Texas Attorney General Opinion: GA-0229 Page: 7 of 14
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The Honorable Matt Bingham - Page 7
However, section 351.043(c) on its face requires a federal officer to pay fees to the sheriff; it does
not vest the sheriff with the authority to enter into a contract.
Moreover, the fact that the federal officer is liable to the sheriff or jailer rather than the
commissioners court for fees is not legally significant. The statutory predecessors to section
351.043(c) date from before the 1948 adoption of article XVI, section 61 of the Texas Constitution
generally abolishing fees of office4 and requiring all counties to pay sheriffs on a salary basis. See
TEX. CONST. art. XVI, 61(c) ("it shall be mandatory upon the Commissioners Courts to compensate
all sheriffs . . . on a salary basis"). Even prior to this requirement, courts held that fees received by
sheriffs for boarding federal prisoners were fees of office, accountable to the commissioners court
in determining the maximum salary sheriffs could retain for their services. See Orndorffv. El Paso
County, 295 S.W. 219, 221 (Tex. Civ. App.-El Paso 1927, writ ref'd); Binford v. Harris County, 261
S.W. 535, 537 (Tex. Civ. App.-Galveston 1924, writ ref'd). And significantly, the Texas
Constitution and the Local Government Code now require county sheriffs and other officials paid
on a salary basis to deposit any fees of office, fees they collect for performing their official duties,
in the county treasury. See TEX. CONST. art. XVI, 61(d) ("All fees earned by district, county and
precinct officers shall be paid into the county treasury where earned for the account of the proper
fund ... ."); TEX. LOC. Gov'T CODE ANN. 154.002 (Vernon 1999) (a district, county, or precinct
officer "who is paid on a salary basis receives the salary instead of. .. fees . .. the officer would
otherwise be authorized to keep"), 154.003 ("A district, county, or precinct officer who is paid an
annual salary shall charge and collect in the manner authorized by law all fees, commissions, and
other compensation permitted for official services performed by the officer. The officer shall dispose
of the collected money as provided by Subchapter B, Chapter 113."); see also id. 113.021 (a) ("The
fees, commissions, funds, and other money belonging to a county shall be deposited with the county
treasurer by the officer who collects the money."). Under these provisions, a sheriff would be
required to deposit in the county treasury any money paid by the federal government as a section
351.043 fee.
In sum, we conclude that section 351.043 does not authorize a sheriff to contract to house
federal prisoners in the countyjail. As no other statute vests such authority in a sheriff, we conclude
that a sheriff is not authorized to enter into a contract to house federal prisoners in the county jail.
2. Commissioners Court Approval Generally
In a related question in your supplemental letter, you ask more generally about
the authority of the sheriff or any other elected official "to sign contracts and encumber the county
without approval of the commissioners court." Supplemental Request Letter, supra note 1, at 1
(question 1); see also Request Letter, supra note 1, at 1 (question 1 asking about the authority of
4See Act of June 5, 1947, 50th Leg., R.S., H.R.J. Res. No. 36, 1947 Tex. Gen. Laws 1193 (proposing a
constitutional amendment to require commissioners courts to compensate on a salary basis (i) constables, deputy
constables, and precinct law enforcement officers beginning January 1, 1949, and (ii) in counties having a population
of less than 20,000, sheriffs, deputy sheriffs, county law enforcement officers including sheriffs also performing the
duties of assessor and collector of taxes and their deputies beginning January 1, 1949). The statutory predecessors to
section 351.043 date from 1856. See TEX. LOC. GOV'T CODE ANN. 351.043 historical and statutory note (Vernon
1999).(GA-0229)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0229, text, August 9, 2004; (https://texashistory.unt.edu/ark:/67531/metapth275125/m1/7/?rotate=180: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.