Can a Texas constable work paid law enforcement for an HOA in another precinct?

Plain-English summary

Joe Warner Bell, the Trinity County Attorney, asked the Attorney General about a specific plan. Trinity County wanted to let its Precinct 1 Constable provide law enforcement services to a property owners association located in Precinct 2. The money would flow through the county: the association would pay Trinity County $20 an hour for the services, and the county would then pay the constable part of that fee as an hourly wage. The county attorney asked two questions, the first of which was whether the Precinct 1 Constable could provide those fee-based services to an association in Precinct 2.

The opinion answered no, working through the relevant statutes. Local Government Code section 351.061 lets a commissioners court contract with a nongovernmental association (a property owners association counts) for county law enforcement services on a fee basis. Section 351.063 then lets the commissioners court ask the sheriff or a county official with law enforcement authority to provide those services "in the geographical area for which the official was elected or appointed." A constable is such a county official, and the geographical area a constable is elected to serve is the constable's precinct.

The hinge was the cross-precinct piece. Because a constable's area is the precinct for which he was elected, section 351.063 only reaches services in that precinct. It does not expressly authorize a commissioners court to ask a constable to serve a different precinct, and it does not impliedly authorize it either, since the court can exercise its express power (asking a constable to serve his own precinct) without needing any cross-precinct authority. The opinion also found no other law letting a constable provide these services on his own without being asked by the commissioners court. So a constable may not provide fee-based law enforcement to a property owners association outside his own precinct.

The second question asked how the resulting funds should be disbursed. Because the answer to the first question was that the constable could not perform the services at all, the opinion did not need to reach the disbursement question.

Currency note

This opinion was issued in 2012. 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

The Trinity County Attorney (as the opinion described it): The opinion answered the first question by concluding the Precinct 1 Constable could not provide fee-based law enforcement to a property owners association in Precinct 2, which made the second question about fund disbursement unnecessary to answer.

Commissioners courts (as the opinion described it): The opinion read sections 351.061 and 351.063 to let a commissioners court arrange fee-based law enforcement by a county official only within the area that official was elected or appointed to serve, with no express or implied authority to extend a constable's fee services into another precinct.

Constables (as the opinion described it): The opinion treated a constable's geographical area under section 351.063 as the constable's own precinct, so the constable could not be tasked with fee-based services to an association in a precinct for which he was not elected.

Property owners associations (as the opinion described it): The opinion addressed which county official could be asked to provide the fee-based services and where; it concluded a constable from a different precinct was not a permissible provider under the statute.

Common questions

Can a Texas constable provide paid security or patrol to an HOA outside his precinct?
According to the opinion, no. Section 351.063 limits a county official's fee-based law enforcement services to the geographical area for which the official was elected, which for a constable is the constable's own precinct.

What does the law allow within the constable's own precinct?
The opinion read section 351.063 to let a commissioners court ask a constable to provide fee-based law enforcement to a nongovernmental association, such as a property owners association, in the precinct for which the constable was elected.

Why couldn't the county just authorize the cross-precinct arrangement?
The opinion found no express authority for it, and no implied authority either, because the commissioners court can use its express power within a precinct without needing power to reach across precincts. It also found no law letting a constable provide the services on his own initiative.

What happened to the question about how the fees would be paid out?
The opinion did not reach it. Since the constable could not perform the out-of-precinct services in the first place, the disbursement question fell away.

Background and statutory framework

The opinion began with the plain and common meaning of the statutory text, citing Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). Local Government Code section 351.061 authorizes a commissioners court to contract with a nongovernmental association for county law enforcement services on a fee basis in the area represented by the association. Tex. Loc. Gov't Code Ann. § 351.061 (West 2005); see Tex. Att'y Gen. Op. No. JM-509 (1986) (property owners association is a nongovernmental association). Section 351.063 lets the commissioners court request the sheriff or a county official with law enforcement authority to provide the services "in the geographical area for which the official was elected or appointed." Tex. Loc. Gov't Code Ann. § 351.063 (West 2005); see Tex. Att'y Gen. Op. No. GA-0553 (2007) (a constable is a county official for this purpose). A constable's geographical area is the constable's precinct. Tex. Const. art. V, § 18(a).

