Untitled Texas Attorney General Opinion

May 4,200O

The Honorable Tim Curry Opinion No. JC-0214
Tarrant County Criminal District Attorney
401 West Belknap Street Re: Questions relating to a conflict between the
Fort Worth, Texas 76196-0201 sheriff and commissioners court of Tarrant
County with regard to their respective authority
over budgetary matters (RQ-0144-JC)

Dear Mr. Curry:

You have asked this offtce a series of questions relating to a conflict between the sheriff and
commissioners court of Tarrant County with regard to their respective authority over budgetary
matters. The controversies revolve around the budgeting ofthe Civil/Mental Warrants Division of
the sheriffs office, the commissioners court’s request that the sheriffrelinquish certain vehicles, the
sheriffs deployment of the personnel of his office, the applicability of the county vehicle policy to
the sheriffs office, and the responsibility for setting minimum bid specifications for equipment or
vehicles to be purchased by competitive bidding. We begin with a survey of the relevant statutory
and constitutional provisions, as well as court decisions and opinions of this office which have
touched upon this matter.

The commissioners of a county, and the sheriff of that county, are each constitutional
officers. See TEX. CONST. art. V, $ 18 (establishing commissioners court); id. art. V, 5 23
(establishing office of sheriff). The sheriffs “duties, qualifications, perquisites, and fees of office
[are] prescribed by the Legislature.” Id.; see also Tex. Att’y Gen. LO-98-072, at 2 (“The sheriff is
an independent constitutional officer, with independent rights and duties.“). Pursuant to section
35 1.041 of the Local Government Code, the sheriff is “the keeper of the county jail” and is obliged
“to exercise supervision and control over the jail.” TEX.Lot. GOV’T CODEANN. § 35 1.041 (Vernon
1999). Further, pursuant to article 2.17 of the Code of Criminal Procedure, the sheriff is “a
conservator of the peace in his county.” TEX. CODE GRIM. PROC. ANN. art. 2.17 (Vernon 1977).
Texas sheriffs have “virtually unbridled authority in choosing their personnel, restricted only by
certain basic constitutional considerations. On the other hand, the commissioners court or members
of the court are expressly forbidden to attempt to influence the appointment of any person to an
employee position authorized by the court. The commissioners court may limit the number of
deputies authorized, but it has no power over naming the individuals to be appointed.”
Commissioners Court of Shelby County v. Ross, 809 S.W.2d 754, 756 (Tex. App.-Tyler 1991, no
writ); accord Garcia v. Reeves County, Tex., 32 F.3d 200,203 (5th Cir. 1994); Williams v. Bag&,
875 S.W.2d 808,811 (Tex. App.-Beaumont 1994, no writ).
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However, the general legislative authority ofthe county is in the commissioners court. “The
business of the county is generally conducted by and through the commissioners court, which can
‘exercise such powers and jurisdiction over all county business’ as prescribed by the Texas
Constitution and by statute.” Tex. Att’y Gen. LO-98-072, at 2 (quoting Texas Constitution article
V, 5 18). The commissioners court is “the county’s principal governing body,” and its “powers and
duties include aspects of legislative, executive, administrative, and judicial functions.”
Commissioners Court of Titus County Y.Agan, 940 S.W.2d 77,79 (Tex. 1997). The principal power
of the commissioners court with respect to other county officers like the sheriff is the power of the
purse strings.

One of the statutory powers given the Commissioners Court of Texas
counties, exercisable in that court’s constitutional power over county
business, is the legislative power of budget-making.

The process is political. It combines inextricably the
two legislative powers of ‘taxation’ and ‘appropriation,’ the latter
being a distribution and setting aside of parts of the total available
revenue among the various government functions, operations, and
programs.

Commissioners Court of Caldwell County v. Criminal District Attorney, Caldwell County, 690
S.W.2d 932, 933-34 (Tex. App.-Austin 1985, writ ref d n.r.e.) (emphasis in original).

