Can a Texas county ban an elected official from bringing a pet to their own office?

Plain-English summary

John Mark Cobern, the Titus County Attorney, asked the Attorney General whether the county commissioners court could ban him from bringing a pet to his own office. His office sits in the Titus County Courthouse, and he had brought his dog to work for three years before the commissioners court voted to ban all animals from county buildings. He questioned whether the court's authority reached the office of an independently elected county official like himself.

The Attorney General started with the structure of Texas county government, which splits power among independently elected officials and the commissioners court. Each elected official has a protected "sphere of authority" over the core duties the Constitution and statutes assign to the office, and no other official may interfere with or usurp it. But the court also has its own powers: commissioners courts may exercise only the authority the Constitution and statutes give them, and a specific statute requires them to provide and maintain the county courthouse and offices for county officials. That duty carries at least implied authority to regulate the use of county offices within reasonable bounds, and the office-providing duty is described in the case law as "replete with discretion."

Putting those together, the Attorney General concluded that regulating animals in the courthouse and county offices is generally within the commissioners court's discretionary authority, so the only remaining question was whether the court abused its discretion. The county attorney did not claim the order violated a statute, and although he argued his dog made the office safer, the AG concluded that under the facts presented a court would likely find the ban did not unreasonably interfere with the statutory or constitutional duties of his office. So a reviewing court would likely uphold the ban as applied to all county offices, including the county attorney's. The opinion noted the policy's exceptions for service animals and made clear it was not addressing the separate state and federal laws that protect people who use service animals.

Currency note

This opinion was issued in 2013. 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 Titus County Attorney (as the opinion described it): The opinion told the county attorney that, on the facts he presented, a reviewing court would likely uphold the commissioners court's animal ban as applied to his office. It explained that the ban fell within the court's authority to maintain and regulate county offices, and that his "safer office" argument would likely not establish unreasonable interference with the core statutory or constitutional duties of the county attorney's office.

The Titus County Commissioners Court (as the opinion described it): The opinion described the court's animal ban as generally within its discretionary authority to provide and regulate county offices, reversible only for acting beyond its jurisdiction or clearly abusing its discretion, and would be invalid only if it conflicted with a statute or unreasonably interfered with an elected official's core duties.

Common questions

Can a county commissioners court ban pets from an elected official's office?
According to the opinion, generally yes. A reviewing court would likely uphold a ban on animals in county offices, including an elected county attorney's office, because regulating county offices is within the commissioners court's discretionary authority.

Doesn't an elected official control their own office?
The opinion explained that an elected official's protected sphere covers the "core duties" the Constitution and statutes assign to the office. Banning pets did not, on these facts, unreasonably interfere with those core duties.

When would such an order be invalid?
The opinion said a commissioners court order would be invalid if it conflicted with a statute, or if it interfered with a county official's performance of the statutory or constitutional duties of the office, or otherwise amounted to acting illegally, unreasonably, or arbitrarily.

What about service animals?
The opinion noted that the policy itself had exceptions for service animals and that access for people who use service animals is governed by separate state and federal laws the opinion did not address. Nothing in the opinion affects those rights.

Background and statutory framework

The opinion drew the "sphere of authority" principle from the Texas Supreme Court's decision in Pritchard & Abbott v. McKenna and the El Paso court of appeals' decision in Hooten v. Enriquez (quoting the Fifth Circuit's decision in Familias Unidas v. Briscoe), and limited that sphere to "core duties" using the Austin court of appeals' decision in Griffin v. Birkman and the Texas Supreme Court's decision in Comm'rs Ct. of Titus Cnty. v. Agan; for the scope of commissioners court power, it relied on Texas Constitution article V, section 18(b) and the Texas Supreme Court's decision in City of San Antonio v. City of Boerne, plus the implied-authority rule from the Texas Supreme Court's decision in Anderson v. Wood, which lets a court use broad discretion to carry out its statutory duties.

