To:

Harris County Attorney Vince Ryan and First Assistant Robert Soard

From:

Jorey Herrscher

Re:

Harris County Precinct 4 Contract Deputy Program

Date:

Monday April 4, 2016

Cc:

Harris County Precinct 4 Constable Mark Herman

Executive Summary
After a review of the records provided by Harris County Precinct 4 Constables Office in
relation to its Contract Patrol Program, our Office has determined based on such records that; 1)
Harris County Precinct 4 is not in breach of any contracts with any of the associations and is not
liable for any damages under those agreements; 2) there was a period of time where a shortage of
personnel resulted in various contracts not receiving patrol services as frequently as expected; 3)
at least two employees knew of the problem and failed to report it up the chain of command; 4)
measures have been taken to remedy the relevant issues and to insure that the same or similar
problems will not occur in the future.
Summary
In December 2015, Harris County Precinct 4 Constable Mark Herman was contacted by a
former Precinct 4 employee who alleged that there may have been some mishandling of contracts
in the Precinct 4 Contract Deputy Program.

In reaction to those allegations, Constable Mark Herman ordered an internal audit of the
Contract Deputy Program.

Constable Herman requested that the Harris County Attorneys

Office review the Contract Program and the findings of the Constables Office.
Contract Deputy Program History
Beginning in the 1980s Harris County developed a Contract Deputy Program, officially
called the Contract Patrol Program (CPP), which allows for private associations to contract
with a Harris County law enforcement agency for regular patrol assignments. These contracts
have been determined to be constitutional so long as (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.1 To assure compliance with the Texas Constitution, a contract must
not cede county law-enforcement discretion to the nongovernmental association2.
All eight Harris County Constables Precincts and the Harris County Sheriffs Department
participate in CPPs. The contractual relationship between the County and the associations benefit
the associations, the police agencies and the residents of Harris County. First, CPPs provide
deputies who are in close proximity to certain residential areas, school districts, or other
specialized areas.3 These deputies, maintain faster response time to calls for service within their
assigned areas.4 Second, deputies assigned to an area become familiar with the neighborhood and
1

Tex. Atty Gen. Op. No. GA-0553 (2007).

Id.

Harris County Attorneys Office, REPORT ON GUIDANCE PROVIDED TO CONSTABLES,

http://dig.abclocal.go.com/ktrk/PICS/APRIL12/ConstablesGuidance.pdf

Harris County Constable Precinct 5, PATROL, http://www.constablepct5.com/patrol/

its residents, which allow them to better identify unusual or suspicious activity that may occur
while these officers are on duty.5 Third, consistent high visibility of a deputy and distinctively
marked patrol cars serve to deter criminal activity. 6 CPPs provide additional protection through
vacation watches and special watches for residents who may be out of town or have particular
problems that need to be addressed.7 Vacation watch or special watch information is sent to the
deputies so they are aware that certain residents are not home and can make periodic checks on
residences while homeowners are away.8 CPPs also deter crime significantly in the areas where
these deputies patrol.9
Constable Herman reports that an entire subdivision, district, or school campus can
become safer as a result of the patrolling that occurs because of the CPPA. CPPs enhance not
only the safety of the neighborhoods or associations that pay for the extra protection but the
public safety of all people throughout Harris County by putting more officers on the streets.
These patrol contracts are made pursuant to Section 351.061 of the Local Government
Code, which states: To protect the public interest, the commissioners court of a county may
contract with a nongovernmental association for the provision of law enforcement services by
the county on a fee basis in the geographical area represented by the association.

Constable Alan Rosen-Harris County Constable Precinct 1, CONTRACT PATROL,

http://pct1constable.net/divisions/patrol/contract-patrol/

PATROL, http://www.constablepct5.com/patrol/

See id; see also CONTRACT PATROL, http://pct1constable.net/divisions/patrol/contract-patrol/

Id.

PATROL, http://www.constablepct5.com/patrol/

Section 351.061 was enacted in 1987 with the stated purpose to allow associations to
contract with law enforcement agencies to provide additional police personnel to protect the
public interest.10 The use of these agreements to furnish law enforcement services has become a
common practice throughout the State of Texas, and particularly in Harris County.
In accordance with Section 351.061, Harris County Constable Precincts and the Harris
County Sheriffs Department enter into agreements with non-governmental associations to
provide law enforcement services in the geographical area covered by the association. These law
enforcement agreements which allow for the provision of additional police personnel to various
associations throughout Harris County are referred to as Contract Patrol Program Agreements
(CPPA).
Section 351.061 allows an elected law enforcement official contract with nongovernmental associations while retaining the authority to supervise the deputies who provide
the services and to, in the event of an emergency reassign the deputies to other duties other
than those provided for under the contract.11 CPPAs specifically provide that a deputy has no
duty or obligation to the Contractor or the residents of said area other than those duties and
obligations which the [Elected] Officers deputies have the public generally.12
As a result, deputies performing services under CPPAs remain county employees under
the control of the elected county officialnot the private entityhave no obligation to devote a
specific amount of time to the Contractor, and must perform their duties under the contract in the

10

Tex. Loc. Govt. Code Ann. 351.061 (West 2015).

11

Tex. Atty Gen. Op. No. GA-0553 (2007).

