Can a Texas city hire a private company to enforce handicap parking rules?

Plain-English summary

State Representative Angie Chen Button, asking on behalf of the City of Rowlett, wanted to know whether a city could pay a private business to enforce the disabled-parking laws in chapter 681 of the Transportation Code. A business had apparently approached the city offering to do the enforcement, and the city attorney was unsure whether the statute allowed the city to pay for that service.

The AG started with section 681.0101, the provision that lets a political subdivision appoint someone to file charges against people who violate the disabled-parking rules. The statute says a "person" may be appointed, but it does not define "person." Ordinarily the Code Construction Act's broad definition would sweep in corporations and other legal entities. The AG concluded that definition did not fit here, because the same section requires an appointee to be "a United States citizen of good moral character" who takes and subscribes to an oath of office. A company cannot hold citizenship, possess moral character, or swear an oath. So in this context "person" meant a human being, not a business, and a court would likely conclude that section 681.0101 does not let a city appoint a private business to enforce disabled-parking provisions. The AG also noted that an appointee under this section serves as a volunteer and "is not entitled to compensation."

The AG then addressed the bigger question: even if section 681.0101 does not cover a business, is the city otherwise free to hire one? The AG said no, for two reasons. First, chapter 681 spells out exactly who may file disabled-parking charges (a peace officer, a person designated by the political subdivision to enforce parking regulations, or a security officer commissioned under chapter 1702 of the Occupations Code and employed by the owner of private property) and authorizes no one else. The Legislature did expressly allow private contracting for red-light camera enforcement in a different statute, and the AG treated that contrast as a deliberate choice: where the Legislature spoke in one setting and stayed silent in another, the silence is intentional.

Second, the AG explained that regulating and enforcing parking is an exercise of the state's police power, a governmental function. Under long-standing Texas case law, the police power "cannot be abdicated or bargained away," so a city cannot transfer control of a governmental function to a private entity by contract absent specific constitutional authorization. The AG was careful to add the other side of that line: a city may still delegate purely ministerial acts (the tasks "necessary to the transaction of the city's business") as long as it does not hand off the discretionary decisions that are part of the public trust. Whether any particular contract stays on the permissible side of that line, the AG said, is a question of fact that the opinion process cannot resolve.

Currency note

This opinion was issued in 2015. 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.

What the opinion meant for those who asked

The City of Rowlett and other political subdivisions (as the opinion described it): The opinion described section 681.0101 as authorizing only the appointment of a natural person, not a business, to file disabled-parking charges, and described chapter 681 as naming a closed set of enforcers. It described a city as lacking authority to contract with a private business to enforce the chapter's privileged-parking provisions, while leaving open that a city might contract for narrower, ministerial tasks that do not amount to delegating its police power.

Private businesses offering parking-enforcement services (as the opinion described it): The opinion described a private business as falling outside section 681.0101 because it cannot meet the citizenship, moral-character, and oath requirements, and described chapter 681 as not authorizing a business to file disabled-parking charges. It did not say whether some narrower service contract would be permissible; it treated that as a fact question.

Where the AG declined to opine: The opinion stated that whether a particular contract crosses from permissible ministerial delegation into an impermissible delegation of the police power "is a question of fact that cannot be answered in the opinion process." In a footnote, the AG also expressly declined to opine on whether the Legislature's authorization of private enforcement of red-light cameras is itself a permissible delegation of a city's police power. The page does not answer either question, because the AG did not.

Common questions

Can a Texas city pay a private company to write disabled-parking tickets?
The AG concluded a court would likely say no. The statute that allows appointing someone to file disabled-parking charges (section 681.0101) was read to cover only a natural person, and the AG separately concluded that a city is not authorized to contract with a private business to enforce chapter 681's privileged-parking provisions.

Why doesn't the word "person" in the statute include a company?
Because of the other requirements in the same section. The AG explained that an appointee must be a U.S. citizen of good moral character and must take an oath of office, qualities a corporation cannot have. Given that context, the AG concluded "person" means a human being, not a legal entity, even though a broader default definition exists in the Code Construction Act.

Who is actually allowed to enforce disabled-parking laws under chapter 681?
The opinion identified a peace officer, a person designated by the political subdivision to enforce parking regulations, and a security officer commissioned under chapter 1702 of the Occupations Code who is employed by the owner of private property. The AG said the statute authorizes no other person or entity.