For a commissioners court to reach beyond that area, a statute would have to grant the authority expressly or by implication. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 27-28 (Tex. 2003). The opinion found section 351.063 did neither, reasoning that implied authority extends only to what must be done to exercise an express power, and the court could exercise its in-precinct power without any cross-precinct authority.

Citations

Cases:

• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999)
• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 27-28 (Tex. 2003)

Statutes:

• Tex. Loc. Gov't Code Ann. § 351.061 (West 2005)
• Tex. Loc. Gov't Code Ann. § 351.063 (West 2005)
• Tex. Const. art. V, § 18(a)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0938
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0938.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 29, 2012

The Honorable Joe Warner Bell Opinion No. GA-0938
Trinity County Attorney
Post Office Box 979 Re: Whether a commissioners court may permit a
Groveton, Texas 75845-0979 constable of one precinct to provide the services
authorized by section 351.061, Local Government
Code, in a different precinct (RQ-1020-GA)

Dear Mr. Bell:

You ask two questions about a plan to allow the Trinity County Precinct 1 Constable to provide law enforcement services to a property owners association ("POA") in Precinct 2.[1] Under that plan, a POA would pay Trinity County a fee of $20 per hour for these services, and the County would later pay the Constable part of this fee "as an hourly wage." Request Letter at 2.

Your first question is whether the Precinct 1 Constable may provide law enforcement services for a fee to a POA in Precinct 2. Id. We begin our answer by "looking to the plain and common meaning" of statutory text. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). Section 351.061 of the Local Government Code provides that "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." TEX. LOC. GOV'T CODE ANN. § 351.061 (West 2005). A POA is a "nongovernmental association" for purposes of section 351.061. See Tex. Att'y Gen. Op. No. JM-509 (1986). A "commissioners court may request the sheriff of the county or a county official who has law enforcement authority to provide the services in the geographical area for which the official was elected or appointed." TEX. LOC. GOV'T CODE ANN. § 351.063 (West 2005). A constable is a "county official" for purposes of section 351.063. Tex. Att'y Gen. Op. No. GA-0553 (2007) at 2-3. The geographical area for which a constable is elected is the constable's precinct. TEX. CONST. art. V, § 18(a). Thus, section 351.063 allows a commissioners court to ask a constable to provide law enforcement services for a fee to a POA in the precinct for which the constable was elected.

A commissioners court would be allowed to ask a constable to perform those services in a precinct for which the constable was not elected only if a Texas statute expressly or impliedly granted a commissioners court the authority to do so. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 27-28 (Tex. 2003). Section 351.063 does not expressly grant a commissioners court authority to ask a constable to perform law enforcement services for a fee in a precinct for which the constable was not elected. TEX. LOC. GOV'T CODE ANN. § 351.063 (West 2005). Nor does section 351.063 impliedly grant a commissioners court authority to ask a constable to do so. That is because a commissioners court could ask a constable to perform law enforcement services for a fee to a POA in the precinct for which the constable was elected without needing to be able to ask a constable to perform those services in a precinct for which the constable was not elected. See City of Boerne, 111 S.W.3d at 28 (explaining that commissioners courts have implied authority to do what must be done in order to be able to exercise expressly-granted authority). Thus, section 351.063 does not grant a commissioners court authority to ask a constable to perform law enforcement services for a fee to a POA in a precinct for which the constable was not elected. We neither found nor received briefing purporting to find a law that would authorize a constable to perform those services without being asked to do so by a commissioners court. Therefore, a constable may not perform law enforcement services for a fee to a POA in a precinct for which the constable was not elected.

Your second question is "how are the funds to be disbursed; i.e. used to defray the budgeted expenses of the Constable's Department or be paid over [to] the Constable or the 'unpaid' deputies as wages?" Request Letter at 2. Such funds would be derived from fees paid to a constable for performing law enforcement services to a POA in a precinct for which the constable was not elected. Id. at 1-2. In our answer to your first question, we opined that a constable may not perform those services. Therefore, our answer to your first question obviates an answer to your second question.

SUMMARY

Under section 351.061 of the Local Government Code, a constable may not provide law enforcement services for a fee to a private property owners association outside the precinct for which the constable was elected.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Joe Warner Bell, Trinity Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Nov. 23, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").