Can a Texas county commissioners court create its own courthouse police force?

Plain-English summary

The Ector County District Attorney asked whether the county Commissioners Court could set up and pay for its own courthouse security force, drawing on the courthouse security fund that article 102.017 of the Code of Criminal Procedure creates. That fund is built from small security fees added to court costs (five dollars on a felony conviction, three dollars on a misdemeanor) and may be spent only on providing security for buildings that house the courts.

The Attorney General split the question into two parts and gave two different answers. On spending, yes: article 102.017(d)(6) lets the Commissioners Court use the fund to pay for "bailiffs, deputy sheriffs, deputy constables or contract security personnel" while they are providing appropriate security services, so the court could pay for those people. On creating the force itself, no. A Texas county has only the powers the constitution or a statute gives it, expressly or by necessary implication, and article 102.017 is a spending authorization, not a grant of power to commission a body of licensed peace officers. Texas law lists the categories of peace officer in article 2.12 of the Code of Criminal Procedure and separately authorizes specific bodies (school districts, water districts, transit authorities, and so on) to appoint officers; the security force the question described fit none of those. The court had labeled its members "bailiffs," but who counts as a bailiff in Ector County is set by chapter 53 of the Government Code, which puts the appointment of bailiffs in the hands of the district judges, with the sheriff deputizing them, not the Commissioners Court. Because the premise failed, the opinion did not reach the follow-up question of whether the District Attorney's office could carry the commissions for such a force.

Currency note

This opinion was issued in 2002. 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. Article 102.017 of the Code of Criminal Procedure, the peace-officer categories in article 2.12, and chapter 53 of the Government Code have all been amended since 2002, so confirm the current law before relying on this opinion.

What the opinion meant for those who asked

The Ector County Commissioners Court (what the opinion held for it): The opinion concluded that the court could use the article 102.017 courthouse security fund to pay for the services of peace officers and contract security personnel, but could not itself establish a force of licensed peace officers. That power was not in article 102.017, expressly or by necessary implication.

District judges and the sheriff (what the opinion held for them): The opinion identified chapter 53 of the Government Code as the mechanism for bailiffs in Ector County: section 53.001(a) requires certain district judges (including those of the 70th and 161st courts) to appoint bailiffs, and section 53.007(b) directs the sheriff to deputize them. That authority sat with the judges and the sheriff, not the Commissioners Court.

The District Attorney who asked (the scope of the answer): The opinion declined to reach the final question, whether the DA's office could carry the peace-officer commissions for such a force, because that question assumed the force could be established and the opinion had concluded it could not.

Common questions

Can a Texas commissioners court hire courthouse security?
Under this opinion, it can pay for security services out of the article 102.017 courthouse security fund, including peace officers, deputized bailiffs, deputy sheriffs, deputy constables, and independent contractors providing appropriate security.

So why couldn't it create its own security force?
The opinion explained that a county has only the powers granted by the constitution or statute. Article 102.017 authorizes spending, not the creation of a body of licensed peace officers, and no other statute gave the commissioners court that authority.

Who appoints courthouse bailiffs in Ector County?
Under chapter 53 of the Government Code, the district judges appoint bailiffs and the sheriff deputizes them. The opinion located that authority with the judges and the sheriff, not the commissioners court.

What does "contract security personnel" mean in the statute?
The opinion, relying on a prior letter opinion, read "contract security personnel" in article 102.017(d)(6) to mean independent contractors, not county employees providing courthouse security.

Background and statutory framework

Article 102.017 of the Code of Criminal Procedure imposes a courthouse security fee as a court cost (five dollars on a felony conviction in district court, three dollars on a misdemeanor conviction in justice, county, or district court) and channels the money into a "courthouse security fund" or "municipal court building security fund." Tex. Code Crim. Proc. Ann. art. 102.017(a), (b), (d) (Vernon Supp. 2002). The fund may be used only to provide security for buildings housing the courts, and subsection (d) lists the permissible expenditures, which prior opinions treated as exclusive. The Seventy-sixth Legislature added items to that list, but the relevant one was unaffected. Act of May 3, 1999, 76th Leg., R.S., ch. 110, 1999 Tex. Gen. Laws 546. Under article 102.017(d)(6), the fund may pay for "bailiffs, deputy sheriffs, deputy constables or contract security personnel during times when they are providing appropriate security services." Id. art. 102.017(d)(6).

On the power to create a force, the opinion applied the rule that a county has only those powers expressly granted by the constitution or statute, or necessarily implied. Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). Article 2.12 of the Code of Criminal Procedure enumerates the categories of peace officer, and the Legislature has separately authorized particular bodies to appoint officers, for example a school district under section 37.081 of the Education Code, a water control and improvement district under section 49.216 of the Water Code, and a metropolitan rapid transit authority under section 451.108 of the Transportation Code. No comparable authorization existed for the commissioners court force in question. Because chapter 53 of the Government Code, through sections 53.001(a) and 53.007(b), already specified how Ector County bailiffs are appointed and deputized, the opinion concluded the commissioners court could pay for duly deputized bailiffs, deputies, constables, or independent contractors, but could not itself establish a force of licensed peace officers.

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. art. 102.017(a) (Vernon Supp. 2002)
• Tex. Code Crim. Proc. Ann. art. 102.017(b) (Vernon Supp. 2002)
• Tex. Code Crim. Proc. Ann. art. 102.017(d) (Vernon Supp. 2002)
• Tex. Code Crim. Proc. Ann. art. 102.017(d)(6) (Vernon Supp. 2002)
• Tex. Code Crim. Proc. Ann. art. 2.12 (Vernon Supp. 2002)
• Tex. Educ. Code Ann. § 37.081 (Vernon 1996)
• Tex. Water Code Ann. § 49.216 (Vernon 2000)
• Tex. Transp. Code Ann. § 451.108 (Vernon 1999)
• Tex. Gov't Code Ann. § 53.001(a) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 53.007(b) (Vernon Supp. 2002)
• Act of May 3, 1999, 76th Leg., R.S., ch. 110, 1999 Tex. Gen. Laws 546

Cases:

• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0476
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0476.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

March 12, 2002

The Honorable John W. Smith
Ector County District Attorney
300 North Grant, Room 305
Odessa, Texas 79761

Opinion No. JC-0476

Re: Whether a commissioners court may establish and fund a courthouse security force and related questions (RQ-0418-JC)

Dear Mr. Smith:

You ask a series of questions as to whether the Commissioners Court of Ector County may establish and fund a courthouse security force, funded pursuant to article 102.017 of the Code of Criminal Procedure. We conclude that, while the Commissioners Court may expend the courthouse security fund created by article 102.017 to pay the cost of security personnel, article 102.017 does not empower it to establish a force of licensed peace officers.

Article 102.017(a) of the Code of Criminal Procedure requires a defendant convicted of a felony offense in a district court to pay a five dollar security fee as a cost of court. TEX. CODE CRIM. PROC. ANN. art. 102.017(a) (Vernon Supp. 2002). Similarly, article 102.017(b) requires a defendant convicted of a misdemeanor offense in a justice court, county court, county court at law, or district court to pay a three dollar security fee as a court cost. Id. art. 102.017(b). Such costs are to be paid by the clerks of the respective courts to the treasurer of the county or municipality as appropriate, to be deposited into funds denominated the "courthouse security fund" or the "municipal court building security fund." Id. art. 102.017(d). These funds are to be "used only to finance items when used for the purpose of providing security services for buildings housing a district, county, justice, or municipal court, as appropriate." Id.