In carrying out the legislative function of budget-making the commissioners court has
significant freedom of action. “The commissioners court performs a legislative function when it
creates the budget for the county’s offices and departments. This budgetary power carries with it
broad discretion in making budgetary decisions.” Hooten v. Enriquez, 863 S.W.2d 522,528 (Tex.
App.-El Paso 1993, no writ). That decision is not, however, boundless. “If the Commissioners
Court does abuse its discretion, the district court has the power and authority to abrogate such
actions.” Vondy v. Commissioners Court of Uvalde County, 714 S.W.2d 417,420 (Tex. App.-San
Antonio 1986, writ refd n.r.e.) [hereinafter “Vondy Il”]; accord Bomer v. Ector County
Commissioners Court, 676 S.W.2d 662, 665 (Tex. App.-El Paso 1984, writ refd n.r.e.); Randall
County Comm’rs Court v. Sherrod, 854 S.W.2d 914,919 (Tex. App.-Amarillo 1993, no writ).

The district court does not have a right to second-guess the policy decisions of the
commissioners. “The allocation of county funds is a discretionary act of the public officials who
were elected to make such decisions. The district court’s authority extends only to enjoin illegal
expenditures and to situations where the commissioners abuse their discretion. It has no authority
to substitute its judgment for that of these elected officials as to the particular expenditures that
should be made.” Weber Y. City of Sachse, 591 S.W.2d 563, 566 (Tex. App.-Dallas 1979, writ
dism’d); accordBomer, 676 S.W.2d at 665; Vondy II, 714 S.W.2d at 420; Sherrod, 854 S.W.2d at
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923. The standard for overturning an action of the commissioners court is “whether the court acted
without reference to any guiding rules or principles. Another way of stating the test is whether the
act was arbitrary or unreasonable.” Hooten, 863 S.W.Zd at 533.

The commissioners court, therefore, as a body selected by the people and vested with
discretionary authority, has the power to determine the county budget and may thereby influence the
actions of other county officials. However, those other county officials, as independent officers, are
also vested with considerable discretionary authority with which the commissioners court may not
interfere. “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); accord Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, writ denied). A
commissioners court, which sets the budgetary priorities of a county and can decide generally how
much ofthe 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 ofhis 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.

Perhaps the most succinct statement of the relations which ought to exist between a sheriff
and the commissioners court was set down by the Fort Worth Court of Appeals sixty-five years ago,
in another controversy involving the commissioners and sheriff of Tarrant County: “The sheriff is
under as much obligation to conduct his office lawfully as is the commissioners’ court its duties.
Neither is Tarrant County, but each has a bounden duty to the administration of the county affairs.”
Tarrant County v. Smith, 81 S.W.2d 537,538 (Tex. Civ. App.-Fort Worth 1935, writ ref d).

Having summarized the relevant legal principles, we turn to your specific questions. You
ask first: “While it is a truism of county government that the commissioners court should reasonably
fund mandatory duties imposed on the Sheriff and other county officials, what are the guidelines
regarding the depths ofthe cuts that the Commissioners Court may impose?” Letter from Honorable
Tim Curry, Criminal District Attorney, Tarrant County, to Honorable John Comyn, Texas Attorney
General, at 2-3 (Nov. 3,1999) (on tile with Opinion Committee) [hereinafter “Request Letter”]. As
we understand the controversy giving rise to this particular question, the commissioners court has
cut the budgets of a division of the sheriff’s department called the Civil/Mental Warrants Division,
which as its name implies is charged with carrying out the sheriffs statutory duty to serve civil
process. See TEX. Lot. GOV’TCODE ANN. 5 85.021 (Vernon 1999) (sheriffhas duty to “execute all
process and precepts directed to [him] by legal authority.“). In the sheriff’s view, as you tell us,
“these actions have severely compromised his ability to discharge” this duty. Request Letter at 1.
You seek to know then, in effect, to what extent the commissioners court may order cuts in the
budget of this division.

Generally, reductions in budgets of this sort are within the discretion of the court. As we
have pointed out, it is well-settled that the commissioners court has broad authority in the essentially
legislative act of setting the fiscal priorities of the county. See Commissioners Court of Caldwell
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County, 690 S.W.2d at 934; Hooten, 863 S.W.2d at 528. However, there are limits to this authority.
The limits are described by the San Antonio Court of Appeals in Vondy IL “The Commissioners
Court cannot attempt to restrict or abolish a constitutionally established office by refusing to
reasonably compensate the holder of such office. The Commissioners Court also cannot attempt to
abolish or restrict the of$ce of constable by refusing to allow or by preventing the elected official
from performing those duties required of him.” Vondy II, 714 S.W.2d at 422 (emphasis added).

H. T. Vondy, the plaintiffin the above-entitled action, had been elected constable ofprecinct
6 in Uvalde County in 1978. The commissioners refused to set a salary for his office. The Supreme
Court ofTexas, in Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981)
[hereinafter “Vondy f’] held that, pursuant to article XVI, section 61 of the Texas Constitution, the
commissioners were required to set a reasonable salary for his office. See Vondy I, 620 S.W.2d at
108-9. In response, the commissioners court set a salary of $40 per month. The court of appeals
took the view that this salary was unreasonable in light of the statutory duties imposed upon the
constable. See Vondy II, 714 S.W.2d at 421.

The commissioners court argued that it need not use constables to serve process, since
sheriffs could do so. (We note that this argument is the inverse of that of your commissioners who
have “encouraged the district and county clerk to forward civil process to the constables.” Request
Letter at 1.) In the court ofappeals’ view, however, this argument was unavailing: “[T]he delegation
of such duties does not eliminate the obligation of a constable to perform such duties where required
by law to do so or if called upon to do so; nor does it relieve the Commissioners Court from
compensating a constable for other services rendered or which he is obligated to perform.” Vondy
II, 714 S.W.2d at 422.

It might be suggested that Vondy II has in effect been overturned by the decision of the
Supreme Court of Texas in Commissioners Court of Titus County v. Agan, 940 S.W.2d 77 (Tex.
1997). In that case, the court held that, because payroll preparation was not a “core function” of the
county treasurer, the commissioners could transfer such responsibility to the county auditor. “The
Commissioners Court cannot allocate the County Treasurer’s core functions to any other officer,
including the County Auditor. If the Legislature does not specifically assign a duty to the County
Treasurer, that duty is not one of the County Treasurer’s core functions. The Commissioners Court
may, within its discretion, assign those non-core functions to other county officials the Legislature
authorizes to perform those functions.” Agan, 940 S.W.2d at 82. It might therefore be argued, in
this case, that since both sheriffs and constables have some statutory duty to serve process, see TEX.
LOC. GOV’T CODE ANN. &! 85.021 (duty of sheriff), 86.021 (duty of constable) (Vernon 1999),
service of process is not a “core function” of either office, and that Agan has accordingly overturned
Vondy IZsub silentio. While the argument that such service is not a core function may be correct,
it does not necessarily follow that Agan applies either in the Vondy situation or in the instant case.
In Agan, the commissioners could choose whether the duty ofpreparing the payroll be in the hands
ofthe treasurer or the auditor. Here, however, and in Vondy ZZ,the choice of officer to whom process
is directed to be delivered is not made by the commissioners court, but by the district and county
courts. Accordingly, it is still the case that either constable or sheriff may be legally mandated to
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execute such process, and the logic of Vondy II - that the commissioners may not impede another
constitutional officer in the discharge of his duty ~ remains compelling.

After Vondy II, then, the rule in this matter may most succinctly be stated as follows: the
commissioners court, in exercise of its budgetary powers, may take a different view of the
importance of certain functions than an elected officer does, and may therefore budget that officer
less to perform that function than he may request. What, under Vondy II, it cannot do is “prevent[]
the elected official from performing those duties required of him.” Vondy II, 714 S.W.2d at 422.
Whether any particular budget cut is so severe as to meet this standard is a question of fact, upon
which we cannot opine. A district court, were it to consider this matter, could not simply substitute
its judgment as to what constitutes better public policy for that of the duly elected commissioners.
See id. at 420; Bomer, 676 S.W.2d at 665; Sherrod, 854 S.W.2d at 923.