12

Cnty. Atty. Op. No. 19,719 (1985).

same manner as they would if there were no contract.13 The structures of CPPAs ensure that
deputies maintain flexibility, which allows them to provide protection and safety to the public at
large, rather than to function as guardians of private property in residential areas. Because
CPPAs provide additional law enforcement to the public over and above that which could be
funded from traditional sources, and because the security provided under these agreements
benefit the public, CPPAs formed pursuant to section 351.061 are in accordance with the Texas
Constitution.14
CPPs provide a means to furnish officers to neighborhoods and subdivisions that want or
need additional patrol services to supplement existing law enforcement services. Agreements
similar to CPPAs are also executed between Harris County law enforcement agencies and
governmental entities, such as Municipal Utility Districts or school districts, to provide
additional officers and patrol services in accordance with Chapter 791 of the Local Government
Code.
CPPAs provide additional deputy positions throughout the county. These positions allow
for the contracting association to pay 70, 80 or 100% of the salary of a deputy, with Harris
County covering the unpaid portion of the salary, if any, for that deputy.
An additional 835 total peace officers are supplied by CPPAs. In Precinct 1, there are 46
contract officers. In Precinct 2, there are 17 contract officers. In Precinct 3, there are 58 contract
officers. In Precinct 4, there are 263 contract officers, in In Precinct 5, there are 136 contract
officers. In Precinct 6, there are 36 contract officers. In Precinct 7 there are 21 contract officers.

13

Tex. Atty Gen. Op. No. GA-0553 (2007).

14

See id.

Lastly, at the Sheriffs Office, there are 258 contract officers. The total revenue brought into
Harris County from employing these officers is $60,771,480.00.
The breakdown of those numbers is as follows:

Department
Precinct 1
70%
80%
100%
Precinct 2
70%
100%
Precinct 3
70%
100%
Precinct 4
70%
80%
100%
Precinct 5
70%
80%
100%
Precinct 6
80%
100%
Precinct 7
70%
80%
Sheriff
70%
80%
100%
Grand Total

Monthly
Annual
No. of
No. of
No. of
Sum
Sum
Deputies Sergeants Lieutenants
301,567
3,618,804
44
2
29,505
354,060
3
1
263,031
3,156,372
40
1
9,031
108,372
1
113,679
1,364,148
15
2
56,684
680,208
9
1
56,995
683,940
6
1
357,784
4,293,408
50
7
1
315,740
3,788,880
47
5
1
42,044
504,528
3
2
1,528,326 18,339,912
232
26
5
1,310,976 15,731,712
208
21
5
6,395
76,740
1
210,955
2,531,460
23
5
853,900 10,246,800
121
15
402,387
4,828,644
61
7
401,475
4,817,700
56
6
50,038
600,456
4
2
240,820
2,889,840
31
4
1
216,838
2,602,056
28
4
1
23,982
287,784
3
163,107
1,957,284
20
1
27,979
335,748
5
135,128
1,621,536
15
1
1,505,107 18,061,284
255
3
1,474,730 17,696,760
250
3
6,395
76,740
1
23,982
287,784
4
$5,064,290 $60,771,480
768
60
7

Total
46
4
41
1
17
10
7
58
53
5
263
234
1
28
136
68
62
6
36
33
3
21
5
16
258
253
1
4
835

Harris County Precinct 4 Contract Patrol Program

All CPPAs in Harris County are approved by Commissioners Court and are drafted to
meet constitutional and statutory requirements. The Harris County CPPA contracts include
provisions similar to the following:
2.1 The County agrees to authorize the Constable/Sheriff to provide 3 deputies to
devote seventy percent (70%) of their working time to provide law enforcement
services related to the Associations geographical area (the "area"), as further
defined in Exhibit "A", attached hereto and made a part hereof. "Law enforcement
services" include, but are not limited to, patrolling, preparing reports, appearing in
court, investigating crimes, arresting persons, and transporting suspects.
2.2 As used herein, the phrase "working time" is defined as follows: the usual or
normal hours that the Constable/Sheriffs deputies are required to work in any
calendar month and does not include any extra or overtime work. "Working
Time" shall not include vacation or sick leave, and thus, it is not anticipated that
the Constable will authorize substitute deputies to work within the area when the
regularly assigned deputies are not available; but it is understood that the
consideration for services, as set forth below, includes a share of the costs to the
County for such times when the deputies are not available. The aforementioned
costs are part of the overall cost to the County for providing the "law enforcement
services" since vacation or sick leave are benefits that are earned through such
services.
2.3 The Constable shall retain control and supervision of the deputies performing
services under this agreement to the same extent as he does other deputies. The
District understands and agrees that this Agreement is not intended, nor shall it be
construed, to obligate the Constable to assign deputies to devote any portion of
their working time to the area.

If any association is not satisfied with the services provided by the Sheriffs Office or the
Constables Offices in Harris County, their remedies are as follows:
4.3 If the Association is dissatisfied in any way with the performance of the
County, the Sheriff/Constable or the deputies under this Agreement, the
Associations sole remedy is termination under Section 4.4.
4.4 Either party may terminate this Agreement prior to the expiration of the term
set forth in this Agreement, with or without cause, upon thirty (30) days prior
written notice to the other party. The County will submit an invoice to the District
showing the amounts due for the month in which termination occurs. The District
agrees to pay the final invoice within ten (10) days of receipt.
4.5 If this Agreement is terminated at any time other than at the end of a contract
month, the monthly installment or payment for such contract month will be
prorated, less any expenses incurred by the County.
4.6 In the event the Constable informs Commissioners Court and the District in
writing that due to position vacancy or elimination occurring on or after March 1,
2015, the Sheriff/Constable cannot or will not provide 3 deputies to devote
seventy percent (70%) of their working time to provide law enforcement services
related to the District's geographical area, and provided that the District has
prepaid its sum and further provided that such notice from the Constable identifies
that such vacancy or elimination was of a position that served or facilitated
service to the District, the District shall receive a refund equal to the number of
days between the date of the Constable's notice and a subsequent meeting of
Commissioners Court at which Commissioners Court amends or terminates the
Agreement.
In order for the CPPs to remain constitutional, they must accomplish a public purpose
and benefit the public rather than promote private entity interests 15 and a contract must not
cede county law-enforcement discretion to the nongovernmental association16. In order for there
to be a contract for a peace officer to patrol private property without promoting private entity
15

See Tex. Atty Gen. Op. No. GA-0553 (2007).

16

Id.

interests, the contract language must allow for a peace officer to perform his statutory duty
without constraint. What that means, practically speaking, is that a deputy assigned to a CCP
must be allowed to respond to 911 calls outside of the area defined in the agreement for as long
as necessary to respond to that 911 call. This means that, on occasion, a peace officer will not be
in his contract area for a portion of his shift, including a majority portion on some occasions. A
refund is only available if there is not a deputy assigned to a contract. This provision does not
apply to a contract where a deputy has been assigned to the contract, but is out due to injury,
illness, vacation, on duty training, response to a 911 call or a similar situation.
Precinct 4 has 33 deputies assigned to regular District patrol and 263 deputies assigned to
approximately 94 CPPs. In other words, approximately 88% of Precinct 4s patrol force exists
as a result of the Deputy Contract Program.
An examination of the records indicated that during 2015 there were CPPAs where new
deputies were hired to fill contract positions, and the deputy trainee was assigned into the
departments mandatory field training program. The effect of hiring new deputies for these
positions was that the contracts did not have their assigned deputy patrolling while he/she was
being trained for duty. It was determined that the cause of the personnel shortage was due to
normal attrition, illness, injury and mandatory training for new peace officers. Although there
were times where a deputy was unavailable to patrol a contract for an entire 8 hour shift, each
contract had a deputy assigned to work the contract.
Multiple contracting entities were affected at some point during the field training process
of the newly hired deputies. In order to maintain a police presence in all CPPA defined areas,
resources were moved around and additional resources were assigned to cover those areas. As a

result of the assignment of these additional resources the Constables Office has met the goals
under all affected contracts as of the date of this report with the exception of Atasca Woods. This
Association requested that additional patrols cease pending the results of the audit, although it
was within the ability of Precinct 4 to meet this goal as well. While in this instance the goal was
not met, the contract was not breached and a refund is not warranted.
The following is a chart of all Precinct 4 contracts indicating whether that contract was
affected by the shortage of personnel:

CONTRACT NAME

ASSOCIATION
AFFECTED

ATASCA WOODS

YES

AUBURN LAKES

NO

BLUE CREEK HOA

YES

BRIDGESTONE MUD

YES

CHAMPION FOREST
CHARTERWOOD
MUD

YES

CUTTEN GREEN

NO

CY-CHAMP

NO

CYPRESS HILL MUD 1

YES

CYPRESSDALE

NO

DOWDELL PUD

YES

ENCANTO REAL UD

NO

ENCHANTED OAKS

NO

NO

10

FAIRFIELD
FAULKEY GULLEY
MUD

YES

FOREST NORTH

NO

FOUNTAINHEAD
GLEANNLOCH
FARMS

NO

GREENGATE PLACE
GREENTREE
VILLAGE
GREENWOOD
FOREST

YES

HARVEST BEND
HARVEST BEND THE
VILLAGE

NO
YES

HC MUD 1

YES

HC MUD 106

YES

HC MUD 154

YES

HC MUD 18

NO

HC MUD 191

NO

HC MUD 200

YES

HC MUD 221

YES

HC MUD 26

YES

HC MUD 281

NO

HC MUD 282

NO

HC MUD 286

NO

HC MUD 368

YES

NO

NO

NO
NO

11

HC MUD 391

YES

HC MUD 401

NO

HC MUD 412

NO

HC MUD 43

YES

HC MUD 69

NO

HC MUD 82

YES

HC UD 16

NO

HC WCID 110

YES

HC WCID 136

YES

HC WCID 92

YES

HEATHERLOCH MUD

NO

HUNTERS GLEN

YES

KLEINBROOK

YES

KLEINWOOD MUD
LAKEWOOD FOREST
FUND

NO
YES

LAKEWOOD GROVE

NO

LEXINGTON WOODS

NO

MEADOWHILL MUD
MEADOWVIEW
FARMS

YES

MEMORIAL HILL

NO

MILLS ROAD MUD

YES

NORCHESTER

YES

NO

12

NORTHAMPTON
NORTHGATE
CROSSING MUD 1
NORTHGATE
CROSSING MUD 2
NORTHWEST FRWY
MUD

NO
NO
YES
NO

NW HC MUD 5

YES

NW HC MUD 28

NO

NW HC MUD 36
OAKS OF
DEVONSHIRE

NO

PONDEROSA FOREST

YES

POSTWOOD

YES

POSTWOOD MUD
PRESTON WOOD
FOREST

NO

RANKIN ROAD MUD

NO

REID ROAD MUD

YES

ROLLING FORK

NO

RUSHWOOD
SPRING CREEK OAK
CIA

NO

SPRING WEST MUD

NO

TATTOR ROAD MUD

NO

TERRANOVA

NO

TIMBERLANE MUD
TRAILS OF THE
LAKE MUD

YES

NO

NO

NO

YES
13

WALDEN ON LAKE
HOUSTON
WIMBLEDON
ESTATES

YES
NO

WINDFERN FOREST

YES

WINDROSE

YES

WOODCREEK
WOODLANDS
TOWNSHIP

NO
NO

In response to the aforementioned findings, safeguards have been put into place in an
effort to avoid repeating these and similar problems.
First, Constable Herman discovered that a Captain with the Agency knew of the issue and
failed to report those issues up the chain of command. That employee has been disciplined.
Second, the mandatory reporting policy has been altered so that all information regarding CPPAs
is reported to the Assistant Chief Level. Any issues discovered by the Assistant Chief are to be
reported immediately to the Constable. And finally, the audit revealed an error in software
coding which prevented effective communication between two pieces of reporting software. The
coding error helped conceal the underlying problem. The coding problem has been resolved.
Although under the terms of the contract, Constable Precinct 4 was neither in breach of
contract, nor obligated to make up any hours to the associations, Constable Herman sought to
maintain his Offices relationship with the associations and their residents. From December
2015 through March 2016, Constable Herman assigned additional police resources to the CCPs
affected in an effort to demonstrate his commitment to those associations.