The Legislature lets cities contract out red-light camera enforcement. Why not parking?
The AG pointed to that exact contrast. A separate statute expressly authorizes contracting for red-light camera enforcement, but chapter 681 contains no such authorization for disabled-parking citations. The AG treated the Legislature's silence in chapter 681 as intentional, citing the rule that expressing intent in one setting and staying silent in another signals a deliberate choice.

What is the "police power" point about?
Enforcing parking is treated as a governmental function and an exercise of the state's police power. The AG cited Texas cases holding that the police power cannot be bargained away by contract, so a city cannot transfer control of that function to a private business without specific constitutional authorization. A city can still delegate ministerial tasks, but not the discretionary decisions that are part of the public trust.

Background and statutory framework

The request came from Representative Angie Chen Button on behalf of the City of Rowlett, where a private business had proposed to enforce disabled-parking rules and the city attorney questioned whether the city could pay for the service. Chapter 681 of the Transportation Code governs privileged (disabled) parking (Tex. Transp. Code Ann. §§ 681.001-.013 (West 2011 & Supp. 2014); see id. § 681.011 (elements of various offenses)).

Section 681.0101 authorizes a political subdivision to appoint "a person" to file a charge against someone who commits an offense under chapter 681, but it conditions the appointment on requirements that include being "a United States citizen of good moral character who has not been convicted of a felony," taking a prescribed oath of office, and completing a training program; it also provides that the appointee is not a peace officer, may not carry a weapon, and "is not entitled to compensation" (Tex. Transp. Code Ann. § 681.0101(a)-(d); see id. § 681.0101(b)(1)-(2), (d)). Although the Code Construction Act ordinarily defines "person" to include a corporation, organization, and other legal entities (Tex. Gov't Code Ann. § 311.005(2)), that default does not apply where "the statute or context in which the word ... is used requires a different definition" (id. § 311.005). Because a legal entity cannot hold citizenship, possess moral character, or take an oath, the AG concluded that "person" in section 681.0101 refers to a natural person, so a court would likely conclude the section does not authorize appointing a private business.

Turning to whether the city was otherwise authorized to contract with a business, the AG noted that chapter 681 identifies the only enforcers it authorizes: a peace officer, a person designated by a political subdivision to enforce parking regulations, or a security officer commissioned under chapter 1702 of the Occupations Code and employed by the owner of private property (Tex. Transp. Code Ann. § 681.010(a)-(b)). The Legislature expressly authorized private contracting for red-light camera enforcement elsewhere but not for disabled-parking citations (compare Tex. Transp. Code Ann. § 707.003(a)(1), with id. § 681.010(a)-(b); see Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 227 (Tex. App.-Houston [14th Dist.] 1994, writ denied)). The AG applied the canon that legislative silence in one setting, after speaking in another, is intentional (Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 497 (Tex. 2013)).

The AG then grounded the conclusion in the police-power doctrine. A city's regulation and enforcement of parking is an exercise of the state's police power and a governmental function (Tex. Transp. Code Ann. § 542.202(a)(2), (b)(3); Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a)(21); City of Austin v. Daniels, 335 S.W.2d 753, 754 (Tex. 1960)). The police power "cannot be abdicated or bargained away," so a city cannot transfer control of its governmental functions to another entity by contract absent specific constitutional authorization (City of Arlington v. City of Fort Worth, 844 S.W.2d 875, 878 (Tex. App.-Fort Worth 1992, writ denied); Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 843 (Tex. 2010)). A city also may not delegate duties that "call for reason or discretion and which are regarded as part of the public trust" (Burgess v. City of Houston, 718 F.2d 151, 153 (5th Cir. 1983); see Clear Lake City Water Auth. v. Clear Lake Util. Co., 549 S.W.2d 385, 392 (Tex. 1977)). At the same time, a city may "delegate to others the right to perform acts and duties necessary to the transaction of the city's business" even though it may not delegate the right to make decisions affecting city business (City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003)). The AG concluded that whether a particular contract falls within those parameters is a fact question outside the opinion process.