Your second question is whether the commissioners court cm “lawfully require a Sheriff to
relinquish control of any of the Sheriffs office vehicles and associated equipment.” Request Letter
at 2,4. As you explain it, the controversy in this instance derives from the commissioners court’s
desire to reallocate “ten vehicles and associated equipment.” Id. at 4. Further, the commissioners
requested of the sheriff that he turn in one of two vehicles he had assigned to himself. As we
understand it, the sheriff has done so. However, as to the other vehicles, you write that he wishes
“to keep this equipment so that he may reassign other personnel to use the vehicles and the
equipment in continuing to perform civil process service or to perform other official duties of the
Sheriff.” Id.

We do not disagree with your premise that these vehicles, “acquired pursuant to Chapter 262
of the Texas Local Government Code [are not] the property of the office holder.” Id. Certainly the
cars are not the sheriffs personal property. Were he in fact to treat them as his personal property,
your office might have a case against him under section 39.02 of the Penal Code, pursuant to which
it is unlawful for a public servant “with intent to obtain a benefit or with intent to harm or defraud
another [to] intentionally or knowingly misuse[r public property. TEX. PEN. CODE ANN.
5 39,02(a)(2) (Vernon 1994). Moreover, should the commissioners court disagree with the sheriff
about the number of cars his o&e needs, it is-as we shall discuss at greater length further ~ within
its authority to reduce his vehicle budget when it next considers the budget.

However, if the question is whether the commissioners court may substitute its judgment for
that of another constitutional officer in determining how to deploy the resources placed at his
disposal, such a substitution would in our view amount to an invasion of that “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 at 226; accord Abbott v. Pollock, 946
S.W.2d at 517. This office has previously opined that a commissioners court may not forbid the
sheriff, as keeper ofthe jail, to serve Folger’s coffee and Mrs. Baird’s bread to the inmates. See Tex.
Att’y Gen. LO-96-017. For the same reason, we do not think that it may micro-manage his
deployment of the fleet of cars placed at his disposal.
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Nor are we persuaded by your argument that section 262.011(j) of the Local Government
Code gives the county purchasing agent, with the approval of the commissioners court, “the power
to determine the appropriate user of county personal property.” Request Letter at 5. Section
262.01 l(j) reads:

To prevent unnecessary purchases, the county purchasing agent, with
the approval of the commissioners court, shall transfer county
supplies, materials, and equipment from a subdivision, department,
officer, or employee of the county that are not needed or used to
another subdivision, department, officer, or employee requiring the
supplies or materials or the use of the equipment. The county
purchasing agent shall furnish to the county auditor a list of
transferred supplies, materials and equipment.

TEX. Lot. GOV’T CODE ANN. $262.01 l(i) (Vernon Supp. 2000) (emphasis added).

We read this provision as authorizing a method by which the purchasing agent may transfer
unused county property to another part of county government so that new purchases need not be
made when, in effect, the very same items are sitting in storage. Your argument, on the other hand,
would appear to be that the statutory reference to supplies “that are not needed or used” gives the
purchasing agent an effective veto power over the decision of other county officers as to whether and
how they use such supplies and equipment as have previously been allocated to them in the budget
process. You cite no authority for this proposition, and our research has revealed none.

You next ask whether, the commissioners court having set the number of positions in the
sheriffs oftice for a given budget year, the sheriff is authorized to decide to deploy such personnel.
See Request Letter at 2, 5. It follows from our prior discussion that the sheriff has such discretion
and that the commissioners court has no general power to countermand his decisions in this regard,
short of applying to the district court for a writ of mandamus if the sheriff abuses that discretion.
This office has recently concluded that “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.” Tex. Att’y Gen. Op. No. JC-0125 (1999) at 3-4. Such discretion is of course bounded by
statutes, as you note, “relating to pay and overtime and other general laws relating to public
employees.” Request Letter at 8. Thus the actions of the sheriff arc subject to review for abuse of
discretion, but “not merely because of a dispute between public officials regarding the
reasonableness of the actions.” Id.