14

Constable Herman reports: The Office of Constable Precinct 4 works with homeowners
associations, utility districts, and local residents to ensure that all residents of Precinct 4 receive
the best law enforcement services we can deliver. If a homeowners association or a utility district
has a concern with the county or the precinct about a constable patrol contract, we will work with
the association to resolve any issues.

15

A.rtonNBv GrNeRel oF

TEXAS

GREC AB30TT

July 9, 2007

The Honorable D. Matt Bingham

Smith County Criminal District Attomey
Smith County Courthouse
100 North Broadway, 4th Floor

Tyler, Texas 75702

Opinion No. GA-0553

Re: Whether a county may constitutionally contract

under Local Govemment Code section 351.061 to
provide a nongovemmental association with a
constable offi ce' s law-enforcement services provided
the contract (1) allows the constable to retain control
and supervision of the constable's officers and (2)
does not obligate the constable to assign officers to
devote any portion of their working time to the
nongovemmental association (RQ-0559-GA)

Dear Mr. Bingham:

You ask whether, under Local Govemment Code section 351.061, a county may
constitutionally contract to provide a nongovemmental association with a constable office's lawenforcement services ifthe contract ( I ) allorvs the constable to retain control and supervision ofthe
constable's otficers and (2) does not oblige the constable to assign officers to devote any portion of
their working time to the nongovernmental association.l

l.

Background

You relate that a Smith County constable proposed a contract to the commissioners court
rvhereby the county rvould provide constable law-enforcement services to a private entity, an
apartment complex, for a fee. ,See Request Letter, supra note l, at 2.2 You state that the proposed
contract is based on "the ostensible authority of section 351 .061 of the Local Govemment Code,"
rvhich concems fee-based law-enforcement services. Request Letfer, supra note 1, at l-2. From
your review of two prior attorney general opinions, JM-57 and JM-509, you advised that section
3 5 1.061 ofthe Local Govemment Code is unconstitutional, and any agreement to provide fee-based

r.tee

Lefter fiom Honorable D. Man Bingham, Smith County Criminal Dist ct Aftomey, to Honorable Creg
Abbott, Aftorney General ofTcxas, at I (Dec. 22, 2006) (on tile with the Opinion Cornlninee, a/so dtailable athftp'll
www.oag.state.tx-us) [hereinatier Request Letterl.
:See

a/so

Exlibit A attached io Request Letter,.ruprd note l, at l-6 (proposed contract) [hereinafter Exhibit A].

The Honorable D. Matt Bingham

Page

(GA-0ss3)

county law-enforcement services to a private entity would be void. See id. at 3-7.1 In Attomey
General Opinions JM-57 and JM-509, this office addressed county authority to provide law
enforcement to private entities by contract, voicing concems about the constitutionality of such
contracts under Texas Constitution article III, section 52 (prohibiting certain public grants to private
entities) and article III, section 1 (prohibiting certain delegations oflegislative power). See generally
Tex. Att'y Gen. Op. Nos. JM-509 (1986), JM-57 (1983); see 4/so TEx. CoNsr. art. III, gg t, 52.

After you advised the commissioners court against the proposed contract, you leamed that
itwas"basicallyidentical"tocontractsusedinotherTexascounties.,SeeRequestLettet,suprsnote
l, at 2. Ofparticular interest, the proposed contract provides:
The Constable shall retain control and supervision of the offrcers
performing services under this agreement to the same extent as he
does other officers[; the nongoverffnental entity] understands and
agrees that this Agreement is not intended, nor shall it be construed,
to obligate the Constable to assign officers to devote any portion of
their working time to the area. If the [nongovemmental entity] is
dissatisfied in any way with the performance of the County, the

Constable

or their

olficers under this Agreement,

nongovemmental entity's] sole remedy is termination . . .

[the

Id. at 2-3i see a/so Exhibit A, supra rlote 2, at 2 (section 2.3). You ask rvhether such a provision
would obviate the constitutional concems identified in JM-57 and JM-509. See Request Letter,
supra note 1, at 7. While in general we do not construe particular contracts, we may address broad
principles oflawapplicable to apublic entity's contracting authority. See generallyTex. Att,y Gen.
Op. No. GA-O176 (2004) at 2 (attomey general opinions do not construe contracts, but may..address
a public entity's authority to agree to a particular contract term, if the question can be answered as
a matter of law").

II.

Chapter 351, Subchapter D of the Local Government Code

To address the constitutionality of section 351.061, we must first examine the terms ofthe
Legislature's grant ofauthority in rhat section and related provisions in chapter 351, subchapter D
ofthe Local Govemment Code. section 351.061 provides: "To protect the public interest, the
commissioners court ofa county may contract with a nongovernmental association lor the provision
of law enforcement services by the county on a fee basis in the geographical area represented by the
association." TEx. Loc. Gov'r CoDE ANN. $ 351.061 (vemon 2005).a The fee must be paid to

the county generally rather than to any particular office or

officer. &e rri. $ 351.062(b).

The

rSee

a/so Exiibit B attached to Request Letter, s,/p,,a note l, at l- 6 (legal memorandum to commissioners coun
dated Sepi 22, 2006) [hereinafter Exhibia B]. You inform us that the commissioners court waived any privilege
concerning your legal memorandum. .te Request Letter, J upra note l, at 2.

rTte Local Government Code

ofthat term

has

does not define "nongovernmental association." However, the exact meaning

no bearing on the constitutional questions you pose.

The Honorable D. Matt Bingham

Page

(GA-0ss3)

commissioners court may request the sheriff, aconstable, or another countv law-enforcement official
to provide the services, limited to "the geographical area for which the official was elected or
apfointed."
$ 351.063. If the official agrees to provide the services by using deputies, the
official "retains authority to supervise the deputies who provide the services and, in an emergency,

li.

may reassign the deputies to duties other than those to be performed under the conlract." Id.
the
$ 351.06a(a). Such a deputy remains a county employee, and must "perform duties under
of
the
the
absence
duties
in
performing
the
iontract in the same manner as if the deputy were

contract." 1d $ 351.064@(c).

III.

Article IU, Section 52 of the Texas Constitution

Attomey General opinion JM-57, which opined broadly that a "county may notcontract with
a homeou.ners association to provide law-enforcement protection by county peace officers," was
issued prior to the enactment oflocal Govemment Code section 351.061. Tex. Att'y Gen. Op. No.
JM-57 (1983) at7; see id. at 1 (stating that "no statute extant . . . purports to authorize such
contracts"); see a/so Tpx. Loc. Gov',r CoDE Ar.{N. $$ 351.061-.067 (Vemon 2005) (subchapter D);
Act of May 20, 1985, 69th Leg., R.S., ch. 219, S 1985 Tex. Gen. Laws 1082' 1082-83
(promulgating article 158 i b-2, of the Revised Civil Statutes); Act of May I , 1987, 70th Leg., R S',
ch. 149, $ l, secs. 351.061-.067, 1987 Tex. Gen. Laws 707,114647 (tecodifuing article l58l-2's
provisions into the Local Govemment Code as chapter 351 , subchapter D). As you note, however,
ihe opinion raises public policy concems and questions the constitutionality ofsuch contracts under
articie III, section 52(a) ofthe Texas constitution. see Request Letlet, supra note 1, at 4-5; Tex.
Aft'y Gen. Op. No. JM-57 (1983) at 6.'

l,

political
subdivision"tolenditscreditortogtantpublicmoneyorthingofvalue.",SeeTEX.CONST.art. III,
g 52(a);.ree also Grimes v. Bosque County,240 S.W.2d 5l l, 514 (Tex. Civ. App'-Waco 1951,
writ reld n.r.e.) (holding that article III, section 52 of the Texas Constitution prohibits a
commissionen court from making an expenditure solely to benefit an individual). The provision
,,gratuitous
to individuals, associations, or corporations." Tex. LIun. Leagre
prohibits
'lntergoverimenral payments
Risk Pool v. Tex. Workers'Comp. Comm'n,74 S.W.3d 377, 383 (Tex' 2002)'
A political subdivision's conveyance of a thing of value "is not 'gratuitous' if the political
subdivision receives return consideratioo." Id.i see also Tex. Att',y Gen. Op. No. GA-0480 (2006)
at 2 (stating that a(icle III, section 52(a) "is not violated if the public receives consideration lbr
granting a thing ofvalue").
Article III, section 52(a)prohibits the Legislature from authorizing

a county or other

Moreover, article III, section 52(a)'s purpose is "to prevent the application of public
(Tex. 1928). But an
[property] to private purposes." tsyrd v. City of Dallas,6 S.W.2d 738,740
if it is made to
is
not
unconstitutional
private
entity
eipenditure that incidentally benefits a

,The specific concem addressed in Attomey General Opinioo JM-57 in the context ofafiicle III, secrion 52(a)
rvas whether a iee-based contract for counry law-enforcement services rvould adequately compensate a county for the
See Tex. Att'y Gen Op. No, JM-57 (1983) at 6, This office
"county's nam, special authority, and . . . 'good will
Court's
formulation ofthe thIee-part test for article ll[, section 52(a).
issued bpinion JM-57 prior to the Texas Supreme

"'

The Honorable D. Matt Bingham

Page 4

(GA-0s53)

accomplish a legitimate public purpose. See Walker v. City of Georgetown, S6 S.W.3d 249, 260
(Tex. App.-Austin 2002, pet. denied). The public-purpose exception is satisfied if (l) the
predominant purpose is to accomplish a public purpose, rather than benefit a private party; (2) the
public entity retains sufficient control to ensure accomplishment ofthe public purpose; and (3) the
public receives a retum benefit. See Tex. Mun. League,14 S.W.3d at 384.
State law independent of any contract establishes a county's authority to provide lawenforcement services anywhere in the jurisdiction of its officers. See, e.&, TEx. CoDE CRIM. PRoc.
ANN. arts.2.l2(1H2) (Vemon Supp.2006) (establishing sheriffs, constables, and their deputies as
peace offrcers); 2.13 (Vemon 2005) (imposing duty on "every peace officer to preserve the peace
within the officer's jurisdiction"); 2.17 (designating sheriff as the conservator of the peace in the
sheriffs county). Thus, it is diffrcult to envision a contract to provide such services to a private
entity in which the public purpose predominates. However, we cannot conclude as a matter of law

that no contract under section 351.061 could make the accomplishment of a public purpose its
predominant purpose. Chapter 3 51, subchapter D does not on its face violate article III, section 52(a)
of the constitution.
Nevertheless, we stress that to comply with article III, section 52(a), a commissioners court
authorizing a contract under section 351.061 must determine, subject to judicial review, issues of
the contract's purpose, govemrnental controls, and govemmental benefit. See Trx. LoC. Gov'T
CoDE ANN. $ 351.061 (Vemon 2005) (granting commissioners courts authority to contractually
provide county law-enforcement services "[t]o protect the public interest"); see ci.ro Tex. Att'y Gen.
Op. Nos. CA-0480 (2006) at 2-3 (advising that sheriffhas discretion to allow deputies to use county
law-enforcement vehicles during off-duty employment consistently with article III, section 52(a) of
the constitution, subject to judicial review), GA-0088 (2003) at 5-6 (determining that article lII,
section 52(a) requires a commissioners court to determine in good faith that a grant serves a public
purpose and to place sufficient controls on the transaction so that the purpose is carried out).

IV.

Article III, Seclion I of the Texas Constitution

In Attomey General Opinion JM-509, this office determined that (l) articte l58lb-2 of the
Revised Civil Statutes-the predecessor of chapter 351, subchapter D--delegated legislative
discretion to a private entity to control the deployment of law-enforcement resources and (2) such
a delegation violated the nondelegation principles expressed in article III, section I of the Texas
Constitution. See Tex. Att'y Gen. Op. No. JM-509 (1986) at 2.6 The Supreme Court of Texas has
explained that under article III, section 1, the Legislature may delegate authority to a private entity
only ifthere is protection against the entity's arbitrary exercise ofpower. See Proclor v. Andrews,
972 S.W.2d 729,735 (Tex. 1998). The court has distilled eight factors that arc pertinent to the
('Attomey

General Opinion JM-509 also concluded that article 1581b-2 was a delegation in violation ofthe
separation of powers provision in article I[, section I of the Texas Constitution. See Tex. Aft'y Gen. Op. No. JM-509
(1986) at 4. The Supreme Court ofTexas has since explained, however, that the constitutional prohibition against
delegating governmental authority to a private entity does not derive fiom article ll, section I oithe Texas Constitution.
See Prc)ctor v. ,1ndretvs,9'12 S,W .2d'129,732-i 3 (Tex. 1998). Rather, the coun instructed that a purported delegation
ofgovemmental authority to a private entity should be analyzed under article lll, section I ofthe constitution. .9ee id,
at 713.

The Honorable D. Matt Bingham

Page

(GA-0553)

constitutionality ofa delegation to a private entity, including the availabitity of meaningful review
ofthe private delegate's decisions, the potential for conflict between the delegate's personal interest
and its public function, and the existence of sufficient legislative standards to guide the private
delegate. See id.; see also Tex. Boll lleevil Eradication Found.,lnc. v. Lewellen,952 S.W.2d 454,
472 (Tex. 1997).
But before it is necessary to examine a statute under Bol/ lleeyil standards, it first must be
determined whether the statute in fact delegates power to a private entity . See Tex. Workers' Comp.
Comm'nv. Patient Advocates of Tex.,136 S.W.3d 643,654 (Tex. 2004). In JM-509 this office
construed article l58l b-2 ofthe Revised Civil Statutes as necessarily allowing "a private association
to control the sheriffs discretion to deploy his deputies." Tex. Att'yGen. Op. No. JM-509 (1986)
at 2, The opinion frrther explained:

Under a contract authorized by article

l58lb-2...

nongovemmental bodycould insist that deputies assigned to patrol its

property remain there, even if the public interest would be better
served by their deployment elsewhere. The statute is not a legislative
limit on the sheri{Ps discretion, but a legislative attempt to authorize
a private entity to control the sherift's discretion. . . . No statutory
controls are included to insure that contracts for law enforcement
services will carry out the stated purpose of protecting the public
interest.

Id. at 4. If chapter

3 5 l, subchapter D of the Local Government Code is necessarily construed as

delegating unbridled authority to a private entity to control the law-enforcement official's discretion
to deploy deputies, then undoubtedly the statute would not satisry the constitutional standards of
Boll Weevil. See Boll lYeevil,952 S.W.2dat472. But when possible, courts "interpret legislative

enactments

in a mamer to avoid constitutional infirmities." Barshop v. Medina

County

Unelerground Water Conservation Dist.,925 S.W.2d618,629(Tex.l996). A court would likely

choose a construction ofchapter 351, subchapter D that renders it constitutional and determine that
the statutes do not authorize a county to cede its law-entbrcement discretion to deploy deputies to
a private entity.

We conclude that chapter 351, subchapter D ofthe Local Govemment Code does not on its
lace violate either article III, section 52(a) or article III, section I of the Texas Constitution. But a
contract under the subchapter must comport with the limitations in both constitutional provisions.
A contract provision that retains control and supervision ofofficers in the constable and that imposes

no obligation on officers to devote their working time on a particular area does not appear to be
inconsistent with the constitutional principles discussed above. see Request Letter, supra note l,
at 2-3; see a/so Exhibit A, sapra note 2, at 2 (section 2.3). We reiterate, however, that we do not
purport to construe the proposed contract. lloreover, we caution that because a contract is construed
as a whole, the mere inclusion of such a provision in a contract under 351.061 of the Local
Govemment Code is not a guarantee of the contract's constitutionality. Cf. Coker v. Coker, 650
S.W.2d 391, 393 (Tex. 1983) (holding that contracts are construed as a whole, and no single
contractual provision wilI be given controlling effect).

The Honorable D. Matt Bingham

- Page 6

(GA-0553)

SUMMARY
Under chapter 351, subchapter D of the Local Government
Code, a county may contract to provide law-enforcement services to
a nongovemmental association on a fee basis, provided the contract
does not violate article

III, section 52(a) or irticle III, section

of the Texas Constitution. Under article Ill, section 52(a) the

commissioners court must determine, in the first instance, that ( I ) 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.

To comply with article III, section 1 of the constitution, a

contract must not cede county law-enforcement discretion to the
nongoverrrmental association.

are

Attorney General Opinions JM-57 ( I 983) and JM-509 ( I 986)

ovemrled to the extent that they are inconsistent with this opinion.
Very truly yours,

BOTT
leral of Texas

KENT C.SULLIVAN
First Assistant Attorney General

NANCY S.FUI LER

Chair,Opinion Committee
Willitt A.Hill
Assistant Attorney General,Opinion Collmittee

Report on Guidance provided to Constables

This is intended to be a summary and compilation of guidance the Office of the
County Attorney has provided during the past few months concerning issues that have
arisen with respect to various Constable Offices.
Matters Reviewed
The following are matters reviewed:

o
o
o
o
o
o

The
The
The
The
The
The

appropriate use of county offices, equipment and personnel.

administration of the contract deputy programs.
service of vacate notices.
accuracy of timesheet records for county employees.
issuance of"honorary" badges to non-deputies.
use of reserve deputies.

Powers and Duties of the Office of the Constable

The general powers and duties of Constables are principally set forth in
Subsections (a) through (e) of Section 86.021, Local Govemment Code. These include
executing civil or criminal process, warrants, and precepts and serving as bailiffs in
Justice Courts. Harris County has eight Constable Precincts with budgets ranging from
$5,710,000 (Precinct 8) to $28,175,000 (Precinct 5). Collectively the eight precincts are
afforded funds of $119,900,000 annually to service the 1,703.48 square miles of Harris
County.
Use

Of County Property, Equipment And Personnel For Charitable Purposes

The Texas Constitution generally prohibits the use of public property for private
purposes. TEX. CONST. ART. III, $ 52(a); TEX. CONST. ART. III, $ 51; TEX.
CONST. ART. XVI, $ 6(a). However, the courts have held that Article II, section 52
does not prohibit a county from providing public resources to a private entity provided
that the expenditure serves a public purpose of the county, the county receives adequate
consideration, and there are sufficient controls to ensure that the public purpose will be
accomplished.
The Constables' Offices have a long history of helping various charities. County
employees should not feel compelled to contribute to any charity whether or not it is
associated with the elected office. County employees should be told in writing that no
adverse consequences will result if an employee chooses not to contribute to or
parlicipate in the nonprofit's activities. Procedures should be in place to insure that such
directives are followed by all employees.

Use

Of County Property, Equipment, And Personnel For Campaign Purposes

Use of county property and equipment for campaign purposes is prohibited. See
Tpx. PpN. Coop $ 39.02(a)(2). In addition, threatening or intimidating a govemmental
employee with retaliation for refusing make a campaign contribution or work in a
political campaign constitutes an act of official oppression and is a Class A misdemeanor.
See Tpx. PpN. CooE $ 39.03.
The following is an example of a directive issued which may serve as a guide:

1. No Harris County

resources should be used for political purposes, including

county buildings, fax machines, phone lines, office equipment, vehicles,
computers, and e-mail.
2. All employees who volunteer their time to political work must do so off-duty on
their own time.
a
J.
No campaign money, tickets, literature, gifts, or donations should be distributed
or collected on county time or on county property or in a county vehicle.
4. Off duty personnel should not wear their uniforms at political events.

We suggest that the names and addresses of county employees should not be on
campaign mailing lists, unless the employee expressly requests inclusion. No in-person
solicitation should be made directly to a county employee, whether it is done on county
property or another location. County work addresses and county email addresses should
also be excluded from campaign mailing lists.
campaign activities if they wish, but
management should be sensitive to the appearance of coercion, and all such activity must
be carried out while off duty.

County employees may participate

in

Management should strictly enforce restrictions against use of county resources

for campaign activity. Policies such as the campaign prohibitions in the Harris County
Statement of Ethics. attached, should be adopted by individual Constable Offices and
enforced by effective oversight.

Contract Deputy Program

Pursuant to section 351.061 of the Local Government Code, Harris County enters
into agreements with non-governmental associations for law enforcement services in the

geographical area represented by the association. Pursuant to the Interlocal Cooperation

Act found at Chapter 791 of the Government Code, the County enters into substantially
similar agreements with govemmental entities. A law enforcement services agreement is
sometimes referred to as a Contract Patrol Program Agreement (CPPA).

The contract deputy program allows MUDs, school districts, homeowners

associations and other groups to pay to have Sheriffs or Constables' deputies assigned to
specific areas or neighborhoods.

While initially determined as unconstitutional by attorney generals during the

1980s, and prior to the passing of Local Government Code Subsection 351, Attorney
General Greg Abbott in 2007 found the programs constitutional so long as county
commissioners ensure a contract's main purpose is to benefit the public, not a private
group, and further provided that the contract did not improperly cede an elected official's
authority over his or her deputies.

CPPAs are designed to hire additional law enforcement officers that cannot be
funded with existing county revenue. Governmental and non-governmental entities
supply these funds to place additional officers in specific patrol areas. Through the use of
the CPPA, Harris County is able to increase the number of patrol officers on duty by
more than eight hundred deputies without resorting to a general tax increase or by
reducing services elsewhere. As a result, the CPPA program is considered to be highly
effective and successful.
According to the most recent report covering the program, 295 CPPAs supply 852
additional officers. Of these officers, 185 are reimbursed at 100yo of the cost, 163 are
reimbursed at80oh, and 504 are reimbursed at70o/o.
The CPPA contracts mandate that all decisions as to the deployment of officers
shall remain under the exclusive supervision of the law enforcement agency. This is
required under Tex. Loc. Gov'T Conp $ 351.064(a) and by the Texas Constitution
which generally prohibits an elected official from delegating his discretion and duties to a
private organization.
CPPAs are entered into on an annual basis. Recently, the effective date of the
CPPAs was realigned to be consistent with the County's fiscal year, beginning on March
I't and terminating at the end of February the following year.

Vacate Notices
Section 24.005 of the Texas Property Code requires a landlord to give a tenant
who defaults or holds over the end of the term of a lease a notice to vacate the property
prior to filing a forcible entry and detainer suit. See TEx. PRoP. CooE $ 24.00. This is
known as a "vacate notice." The Texas Local Government Code states that such vacate
notices required by Section 24.005, Property Code, "are process for purposes of this
section that may be executed by a constable."
Section 86.021(a) of the Texas Local Government Code states that vacate notices
may be served the same as other civil process; however Section 154.005(d) places
limitations on the method by which constables may serve vacate notices. For example,
Section 154.005(d) of the Texas Local Government Code states that a constable may
receive a fee for serving a vacate notice, but "notices may only be delivered when not in
conflict with the official duties and responsibilities of the constable." The section reads
further that, "A constable delivering said notices must not be wearing upon his or her
person a uniform or any insignia which would usually be associated with the position of
constable nor may the constable use a county vehicle or county equipment while

delivering said notices. For purposes

of collecting fees for serving said notices,

constable is considered a private process server."

As a result of uncertainty in the law, different policies and procedures developed

among the Constables can lead to further uncertainty and confusion. Constables should
be wary of running afoul of the restrictions imposed by section 154.005(d) the Texas
Local Government Code. The following is a summary of guidelines issued by our Office
previously:

L
2.
3.
4.
5.

Deliver notices to vacate during off-duty hours.

Wear street clothes when delivering notices to vacate
Use a personal vehicle when delivering notices to vacate
Require the landlord to provide the notice to vacate.
Require the landlords to specify the manner of delivery.

Time Records Of County Employees

County policy requires that all time sheets reflect actual time worked.
Better training of management and employees should be implemented to learn the
standards that the county imposes on the filing of time records, and management should
ensure that personnel adhere to these standards. Approved computerized forms should be
used and training provided to insure proper use of computerized forms.

Honorary Constable Badges

Section 37.12(a) of the Texas Penal Code prohibits the possession and
presentation of a card, badge, document, insignia, shoulder emblem, or other object
bearing the insignia of a law enforcement agency and which identifies that person as a
deputy or reserve deputy of the agency when he or she is not. The penal code permits
such identification if it clearly identifies the officer as an honorary or junior peace officer,
a reserve deputy, or a member of a junior posse. See Tpx. PEN. CooE 537.12.
We caution all Constables to ensure that the issuance of honorary badges and
identification is done in compliance with section 37.12 of the Texas Penal Code. Such
identification should only be issued with the knowledge and consent of the Constable and
those who receive such identification should be instructed not to use it to influence the
actions of law enforcement officers or others.

All

honorary identification should indicate that

it is not an official law

enforcement credential.
Use

Of

Reserve Deputies

Section 86.012 of the Texas Local Government Code authorizes constables to

appoint reserve deputies. See Tex. Loc. Gov'T. CoDE $86.012. Each of the Harris
County Constables' Offices has reserve deputies.

Reserve deputies serve at the discretion of the Constable and can be called into
service at any time that the Constable considers circumstances necessary to have
additional officers to preserve the peace and enforce the law. Reserves who are peace
officers may be authorized by the Constable to carry a weapon or act as a peace officer at
all times. Reserves are not considered employees of the County and are not paid by the
County.

Commissioners Court has the authority under section 86.012(a) of the Texas
Local Government Code to limit the number of reserve deputy constables that a constable
may appoint. Harris County Commissioners Court has not taken this step. Constables
should ensure that they have reserve officers in place sufficient to provide for public
safety while still ensuring proper management and training.

Summary
We trust this report is helpful. Our attorneys are available to the Constables and
to advise on these matters at any time.

 351.061. Authority to Contract, TX LOCAL GOVT 351.061

Vernon's Texas Statutes and Codes Annotated

Local Government Code (Refs & Annos)
Title 11. Public Safety
Subtitle B. County Public Safety
Chapter 351. County Jails and Law Enforcement
Subchapter D. Contracts for Law Enforcement Services on Fee Basis
V.T.C.A., Local Government Code 351.061
351.061. Authority to Contract
Currentness
To protect the public interest, the commissioners court of a county may contract with a nongovernmental association for the
provision of law enforcement services by the county on a fee basis in the geographical area represented by the association.

Credits
Acts 1987, 70th Leg., ch. 149, 1, eff. Sept. 1, 1987.

Notes of Decisions (3)

V. T. C. A., Local Government Code 351.061, TX LOCAL GOVT 351.061
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document

2016 Thomson Reuters. No claim to original U.S. Government Works.

2016 Thomson Reuters. No claim to original U.S. Government Works.

i`E DRISCOLL
) Fy

1 l Pics10n,

attorncy

HoustOn,Tcx

February 25 1985

13 221 5

Constable Dick Moore

Precinct No. 4
683I Cypresswood Drive

Spring, Texas

7731-3

Re: patroling River Grove park

C. A. Eile No. 19,719
Dear Const able Moore

is is in response to
request. for advicq on the above.your
you ask
whether or not you may '"provi.Oe
patrot_
-"."iion
ing of the River Grove Park, which is a privaturv

Th

captioned matter.
land.

orinea

"

ot

vate property as f011 ws:

Now

public peace officers are nOt con

lfr:IiV::et:[ :::iY:

7ate prOperty is nOt

fficia

293 Sow.

:l:::ri:: ::::: liliJl:

First Assistant: Vincc Ryan

David H. lvlelasly, Jcrry B.

ari:nstables

F:gn

may

nOt

:FttFinillillllt l:i:

Division Chiefs: l'larsha Floyd, O.J. Cuiheneau, David R. Hurley.

Abslraering Division: J,nmy lrlcKnighr

Schank

patr

Constable Dick

February 25,

-2-

Moore

1985

that deputies wilI perforrn the same dut.ies under the contract as
the duties that a peace officer owes to the public. Thus, the Iav,
enforcement agreements currently in use do not provide for the
guarding of private property. Eurtshermore, the proposed legislaLion does noE aut.horize the County to contract to guard or patrol
private property.
If we can be of furEher service co you in this matter, please do
not hesitate to ask.
S

incere Iy

HIKE DRISCOLL
County Attorney

By

LAVERGNE SCHWENDER

Assistant County
MD:LS:ca

At,

t.orney