Can a Texas county sheriff accept or solicit donations from the public?

Plain-English summary

Jim Wheeler, the Wood County Criminal District Attorney, asked the Attorney General about a fundraising effort by the Wood County Sheriff. The sheriff wanted to buy a side-scanning sonar for the department's lake patrol program, the commissioners court had not budgeted for it, and the court had passed a resolution authorizing it to accept donations for the program. The sheriff was asking that donations be sent directly to his office. Wheeler asked three things: could the sheriff receive donations directly, could the sheriff solicit donations, and had the sheriff's conduct possibly violated the Penal Code's rule against a public servant accepting benefits.

On the first question, the AG drew a line between the sheriff and the commissioners court. A sheriff has only the powers the constitution and statutes give him, expressly or by implication, and no statute lets a sheriff accept donations to the county. Section 81.032 of the Local Government Code, by contrast, expressly authorizes the commissioners court to accept a gift, grant, donation, bequest, or devise on the county's behalf to support a function the law assigns to the county or a county officer. Once the court accepts a donation, the money goes to the county treasurer, who disburses it as the law and the commissioners court direct. So the AG concluded the commissioners court, not the sheriff, is the proper body to receive and accept donations, and a sheriff who gets donations directly should immediately forward them to the court.

On the second question, the AG concluded the sheriff may solicit donations. No statute says so in those words, but the sheriff's principal job is to enforce the law in the county, and that express duty carries with it the implied "reasonable authority necessary to attain the end result," which includes asking for support and requesting needed equipment from the commissioners court.

On the third question, the AG declined to opine. Section 36.08 of the Penal Code makes it an offense for certain public servants to solicit or accept a benefit from someone they know is subject to their regulation or investigation, and a sheriff fits the definition of a covered public servant. But whether this particular sheriff's conduct actually crossed that line depends on disputed questions of fact, and the AG explained that the opinion process does not investigate allegations of illegal conduct or resolve fact disputes.

Currency note

This opinion was issued in 2015. 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

County sheriffs (as the opinion described it): The opinion described a sheriff as having no statutory authority to accept donations to the county directly, so a sheriff who received public donations was to forward them immediately to the commissioners court. It also described the sheriff as having implied authority, flowing from the duty to enforce the law, to solicit donations and to request needed equipment from the commissioners court.

Commissioners courts (as the opinion described it): The opinion identified the commissioners court as the body section 81.032 authorizes to accept a gift, grant, donation, bequest, or devise on the county's behalf, and described the court as the proper recipient of donations for a county program.

County treasurers (as the opinion described it): The opinion described the treasurer as the official who, once the commissioners court accepts a donation, holds and disburses the money belonging to the county as the law and the commissioners court direct under sections 113.021(a) and 113.041(a).

District attorney Wheeler and anyone asking about the Penal Code question (as the opinion described it): The opinion treated whether the sheriff's conduct violated section 36.08 of the Penal Code as a fact question outside the opinion process, and the AG declined to resolve it.

Common questions

Can a Texas county sheriff keep donations sent straight to his office?
The AG concluded no. No statute authorizes a sheriff to accept donations to the county, so the opinion said a sheriff who receives donations directly should immediately forward them to the commissioners court.

Who is supposed to accept donations for a county program?
The AG identified the commissioners court. Section 81.032 of the Local Government Code authorizes the commissioners court to accept a gift, grant, donation, bequest, or devise on the county's behalf to support a function the law assigns to the county or a county officer.

Can a sheriff ask the public for donations at all?
The AG concluded the sheriff may solicit donations. Although no statute says so directly, the sheriff's express duty to enforce the law carries implied authority to take reasonable steps toward that end, which the opinion said includes soliciting support.

What happens to the money after the commissioners court accepts a donation?
The opinion explained that the court deposits the money with the county treasurer, who then disburses and applies it as the law requires and as the commissioners court directs.

Did the AG decide whether the sheriff broke the law by soliciting donations?
No. The AG explained that whether the sheriff's conduct violated section 36.08 of the Penal Code depends on questions of fact, and that the opinion process does not investigate allegations of illegal conduct or resolve disputed facts.

Background and statutory framework

A Texas sheriff holds a constitutional office whose duties are "prescribed by the Legislature" (Tex. Const. art. V, § 23), and a sheriff may exercise only the powers the constitution and statutes confer expressly or by implication (Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941)). The opinion found no statute authorizing a sheriff to accept public donations to the county.

The authority to accept donations sits instead with the commissioners court. Section 81.032 of the Local Government Code lets the commissioners court accept "a gift, grant, donation, bequest, or devise of money or other property on behalf of the county" to perform a function the law confers on the county or a county officer (Tex. Loc. Gov't Code Ann. § 81.032 (West 2008)). Money the court accepts is deposited with the county treasurer (id. § 113.021(a) (West Supp. 2014)), who disburses county money "as required by law and as the commissioners court may require or direct, not inconsistent with law" (id. § 113.041(a)). A prior opinion read section 81.032 as authorizing the commissioners court to accept a donation of property to be used by the sheriff in performing the office's statutory functions (Tex. Att'y Gen. Op. No. GA-0229 (2004)).

On solicitation, the opinion relied on the sheriff's express law-enforcement duty (Tex. Code Crim. Proc. Ann. art. 2.17 (West 2005)) and the principle that an express grant of authority carries the implied "reasonable authority necessary to attain the end result" (Fort Bend Cnty. Wrecker Ass'n v. Wright, 39 S.W.3d 421 (Tex. App.-Houston [1st Dist.] 2001, no pet.); see also Tex. Att'y Gen. Op. No. JC-0214 (2000)).

On the criminal-law question, section 36.08(a) of the Penal Code makes it an offense for a public servant in an agency performing regulatory functions or conducting inspections or investigations to solicit, accept, or agree to accept a benefit from a person the public servant knows to be subject to regulation, inspection, or investigation (Tex. Penal Code Ann. § 36.08(a) (West 2011)). A sheriff is a "public servant" within that rule (id. § 1.07(a)(41) (West Supp. 2014); Tex. Code Crim. Proc. Ann. art. 2.17 (West 2005)). The AG nevertheless declined to decide whether this sheriff's conduct violated the section, treating it as a fact question outside the opinion process (Tex. Att'y Gen. Op. Nos. GA-0760 (2010), GA-0876 (2011)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, § 23 (sheriff's duties prescribed by the Legislature)
• Tex. Loc. Gov't Code Ann. § 81.032 (West 2008) (commissioners court may accept gifts on the county's behalf)
• Tex. Loc. Gov't Code Ann. § 113.021(a) (West Supp. 2014) (deposit with county treasurer)
• Tex. Loc. Gov't Code Ann. § 113.041(a) (treasurer disburses county money)
• Tex. Code Crim. Proc. Ann. art. 2.17 (West 2005) (sheriff's law-enforcement duty)
• Tex. Penal Code Ann. § 36.08(a) (West 2011) (gift to a public servant subject to his jurisdiction)
• Tex. Penal Code Ann. § 1.07(a)(41) (West Supp. 2014) (definition of "public servant")

Cases:

• Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)
• Fort Bend Cnty. Wrecker Ass'n v. Wright, 39 S.W.3d 421, 425 (Tex. App.-Houston [1st Dist.] 2001, no pet.)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. GA-0229 (2004), JC-0214 (2000), GA-0760 (2010), GA-0876 (2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0003
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0003.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 17, 2015

The Honorable Jim Wheeler Opinion No. KP-0003
Wood County Criminal District Attorney
Post Office Box 689 Re: Whether a county sheriff may solicit and
Quitman, Texas 75783 receive public donations for programs of the
sheriff's department (RQ-1214-GA)

Dear Mr. Wheeler:

You explain that the "Wood County Sheriff is attempting to raise funds to purchase a side scanning sonar for use in its lake patrol program." [1] Brief at 1. Because the Wood County Commissioners Court has not budgeted funds for the purchase of any additional program equipment, it has passed a resolution authorizing it to "accept donations from donors for the Wood County Sheriff's Department Lake Patrol Program." [2] You ask whether the county sheriff may solicit and receive donations to be used for this program. Request Letter at 1.

Your first question asks whether the sheriff may "receive donations directly" for the lake patrol program, noting that the sheriff is asking that donations be sent directly to his office. Brief at 1. [3] A sheriff may exercise only those powers that the state constitution and statutes confer, either explicitly or implicitly. TEX. CONST. art. V, § 23 (stating that a sheriff's duties "shall be prescribed by the Legislature"); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941) (stating that a sheriff lacks authority to contract unless the sheriff is "specially so authorized to do by statute"). No statute authorizes a sheriff to accept donations from the public to the county.

In contrast, section 81.032 of the Local Government Code provides that "[t]he commissioners court may accept a gift, grant, donation, bequest, or devise of money or other property on behalf of the county for the purpose of performing a function conferred by law on the county or a county officer." TEX. LOC. GOV'T CODE ANN. § 81.032 (West 2008). Once the commissioners court has received a donation on behalf of the county, it must deposit the money with the county treasurer. Id. § 113.021(a) (West Supp. 2014). The county treasurer disburses and applies money belonging to the county "as required by law and as the commissioners court may require or direct, not inconsistent with law." Id. § 113.041(a). Thus, it appears that pursuant to section 81.032, the Legislature intended the commissioners court to be the proper body to receive and accept donations on the county's behalf. Tex. Att'y Gen. Op. No. GA-0229 (2004) at 10 (explaining that "section 81.032 authorizes a commissioners court to accept a donation of property to be used by the sheriff in performing that office's statutory functions"). To the extent that members of the public send donations directly to the sheriff, the sheriff should immediately forward those funds to the commissioners court for proper handling.

Your second question asks whether the sheriff may solicit donations for the lake patrol program. Brief at 1-2. No statute expressly authorizes a sheriff to solicit donations; however, one of the sheriff's principal duties is to enforce the law within the county. TEX. CODE CRIM. PROC. ANN. art. 2.17 (West 2005). By expressly authorizing the sheriff to enforce the law, the Legislature has implicitly given the sheriff any "reasonable authority necessary to attain the end result." Fort Bend Cnty. Wrecker Ass'n v. Wright, 39 S.W.3d 421, 425 (Tex. App.-Houston [1st Dist.] 2001, no pet.). Certainly, pursuant to that implicit authority, the sheriff may request from the commissioners court equipment that the sheriff's office needs to enforce the law. See Tex. Att'y Gen. Op. No. JC-0214 (2000) at 7 (explaining that in deciding which equipment to purchase for the sheriff's department, the commissioners court may consult with the sheriff).

You question whether the sheriff's conduct in this instance may have violated section 36.08 of the Penal Code. Brief at 2. Section 36.08 provides:

A public servant in an agency performing regulatory functions or conducting inspections or investigations commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows to be subject to regulation, inspection, or investigation by the public servant or his agency.

TEX. PENAL CODE ANN. § 36.08(a) (West 2011). A sheriff is a "public servant" with authority to regulate and investigate the conduct of persons in the sheriff's county, making a sheriff subject to the prohibitions in section 36.08. Id. § 1.07(a)(41) (West Supp. 2014) (defining "public servant" as a person elected as an officer of government); TEX. CODE CRIM. PROC. ANN. art. 2.17 (West 2005) ("Each sheriff shall be a conservator of the peace in his county, and shall arrest all offenders against the laws of the State ....").

Your question, however, asks for a determination about whether the Wood County Sheriff has engaged in conduct that would violate section 36.08, which is not a question that can be resolved through the opinion process. See Tex. Att'y Gen. Op. No. GA-0760 (2010) at 3. Determining whether the sheriff's conduct constituted an illegal solicitation will depend upon questions of fact. In performing its opinion function, this office is not authorized to investigate allegations of illegal conduct, nor does it have the capacity to resolve disputed issues of fact. See Tex. Att'y Gen. Op. No. GA-0876 (2011) at 1.

SUMMARY

Pursuant to section 81.032 of the Local Government Code, the commissioners court is the proper body to receive and accept donations on the county's behalf. To the extent that members of the public send donations to the sheriff, the sheriff should immediately forward those donations to the commissioners court for proper handling.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] See Letter and Brief from Honorable Jim Wheeler, Wood Cnty. Crim. Dist. Att'y, to Office of the Att'y Gen. Op. Comm. (Aug. 18, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" & "Brief").

[2] See Request Letter, attachment 1 (Wood County Commissioners Court Resolution #14-13, on file with Op. Comm.).

[3] See Request Letter, attachment 2 at 1 (on file with Op. Comm.).