The key duty came from Local Government Code section 291.001, requiring the court to provide and maintain the courthouse and county offices, with regulatory authority recognized in the Waco court of civil appeals' decision in Dodson v. Marshall and in section 291.003. The El Paso court of appeals' decision in In re El Paso Cnty. Courthouse described the duty as "replete with discretion." For the abuse-of-discretion and interference limits, the opinion cited Comm'rs Ct. of Titus Cnty. v. Agan, the Texas Supreme Court's decision in Guynes v. Galveston Cnty., and the Austin court of appeals' decision in Abbott v. Pollock; the service-animal references pointed to Human Resources Code section 121.003(c) and 28 C.F.R. sections 35.136 and 36.302(c).

Citations

Cases:

• Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961)
• Hooten v. Enriquez, 863 S.W.2d 522, 531 (Tex. App.-El Paso 1993, no writ)
• Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)
• Griffin v. Birkman, 266 S.W.3d 189, 197 (Tex. App.-Austin 2008, pet. denied)
• Comm'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 79-80 (Tex. 1997)
• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)
• Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)
• Dodson v. Marshall, 118 S.W.2d 621, 623 (Tex. Civ. App.-Waco 1938, writ dism'd)
• In re El Paso Cnty. Courthouse, 765 S.W.2d 876, 879 (Tex. App.-El Paso 1989, no writ)
• Guynes v. Galveston Cnty., 861 S.W.2d 861, 863 (Tex. 1993)
• Abbott v. Pollock, 946 S.W.2d 513, 516-17 (Tex. App.-Austin 1997, writ denied)

Statutes and regulations:

• Tex. Const. art. V, § 18(b)
• Tex. Loc. Gov't Code Ann. § 291.001, § 291.003 (West 2005)
• Tex. Hum. Res. Code Ann. § 121.003(c) (West 2013)
• 28 C.F.R. § 35.136 (2013); § 36.302(c)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1018
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1018.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

August 26, 2013

The Honorable John Mark Cobern Opinion No. GA-1018
Titus County Attorney
100 West First Street, Suite 106 Re: Whether a commissioners court may establish
Mt. Pleasant, Texas 75455 a rule that prohibits an elected county official from
bringing a pet to the official's office
(RQ-1114-GA)

Dear Mr. Cobern:

You ask whether a county commissioners court may establish a rule that prohibits an elected county official from bringing a pet to the official's office.[1] You inform us that your office is located in the Titus County Courthouse and that you have brought your dog to your office for the last three years. Request Brief at 1. You state that the Titus County Commissioners Court recently voted to ban all animals from county buildings. Id. at 2. You question the commissioners court's authority to extend this ban to the office of an independently elected county official. Id. at 2-4.

We note at the outset that, according to the commissioners court's meeting minutes, the policy has exceptions for specified categories of service animals. See Minutes of Titus Cnty. Comm'rs Ct. Regular Meeting at 4 (Mar. 11, 2013) (Item 7), http://www.co.titus.tx.us/index.html (on file with the Op. Comm.). Access to public buildings for persons with service animals is governed by state and federal laws not addressed in this opinion. See, e.g., TEX. HUM. RES. CODE ANN. § 121.003(c) (West 2013) (use of service animals in public facilities); 28 C.F.R. §§ 35.136 (2013) (use of service animals with respect to state and local services); 36.302(c) (use of service animals with respect to public accommodations). Nothing in this opinion should be construed to affect the rights of persons who use service animals.

The Texas Constitution and statutes distribute the power of the county among various independent county and district officials and the county commissioners court. Each independent, elected county official possesses a sphere of authority in which no other county official or entity, including the commissioners court, may "interfere or usurp." Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961). As courts have observed, "in Texas, elected county officials hold 'virtually absolute sway over the particular tasks or areas of responsibility entrusted to [them] by state statute.'" Hooten v. Enriquez, 863 S.W.2d 522, 531 (Tex. App.-El Paso 1993, no writ) (quoting Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)). However, an official's protected "sphere of authority" concerns only "core duties" specifically delegated to the officer by the Texas Constitution and statutes. See Griffin v. Birkman, 266 S.W.3d 189, 197 (Tex. App.-Austin 2008, pet. denied) (citing Comm'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 79-80 (Tex. 1997)).