Your next series of questions concerns the commissioners court’s refusal to order certain
replacement vehicles allocated to the sheriffs offlice until the sheriff complied with a county vehicle
policy requiring him to turn in vehicles no longer allocated to this office. You ask, in effect, whether
the commissioners may require the sheriff to comply with the rule that he must turn in an old vehicle
for each new vehicle he receives, and whether, should he refuse to do so, the commissioners may
The Honorable Tim Curry - Page 7 (X-0214)

refuse to purchase such replacement vehicles. See id. at 2, 9. In this instance, we think the
commissioners may do so.

As you describe the county vehicle policy, it “requires the Sheriff (as it requires all
department heads) to relinquish possession of a currently in-use vehicle on the same day that his
office takes possession of its replacement, the result being that the department will never be in
possession of more vehicles than are authorized by the currently effective county budget and the
current vehicle allocations.” Request Letter at 10. As we have previously noted, in the legislative
act of budget-making the commissioners court has significant freedom of action. See Hooten, 863
S.W.2d at 528. If the commissioners could not require the surrender of vehicles when their
replacements were received, a department would at the end of the process have more cars than the
court had allocated, thus rendering the budgetary power of the commissioners court illusory.

Moreover, the general power to make contracts binding upon the county belongs to the
commissioners court. See Tex. Att’y Gen. Op. No. DM-1 1 1 (1992) at 2. The power to purchase the
cars is, like the rest of the court’s powers in the initial allocation of county resources, discretionary.
Part of that discretion, we think, is a power to decide that a particular purchase may not be necessary.
As you point out, pursuant to section 111.093(d) of the Local Government Code, a “requisition,
contract, or allocation [may be] canceled in writing by the commissioners court or a county officer
for a valid reason.” See TEX. LOC. GOV’T CODE ANN. § 111.093(d) (Vernon 1999). We think it
likely that a court would find it “a valid reason” to cancel such a requisition that a particular county
officer already had the equipment he had been allocated.

You ask finally whether the sheriff or another elected official may set minimum bid
specifications for equipment or vehicles to be purchased by competitive bidding. See Request Letter
at 2, 11. He may not. As you point out, section 262.023 of the Local Government Code vests the
duties of complying with the competitive bidding statute in the commissioners court. See TEX. LOC.
GOVT. CODE ANN. 5 262.023 (Vernon Supp. 2000). This is consistent with the general budgeting
and contracting authority of the court. Certainly in deciding what vehicles and equipment to
purchase, whether by competitive bidding or by any other method, the commissioners court may
wish to consult with the officer who will finally use such equipment. He may doubtless advise the
commissioners as to what, in his judgment, will best allow him to fulfill his duties. But the
commissioners court is not obliged to agree with that officer’s views in this regard. It is for the
court, in the reasonable exercise of its discretion, to decide what the county will purchase.
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SUMMARY

The commissioners court of a county, in the exercise of its
authority to set a county budget, may take a different view of the
importance of certain functions than does an elected officer and may
budget that officer less money to perform that function than he
requests. It may not prevent him thereby from performing his
statutorily mandated duties. However, in determining whether the
commissioners court has abused its discretion in this regard, the
district court may not substitute its view of sound public policy for
that of the commissioners.

While vehicles allotted by the commissioners court to an
elected county officer are county property rather than the property of
the officer, once such resources have been allocated to an elected
officer the commissioners may not substitute their judgment as to the
deployment of those resources for the ofticer’s.

The commissioners court having set the number of positions
in a county office for the budget year, discretion as to how to deploy
such manpower belongs to the officer.

A county vehicle policy requiring a county officer to
relinquish control of vehicles in use when he takes possession oftheir
replacements is a budgetary safeguard within the discretion of the
commissioners court. Accordingly, should the officer refuse to
comply with the policy, the court may refuse to provide the
replacement vehicles.

The power to set minimum bid specifications for equipment
or vehicles to be purchased by competitive bidding resides in the
commissioners court. The court may wish to consult with the officer
who will ultimately use such equipment, but is not obliged to agree
with the officer’s views in this regard.

Attorney General of Texas
The Honorable Tim Curry - Page 9 (X-0214)

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee