment and personnel specially devoted to their interests, or upon the willingness of such groups to pay therefor. See Ex parte Conger, 357 S.W.2d 740 (Tex. 1962).
SUMMARY
A county may not contract with a homeowners association to provide law enforcement protection by county peace officers.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by David Brooks
Assistant Attorney General
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