Article 102.017(d) provides a list of permissible expenditures from the courthouse security fund. This office has in prior opinions, treated that list as exclusive. See Tex. Att'y Gen. LO-98-026 (county attorney's investigator could not provide courthouse security); Tex. Att'y Gen. Op. No. JC-0014 (1999) (permissible security expenditures did not include microphones). The language of the statute was amended by the Seventy-sixth Legislature to add certain items to the list of permissible expenditures. See Act of May 3, 1999, 76th Leg., R.S., ch. 110, 1999 Tex. Gen. Laws 546. The relevant item for purposes of this opinion, however, was unaffected. Pursuant to article 102.017(d)(6), the fund may be used for "bailiffs, deputy sheriffs, deputy constables or contract security personnel during times when they are providing appropriate security services." TEX. CODE CRIM. PROC. ANN. art. 102.017(d)(6) (Vernon Supp. 2002). This office has already held that the phrase "contract security personnel," in the sense intended by article 102.017(d)(6), means independent contractors: "The phrase . . . does not mean county employees who provide courthouse security." Tex. Att'y Gen. LO-98-026, at 3.

We believe that the plain language of article 102.017(d)(6) permits the Commissioners Court to use the fund to pay for the services of peace officers and contract security personnel who are providing "appropriate security services." Accordingly, we answer your question as to whether it is permissible for the Commissioners to use the fund in this matter in the affirmative.

While the Court may pay for the services of peace officers and security personnel pursuant to article 102.017, that article does not empower the Commissioners Court to establish a security force for the courthouse. Generally, a county has only those powers expressly granted it by constitution or statute, or necessarily implicit in those powers expressly granted. See Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). Article 102.017(d)(6) does not by its terms or by necessary implication permit the Commissioners Court to establish a force of licensed police officers to carry out courthouse security duties.

Article 2.12 of the Code of Criminal Procedure enumerates the various categories of peace officer under Texas law. TEX. CODE CRIM. PROC. ANN. art. 2.12 (Vernon Supp. 2002). The legislature has by statute permitted a variety of state agencies and political subdivisions to appoint such officers. See, e.g., TEX. EDUC. CODE ANN. § 37.081 (Vernon 1996) (school district may commission peace officers); TEX. WATER CODE ANN. § 49.216 (Vernon 2000) (water control and improvement district may commission peace officers); TEX. TRANSP. CODE ANN. § 451.108 (Vernon 1999) (metropolitan rapid transit authority may commission peace officers). There is no such specific statutory authorization for the appointment of the security force your question contemplates, which is not included among the enumerated categories of article 2.12.

Moreover, while you inform us that the Commissioners Court, in creating such a force, has titled its members "bailiffs," which is one of the categories of security personnel whose payment is permissible under article 102.017(d)(6), what constitutes a bailiff in Ector County is, we believe, determined by chapter 53 of the Government Code. Section 53.001(a) of the Government Code requires the judges of certain district courts, including two of the four district courts in Ector County, the 70th and 161st, to appoint bailiffs. TEX. GOV'T CODE ANN. § 53.001(a) (Vernon Supp. 2002). Pursuant to section 53.007(b) of the Government Code, at the request of the judges of those two courts among others, the sheriff of the relevant county "shall deputize" those bailiffs. Id. § 53.007(b). Accordingly, chapter 53 provides an explicit mechanism by which bailiffs in Ector County may become peace officers, and has vested the authority and responsibility for that mechanism in the judges of the 70th and 161st district courts, and the sheriff, rather than the Commissioners Court.

Accordingly, article 102.017 would allow the Commissioners Court to pay for the services of bailiffs duly deputized under section 53.007(b) of the Government Code, or deputy sheriffs or constables, or contract security personnel, that is, independent contractors, to provide courthouse security. It does not, either by its terms or by implication, authorize the Commissioners Court to establish a force of licensed peace officers for that purpose.

Your final question is whether, as a convenience to the Commissioners Court, your office may carry the peace officer's commissions for a security force established by that body. As this question is premised on the supposition that such a force may be so established, and we have determined that this is not the case, we do not consider this question. But see Tex. Att'y Gen. LO-98-026 (power of prosecutor to appoint investigator does not encompass authority to appoint law enforcement officer whose duty is provision of courthouse security services).

SUMMARY

Article 102.017 of the Code of Criminal Procedure provides authority for the Ector County Commissioners Court to expend funds for the provision of courthouse security. However it does not provide authority, either expressly or by necessary implication, for the Commissioners Court to establish a courthouse security force of licensed peace officers.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee