Can a Texas sheriff accept an administrative fee from the private company that runs the county jail?

TX AG Opinion GA-0760: Can a sheriff take a fee from the private operator of the county jail?

Plain-English summary

Under Local Government Code section 351.101, a county commissioners court, with the sheriff's approval, may contract with a private organization to house inmates in a detention facility the organization operates. A state representative described a setup where the sheriff personally would be paid an administrative fee by that private organization, based on inmate count, ostensibly for the sheriff's administrative work on the contract. She asked three questions: is there any authority for a sheriff to accept such a fee; would accepting it be a "financial interest" that voids the contract; and would accepting it break any criminal law. The request was general, not about a specific contract.

On the first question, the opinion said no. Article XVI, section 61 of the Constitution requires county officers in larger counties to be compensated on a salary basis, and makes a salary mandatory for all sheriffs regardless of county population. A salaried sheriff, by statute, receives the salary instead of all fees, commissions, and other compensation he would otherwise be authorized to keep. The constitutional provision that a fee of office must be paid into the county treasury is not itself a grant of authority to accept a fee, and the Local Government Code puts the power to set a county officer's compensation with the commissioners court. Putting that together, the opinion concluded that neither the Constitution nor Texas statutes authorize a sheriff to accept the kind of administrative fee described.

The opinion did not answer the other two questions. Because there was no authority for the sheriff to accept the fee in the first place, it did not need to decide whether accepting it would amount to a "financial interest" voiding the contract under section 351.101. And whether accepting the fee would violate a criminal statute depends on particular facts, which the opinion process does not resolve, so the opinion declined that question too. A footnote noted that a brief described a different contract structure in a particular county where the sheriff receives only a county salary, and that a court looking at a specific contract and specific facts could reach a different result.

Currency note

This opinion was issued in 2010. 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.

Article XVI, section 61 of the Constitution and the Local Government Code provisions on county officer compensation and jail contracts may have been amended since 2010. Confirm current law before relying on anything below.

Who this opinion affected (as of 2010)

County sheriffs: The opinion told them that, because they must be compensated on a salary basis and receive that salary instead of fees and other compensation, there is no constitutional or statutory authority to accept an administrative fee from a private jail operator.

Commissioners courts and private jail operators: The opinion described that the commissioners court sets a county officer's compensation, and that the described fee arrangement to the sheriff was unauthorized; it did not, however, rule on whether such a fee would void a specific section 351.101 contract.

Anyone weighing the legality of a specific arrangement: The opinion noted it answered only the general question on the requestor's facts, declined the criminal-law question as fact-bound, and acknowledged that a court reviewing a specific contract could conclude differently.

Common questions

Can a sheriff be paid an extra administrative fee by the company that runs the jail?
No. The opinion concluded there is no constitutional or statutory authority for a sheriff to accept such a fee from a private organization.

Why not? The sheriff approves the jail contract.
Because sheriffs must be compensated on a salary basis under article XVI, section 61, and a salaried sheriff receives that salary instead of all fees, commissions, and other compensation. The commissioners court sets the compensation.

Does taking the fee void the jail contract as a "financial interest"?
The opinion did not decide that. Having found no authority to accept the fee, it concluded it did not need to reach the section 351.101 "financial interest" question.

Is accepting the fee a crime?
The opinion declined to say, because whether particular conduct violates a criminal statute is a fact question outside the opinion process.

Background and statutory framework

Local Government Code section 351.101 lets a commissioners court, with the sheriff's approval, contract with a private organization to place inmates in a detention facility the organization operates, and bars contracts with organizations in which a court member or a peace officer serving in the county has a financial interest, voiding any contract made in violation (Tex. Loc. Gov't Code Ann. § 351.101 (Vernon 2005)). County sheriffs must be compensated on a salary basis (Tex. Const. art. XVI, § 61(a), (c); see id. art. V, § 23 (election of sheriff)). A salaried officer receives the salary instead of all fees, commissions, and other compensation otherwise authorized (Tex. Loc. Gov't Code Ann. § 154.002 (Vernon 2008); Moore v. Sheppard, 192 S.W.2d 559, 560 (Tex. 1946)).

The constitutional requirement that a fee of office be paid into the county treasury is not a grant of authority to accept a fee (Tex. Const. art. XVI, § 61(d); cf. Tex. Loc. Gov't Code Ann. § 154.005(c) (Vernon 2008) (reward for apprehended criminal or stolen property)), and the commissioners court sets a county officer's compensation (Tex. Loc. Gov't Code Ann. § 152.011 (Vernon 2008)). The opinion therefore found no authority for the described fee, did not reach the "financial interest" question under section 351.101, and declined the criminal-law question as fact-bound.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. §§ 351.101 (Vernon 2005); 154.002, 154.005(c), 152.011 (Vernon 2008)
• Tex. Const. art. XVI, § 61(a), (c), (d); art. V, § 23

Cases:

• Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0760
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0760.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

February 17, 2010

The Honorable Yvonne Davis
Chair, Committee on Urban Affairs
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0760

Re: Authority of a sheriff to accept a fee from a private organization that contracts with the sheriff's county to operate the county jail (RQ-0823-GA)

Dear Representative Davis:

You ask several questions involving section 351.101 of the Local Government Code.[1] Section 351.101 provides, in relevant part, that:

The commissioners court of a county, with the approval of the sheriff of the county, may contract with a private organization to place inmates in a detention facility operated by the organization. The commissioners court may not contract with a private organization in which a member of the court or an elected or appointed peace officer who serves in the county has a financial interest . . .. A contract made in violation of this section is void.

TEX. LOC. GOV'T CODE ANN. § 351.101 (Vernon 2005). You describe, generally, a situation in which a county and a private organization have entered into a contract under section 351.101. See Request Letter at 1. You tell us that the person holding the office of county sheriff would be paid an administrative fee by the private organization "based upon inmate count" and "ostensibly" for the sheriff's administrative responsibilities with respect to the contract.[2] Id.

You state that because a county may not enter into such a contract for jail services without the sheriff's approval, a situation involving the sheriff's personal acceptance of a fee paid by a private organization raises the following questions:

1. Is there any constitutional or statutory authority which allows a sheriff to be offered or to accept an administrative fee paid by a private organization?

2. Does the acceptance of such an administrative fee by the sheriff constitute or is it tantamount to having a "financial interest" in the private organization which violates Section 351.101 of the Texas Local Government Code and causes the contract to be void?

3. Is the payment or acceptance of an administrative fee to the sheriff, who must first approve the contract between the county and a private organization wishing to operate a facility for county prisoners, a violation of any criminal laws?

Id. at 1-2. Because you do not ask about a particular contract, we can address your questions only generally. See id. at 1 (noting several such contracts in Texas but stating that the request is not "requesting an opinion for any certain contract").

First, you ask broadly about a sheriff's authority to accept an administrative fee from a third party. See id. at 1 (noting also that a "sheriff's salary/compensation includes being paid for the safe keeping of county prisoners"). Article XVI, section 61 of the Texas Constitution requires that "county officers in counties having a population of twenty thousand (20,000) or more . . . be compensated on a salary basis." TEX. CONST. art. XVI, § 61(a); see also id. art. V, § 23 (providing for election of sheriff by county voters). In counties with a population of less than twenty thousand, the "Commissioners Courts have the authority to determine whether county officers shall be compensated on a fee basis or on a salary basis, with the exception that it shall be mandatory upon the Commissioners Courts to compensate all sheriffs ... on a salary basis." Id. art. XVI, § 61(c). Thus, regardless of county population, county sheriffs must be compensated on a salary basis. A sheriff, paid on a salary basis, "receives the salary instead of all fees, commissions, and other compensation the officer would otherwise be authorized to keep." TEX. LOC. GOV'T CODE ANN. § 154.002 (Vernon 2008); see also Moore v. Sheppard, 192 S.W.2d 559, 560 (Tex. 1946) (associating officer's "fees of office" with fee charged for performance of the officer's official duties). While article XVI, section 61 requires that a fee of office earned by a county officer "shall be paid into the county treasury," it is not a grant of authority for the acceptance of a fee. TEX. CONST. art. XVI, § 61(d); cf. TEX. LOC. GOV'T CODE ANN. § 154.005(c) (Vernon 2008) (permitting sheriff to receive reward for apprehended criminal or stolen property). In addition, the Local Government Code expressly places the authority to establish the "amount of ... compensation" for county officers with the county commissioners court. See TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 2008) (authorizing the commissioners court to set the compensation for county officers paid wholly from county funds). Accordingly, we conclude that neither the Texas Constitution nor Texas statutes authorize a county sheriff to accept from a private organization an administrative fee such as you have described.

Second, you inquire whether the sheriff's acceptance of the administrative fee from a private organization constitutes or is tantamount to a "financial interest" under section 351.101. See Request Letter at 2. Because of our conclusion that there is no authority for a sheriff to accept the fee described, we need not address this question.

Third, you ask whether the sheriff's acceptance of an administrative fee violates any criminal laws. Id. Whether particular conduct constitutes a violation of a criminal statute involves questions of fact that are outside the purview of the opinion process. See Tex. Att'y Gen. Op. No. GA-0485 (2006) at 4 (noting that questions involving issues of fact are outside the Attorney General opinion process).

SUMMARY

Neither the Texas Constitution nor Texas statutes authorize the person holding the office of county sheriff to be paid an administrative fee by a private organization.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[Footnote 1: See Request Letter at 1-2 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: We received a brief averring that the contract structure utilized in a particular county is different from the contract structure described in the request and that the sheriff receives only a salary from the county. Brief from Michael W. Dixon, Haley & Olson, P.C. at 2 (Oct. 5, 2009) (on file with the Opinion Committee). We answer only the general questions posed in the Request Letter, and in doing so we must rely on the factual representations of the one requesting our opinion. See Tex. Att'y Gen. Op. No. GA-0249 (2004) at 2 (stating that fact questions cannot be answered in the opinion process and assuming that the request letter has provided a "correct and complete version of the facts"); see also Tex. Att'y Gen. Op. No. H-772 (1976) at 6 (relying on facts as presented in the request letter). A court considering a specific contract and a specific set of facts could arrive at a different conclusion.]