No statute specifically addresses the authority of an official to establish policy with respect to the presence of pets or other animals on office premises. Your question concerns the commissioners court's authority to establish regulations applicable to the county attorney's office, which is located in the county courthouse. Request Brief at 1. Commissioners courts have only the power conferred to them by statute or the Texas Constitution. TEX. CONST. art. V, § 18(b); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). But when the constitution and statutes have conferred a right or obligation on the commissioners court, the commissioners court has implied authority to exercise broad discretion to accomplish the purposes underlying the constitutional or statutory provision. Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). A commissioners court action is subject to reversal only for acts beyond its jurisdiction or a clear abuse of discretion. Comm'rs Ct. of Titus Cnty., 940 S.W.2d at 80-81.

Commissioners courts have a specific statutory duty to provide and maintain a county courthouse and offices for county officials. TEX. LOC. GOV'T CODE ANN. § 291.001 (West 2005). This statutory duty gives a commissioners court "at least implied authority to regulate the use [of county offices] within reasonable bounds." Dodson v. Marshall, 118 S.W.2d 621, 623 (Tex. Civ. App.-Waco 1938, writ dism'd); see also TEX. LOC. GOV'T CODE ANN. § 291.003 (West 2005) ("The county sheriff shall have charge and control of the county courthouse, subject to the regulations of the commissioners court." (emphasis added)). Moreover, a commissioners court's duty to provide offices under section 291.001 is "replete with discretion." In re El Paso Cnty. Courthouse, 765 S.W.2d 876, 879 (Tex. App.-El Paso 1989, no writ). Therefore, the regulation of animals in the county courthouse and county offices is a matter that is generally within the commissioners court's discretionary authority.

Because the subject matter of the commissioners court's order is within the commissioners court's authority, the remaining issue is whether the commissioners court abused its discretion by issuing the order. See Comm'rs Ct. of Titus Cnty., 940 S.W.2d at 81. A commissioners court may abuse its discretion by acting "illegally, unreasonably, or arbitrarily." Id. at 80. You do not suggest that the commissioners court's order is contrary to any statute.[2] If, however, the commissioners court's order interfered with a county official's performance of the statutory or constitutional duties of his office, the order would exceed the commissioners court's authority. See, e.g., Abbott v. Pollock, 946 S.W.2d 513, 516-17 (Tex. App.-Austin 1997, writ denied) (holding that a commissioner court may determine the number and compensation of a sheriff's employees, but may not interfere with the sheriff's exclusive statutory authority to hire or terminate employees). You assert that the presence of your dog helps to maintain a safer office environment. Request Brief at 1, 4. Whether that assertion is accurate or not, under the facts as you relate them a reviewing court would likely conclude that the commissioners court's order does not unreasonably interfere with the performance of the statutory or constitutional duties of the county attorney. Accordingly, given the commissioners court's statutory authority to maintain and regulate county offices, a reviewing court would likely uphold the commissioners court order prohibiting animals in all county offices, including the office of the county attorney.

SUMMARY

Due to a commissioners court's statutory authority to maintain and regulate county offices, a reviewing court would likely determine that the Titus County Commissioners Court may generally prohibit animals in county offices, including the office of the county attorney.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Brief from Honorable John Mark Cobern, Titus Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Mar. 12, 2013), http://www.texasattorneygeneral.gov/opin ("Request Brief").

[2] To the extent that a commissioners court order is contrary to a statutory requirement, it would be invalid. See Guynes v. Galveston Cnty., 861 S.W.2d 861, 863 (Tex. 1993) (stating that a commissioners court's acts "must be grounded ultimately in the Texas Constitution or statutes").