Citations

Statutory provisions:

• Tex. Transp. Code Ann. §§ 681.001-.013 (chapter 681, privileged parking)
• Tex. Transp. Code Ann. § 681.010(a)-(b) (who may file charges under chapter 681)
• Tex. Transp. Code Ann. § 681.0101(a)-(d) (appointment of a person to file disabled-parking charges)
• Tex. Transp. Code Ann. § 681.011 (elements of offenses)
• Tex. Transp. Code Ann. § 707.003(a)(1) (contracting for red-light camera enforcement)
• Tex. Transp. Code Ann. § 542.202(a)(2), (b)(3) (municipal regulation of parking under the police power)
• Tex. Gov't Code Ann. § 311.005, § 311.005(2) (Code Construction Act definition of "person")
• Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a)(21) (regulation of traffic as a governmental function)
• Chapter 1702, Occupations Code (commissioned security officers)

Cases:

• Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 227 (Tex. App.-Houston [14th Dist.] 1994, writ denied)
• Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 497 (Tex. 2013)
• City of Austin v. Daniels, 335 S.W.2d 753, 754 (Tex. 1960)
• City of Arlington v. City of Fort Worth, 844 S.W.2d 875, 878 (Tex. App.-Fort Worth 1992, writ denied)
• Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 843 (Tex. 2010)
• Burgess v. City of Houston, 718 F.2d 151, 153 (5th Cir. 1983)
• Clear Lake City Water Auth. v. Clear Lake Util. Co., 549 S.W.2d 385, 392 (Tex. 1977)
• City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0033
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0033.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 14, 2015

The Honorable Angie Chen Button Opinion No. KP-0033
Chair, Committee on Economic and
Small Business Development Re: Whether chapter 681 of the Transportation
Texas House of Representatives Code authorizes a political subdivision to
Post Office Box 2910 contract with a private business to enforce the
Austin, Texas 78768-2910 privileged parking laws within that chapter
(RQ-0013-KP)

Dear Representative Button:

Your question, made on behalf of the City of Rowlett, concerns the privileged parking provisions found in chapter 681 of the Transportation Code. [1] See generally TEX. TRANSP. CODE ANN. §§ 681.001-.013 (West 2011 & Supp. 2014). Section 681.0101 authorizes a political subdivision to appoint a volunteer to "file a charge against a person who" violates the disabled parking provisions in chapter 681. Id. § 681.0101(a) (West 2011); see also id. § 681.011 (identifying the elements of various offenses under chapter 681). You ask to what extent section 681.0101 would apply to a private business in terms of authorizing the City of Rowlett to pay or prohibiting the city from paying the business to similarly enforce disabled parking provisions. Request Letter at 1.

Section 681.0101 provides:

(a) A political subdivision may appoint a person to have authority to file a charge against a person who commits an offense under [chapter 681].

(b) A person appointed under this section must:

(1) be a United States citizen of good moral character who has not been convicted of a felony;

(2) take and subscribe to an oath of office that the political subdivision prescribes; and

(3) successfully complete a training program of at least four hours in length developed by the political subdivision.

(c) A person appointed under this section:

(1) is not a peace officer;

(2) has no authority other than the authority applicable to a citizen to enforce a law other than this chapter; and

(3) may not carry a weapon while performing duties under this section.

(d) A person appointed under this section is not entitled to compensation for performing duties under this section or to indemnification from the political subdivision or the state for injury or property damage the person sustains or liability the person incurs in performing duties under this section.

TEX. TRANSP. CODE ANN. § 681.0101(a)-(d) (West 2011). As written, section 681.0101 authorizes "a person" to be appointed to enforce disabled parking violations. That person, however, "is not entitled to compensation." Id. § 681.0101(d). Chapter 681 does not define the term "person" for purposes of that chapter, nor does the Transportation Code generally supply a definition that would be applicable to section 681.0101. The Code Construction Act defines the term "person" to include a "corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity." TEX. GOV'T CODE ANN. § 311.005(2) (West 2013). But when the "the statute or context in which the word ... is used requires a different definition," the default definition from the Code Construction Act does not apply. Id. § 311.005. In subsection 681.0101(b), the Legislature has specified that an appointee must, among other requirements, be "a United States citizen of good moral character" and take an oath of office. TEX. TRANSP. CODE ANN. § 681.0101(b)(1)-(2) (West 2011). A legal entity such as a private business cannot possess such characteristics as citizenship and moral character or subscribe to an oath of office. Thus, in the context of section 681.0101, the term "person" likely refers to a natural person and not a legal entity. Accordingly, a court would likely conclude that section 681.0101 does not authorize a political subdivision to appoint a private business to enforce disabled parking provisions.

That a private business does not fall within the scope of section 681.0101, however, does not necessarily mean that the City of Rowlett is otherwise authorized to pay a private business to enforce disabled parking provisions. [2] Chapter 681 specifies that "[a] peace officer or a person designated by a political subdivision to enforce parking regulations" or "[a] security officer commissioned under Chapter 1702, Occupations Code, and employed by the owner of private property may file a charge against a person who commits an offense under [chapter 681]." Id. § 681.010(a)-(b). The statute authorizes no other person or entity to enforce the provisions of chapter 681. But cf. id. § 707.003(a)(1) (authorizing "[a] local authority that implements a photographic traffic signal enforcement system" to "contract for the administration and enforcement of the system" (emphasis added)); see also Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 227 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (stating that a private corporation was not authorized to regulate highway traffic in front of its facility because state law authorized only state and local governing authorities and their agents to regulate traffic on public roadways). "When the Legislature expresses its intent regarding a subject in one setting, but ... remains silent on that subject in another, [a court] generally abide[s] by the rule that such silence is intentional." Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 497 (Tex. 2013). Here, the Legislature has expressly authorized private enforcement of a traffic regulation with respect to red light cameras but not with respect to citations for disabled parking offenses. [3] Compare TEX. TRANSP. CODE ANN. § 707.003(a)(1) (West 2011), with id. § 681.010(a)-(b). Thus, a court would likely conclude that a political subdivision is not authorized to contract with a private business to enforce the privileged parking provisions of chapter 681.

In addition, a city's regulation and enforcement of parking is an exercise of the state's police power, which is a governmental function. See id. § 542.202(a)(2), (b)(3) (expressly authorizing a city to regulate the parking of a vehicle "in the reasonable exercise of the police power" and defining such regulation as the "criminal, civil, and administrative enforcement" of a state law or a municipal ordinance); see also TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(21) (West Supp. 2014) (defining a city's governmental functions to include the "regulation of traffic"); City of Austin v. Daniels, 335 S.W.2d 753, 754 (Tex. 1960) (recognizing the regulation of traffic to include "the control of parking"). When it discharges a governmental function,

a municipality, as an agent of the state, is exercising the state's police power, which is a grant of authority from the people to the government for the protection of the public health, safety, and welfare. As such the police power cannot be abdicated or bargained away. It is inalienable, even by express grant. Thus, a city cannot, by contract or otherwise, transfer control of its governmental functions to another entity, absent specific constitutional authorization.

City of Arlington v. City of Fort Worth, 844 S.W.2d 875, 878 (Tex. App.-Fort Worth 1992, writ denied) (citations omitted). As the Texas Supreme Court has stated, municipalities

may make authorized contracts, but they have no power, as a party, to make contracts or pass bylaws which shall cede away, control or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties.

Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 843 (Tex. 2010) (quotation marks omitted). A city may not, for example, delegate duties "which call for reason or discretion and which are regarded as part of the public trust." Burgess v. City of Houston, 718 F.2d 151, 153 (5th Cir. 1983); see also, e.g., Clear Lake City Water Auth. v. Clear Lake Util. Co., 549 S.W.2d 385, 392 (Tex. 1977) (power to determine, on any particular date, whether it was in the public's best interest to extend water and sewer service to a particular person or entity could not be bargained away). At the same time, although "[a] city's governing body may not delegate the right to make decisions affecting the transaction of city business," a city may "delegate to others the right to perform acts and duties necessary to the transaction of the city's business." City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003). Thus, there may be circumstances under which a city could contract with a private business to perform particular acts that are necessary for the enforcement of disabled parking provisions that do not go so far as to constitute an impermissible delegation of the city's police power. Whether any particular contract falls within these parameters is a question of fact that cannot be answered in the opinion process.

SUMMARY

A court would likely conclude that section 681.0101 of the Transportation Code does not authorize a political subdivision to appoint a private business to enforce the privileged parking provisions of chapter 681 because a private business is not a "person" under section 681.0101.

A court would likely conclude that a political subdivision is not authorized to contract with a private business to enforce the privileged parking provisions of chapter 681.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter & attached Referral Letter from Honorable Angie Chen Button, Chair, Comm. on Econ. & Small Bus. Admin., Tex. House of Representatives, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 18, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" & "Referral Letter").

[2] See Referral Letter at 1-2 ("The City Attorney had questioned whether the City could pay our Business for these services, because he understood that the code was intended to include businesses .... It is our belief that [section 681.0101] was intended to cover individuals wanting to volunteer. We do not believe it is intended to prevent businesses, such as ours from doing business with a municipality.").

[3] We express no opinion on whether this legislative authorization of private enforcement of red-light cameras constitutes a permissible delegation of a city's police power, as discussed hereafter.