Untitled Texas Attorney General Opinion: KP-0479

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 27, 2025

Ms. Cindy Havelka
Fayette County Auditor
143 North Main Street, Suite A
La Grange, Texas 78945

Opinion No. KP-0479

Re: Authority of a sheriff to contract with other local governments and private entities for
the off-duty work of sheriff deputies in certain circumstances (RQ-0538-KP)

Dear Ms. Havelka:

You present four scenarios involving security services performed by “off-duty” deputy
sheriffs and ask about the authority of a sheriff’s department in connection with the provision of
such services. 1 You first ask whether the sheriff’s department may “enter into a contract for
patrolling” within a city “using off-duty deputies.” Request Letter at 1. You explain that the City
of Round Top (the “City”) “accepted a contract with the Fayette County Sheriff[’s] Department
for off-duty Deputies to patrol” in the City.2 Id. You state that, under the terms of the contract, the
City will pay individual deputies directly for the hours worked. Id. You provide us a copy of the
contract in question, noting that it was never presented to the commissioners court. Id.; Attachment
at 1–2 (“Vendor Security Agreement”). In a related question, you ask whether the sheriff’s
department may “enter into a contract with any business or individual” for security services
“performed while off-duty.” Request Letter at 1. You explain that “[t]he Fayette County Sheriff[’s]
Department has been entering into contracts with businesses, governmental entities, and
individuals” for private-security services but you question the authority of the sheriff’s department
to do so “without Commissioner’s Court approval.” Id. With regard to private-security services
for school district sporting events, you question whether deputies providing the services may “be
paid directly” by the school district, as opposed to an agreement being made between the school
district and the commissioners court, “[s]ince the School Districts are . . . governmental entit[ies].”

1
See Letter and Attachment from Ms. Cindy Havelka, Fayette Cnty. Auditor, to Hon. Ken Paxton, Tex. Att’y
Gen. at 1–2 (Apr. 26, 2024), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2024/
RQ0538KP.pdf (“Request Letter” and “Attachment,” respectively). We understand your use of the term “off duty” to
communicate that the relevant services are provided outside of that obligated to Fayette County. See, e.g., NEW
OXFORD AMERICAN DICTIONARY 541 (3d ed. 2010) (defining “off duty” as “not engaged[] in one’s regular work”).
2
You state that the contract is for four-hour shifts on Thursday, Friday and Saturday evenings beginning at
8 p.m. Request Letter at 1.
Ms. Cindy Havelka - Page 2

Id. at 1–2. Finally, you ask about the propriety of providing private-security services at a training
facility in the absence of a mass gathering of people in the area. Id.

As a preliminary matter, this office received a brief from the Fayette County Attorney’s
Office on behalf of the sheriff’s office disputing the basic nature of the contracts that form the
basis for your questions. 3 The Brief asserts that Vendor Security Agreements exist solely between
a law enforcement officer in their individual capacity and the vendor seeking private-security
services, despite the use of sheriff’s office letterhead. Brief at 3 (stating vendor payments go
directly to the employee and do not pass through county accounts or co-mingle with county funds).

While this office cannot resolve disputed facts and generally accepts a requestor’s recited
facts as true, it does not construe contracts. See Tex. Att’y Gen. Op. Nos. GA-0738 (2009) at 2 n.3
(“We accept the facts [presented in the request letter] as true.”), KP-0400 (2022) at 4 n.3 (“This
office does not resolve disputes facts.”), KP-0435 (2023) at 1 (explaining we do not construe
contracts in the opinion process). Thus, we do not determine the nature of the contractual
relationship that exists in the scenarios you present nor will we opine on their validity. Instead, we
can generally advise you only on the legal principles that pertain to your questions.

The commissioners court generally possesses constitutional authority to contract on
behalf of a county for matters involving “county business.”

The commissioners court serves as the “administrative head of county government” and is
constitutionally charged with exercising “powers and jurisdiction over all county business.”
Guynes v. Galveston Cnty., 861 S.W.2d 861, 863 (Tex. 1993) (quoting TEX. CONST. art. V,
§ 18(b)); see also, e.g., Comm’rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 79 (Tex. 1997)
(explaining that these powers and duties “include aspects of legislative, executive, administrative,
and judicial functions”). It follows that “[t]he authority . . . to make contracts [on a county’s] behalf
is strictly limited to that conferred, either expressly or by fair and necessary implication, by the
Constitution and laws of this state.” Childress Cnty. v. State, 92 S.W.2d 1011, 1016 (Tex. 1936)
(collecting cases); see also, e.g., Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)
(describing the commissioners court as “the general business and contracting agency of the
county,” which “alone has authority to make contracts binding on the county[] unless otherwise
specifically provided by statute”). As such, a matter must involve “county business” for an
associated contract to fall within the scope of the commissioners court’s constitutional mandate.
See, e.g., Sun Vapor Elec. Light Co. v. Kenan, 30 S.W. 868, 868 (Tex. 1895) (explaining that “the
administration of . . . a dissolved corporation and the payment of its debts are not such business”);
see also, e.g., Glenn v. Dallas Cnty. Bois d’Arc Island Levee Dist., 275 S.W. 137, 145 (Tex. App.—
Dallas 1923, writ ref’d) (describing “county business” as “matters that are of public concern to the
people of the county”).

On this backdrop, “[c]ommissioned peace officers in this state have long engaged in the
practice of supplementing their incomes as commissioned peace officers by working during their
off-duty hours as private security guards.” Tex. Att’y Gen. Op. No. GA-0256 (2004) at 1.

3
Brief from Mr. Blake A. Watson, Assistant Fayette Cnty. Att’y, and Mr. Keith Korenek, Fayette Cnty.
Sheriff, to Hon. Ken Paxton, Tex. Att’y Gen. at 5 (June 5, 2024) (“Brief”) (on file with the Op. Comm.).
Ms. Cindy Havelka - Page 3

Precedent likewise observes that law enforcement officers often engage in private employment,
unrelated to their county service, in exchange for compensation. See, e.g., State ex rel. Hightower
v. Smith, 671 S.W.2d 32, 35 n.1 (Tex. 1984) (distinguishing an official misconduct situation
involving the sheriff’s use of county equipment for personal gain from “the usual arrangement
where an officer agrees to provide off-duty security in return for compensation” (emphasis
omitted)); Watson v. Newman, 299 S.W.3d 129, 129 (Tex. 2009) (Willett, J., joined by Hecht, J.,
dissenting) (acknowledging in a dissent to a petition review rehearing denial that “[l]aw-
enforcement professionals throughout Texas earn extra money by moonlighting as private security
officers” and remarking on the “ubiquity” of the practice).

In fact, a variety of statutes countenance the provision of extracurricular security services
by law enforcement officers. The Occupations Code, for example, permits a peace officer to
engage in private work “as a patrolman, guard, extra job coordinator, or watchman” without a
private security license if, among other things: (1) the recipient of the services or a licensed security
guard company directly employs him, regardless of whether the relationship is as employee-
employer or on an individual contractual basis; and (2) the officer otherwise works as a paid peace
officer for a state or political subdivision for at least thirty-two hours a week with employee
benefits. TEX. OCC. CODE § 1702.322(1). The Government Code also endorses private law
enforcement work, subject to reasonable conditions adopted by the Texas Department of Public
Safety. TEX. GOV’T CODE § 411.0077.

Law enforcement services that involve county business, on the other hand, are separately
treated under other statutory provisions. See, e.g., TEX. LOC. GOV’T CODE § 362.002(b)
(authorizing the county “by resolution or order of its governing body [to] enter into an agreement
with a municipality, joint airport, or county to form a mutual aid law enforcement task force to
cooperate in criminal investigations and law enforcement”); TEX. GOV’T CODE §§ 791.011(a),
(d)(1) (authorizing local governments to contract with each other to perform governmental
functions and requiring such contracts to be “authorized by the governing body of each party to
the contract”), 791.003(3)(A) (defining “[g]overnmental functions and services” to include “police
protection and detention services”). The same is true of statutes that confer limited authority to
enter such contracts into the hands of local law enforcement officials. See, e.g., TEX. GOV’T CODE
§ 511.012(b) (authorizing agreements between sheriffs regarding the transfer and receipt of
prisoners in certain circumstances); TEX. EDUC. CODE § 37.081(a)(2) (authorizing a memorandum
of understanding between “a local law enforcement agency” and a school district board of trustees
for the provision of school resource officers). But to the extent such contracts fall outside of these
limited authorities, the commissioners court traditionally maintains its exclusive power “to make
contracts that are binding on the county.” Anderson, 152 S.W.2d at 1085; see also, e.g., TEX. LOC.
GOV’T CODE § 351.04155(a), (b)(2) (specifying when certain contract renewals “are subject to the
approval of the commissioners court”).

As a result, a law enforcement officer may enter into a private contract for security
services—outside of their work for the county—without necessarily implicating “county business”
for which the commissioners court is responsible.
Ms. Cindy Havelka - Page 4

The status of a school district as a political subdivision does not affect its statutory
authority to directly contract with law enforcement officers for private-security work.

An independent school district “is a political subdivision with only those powers assigned
to it by the Legislature.” Pecos Cnty. Appraisal Dist. v. Iraan-Sheffield Indep. Sch. Dist., 672
S.W.3d 401, 413 (Tex. 2023). The Legislature broadly gives school district trustees “the exclusive
power and duty to govern and oversee the management of the public schools of the district.” TEX.
EDUC. CODE § 11.151(b). In particular, the Legislature authorizes school district trustees to “enter
into contracts as authorized” by the Education Code or other law. Id. § 11.1511(c)(4). Pursuant to
this authority, for example, a school district may enter a memorandum of understanding with a
county “that is the employing political subdivision of commissioned peace officers for the
provision of school resource officers.” Id. § 37.081(a)(2) (authorizing school resource officers).

But a “school resource officer” is separately defined in the Occupations Code as “a peace
officer who is assigned by the officer’s employing political subdivision to provide a police
presence at a public school,” and “[t]he term does not include a peace officer who provides law
enforcement at: (1) a public school only for extracurricular activities; or (2) a public school event
only for extracurricular activities.” TEX. OCC. CODE § 1701.601 (emphasis added). The Education
Code likewise distinguishes between a “school resource officer” and “a commissioned peace
officer employed as security personnel.” TEX. EDUC. CODE § 37.0814(b) (emphasis added); see
also, e.g., id. § 37.081(d)(3) (referencing each independently). The authority to contract for the
latter is separately detailed from the authority to contract with a county. Id. § 37.081(a)(1); accord
id. § 37.0814(b)(3) (expressly indicating the same).

Your inquiry, of course, references the independent provision of private-security services
by a law enforcement officer—outside of his or her work for the county—for school sporting
events. Request Letter at 1–2. An arrangement of this nature does not involve the provision of
“school resource officer” services, TEX. OCC. CODE § 1701.601, which would fall within the scope
of county business like that subject to a memorandum of understanding between the school district
and county itself, TEX. EDUC. CODE § 37.081(a)(2). Private-security arrangements of this nature
instead fall within the scope of a school district’s statutory authority to separately “employ or
contract with security personnel.” Id. § 37.081(a)(1). Consequently, the status of a school district
as a political subdivision does not affect its statutory authority to contract for private-security
services provided by law enforcement officers outside of their county duties.

No statutory provision conditions the provision of private-security services on the
presence of a mass gathering of people.

Occupations Code Chapter 1702 regulates the provision of private-security services. See
TEX. OCC. CODE §§ 1702.001–.389. As previously mentioned, subsection 1702.322(1) authorizes
a peace officer to work “as a patrolman, guard, extra job coordinator, or watchman” without a
private security license if certain conditions are met. Id. § 1702.322(1). But none of the conditions
for the provision of private-security work by a law enforcement officer requires the presence of a
mass gathering of people. See id.
Ms. Cindy Havelka - Page 5

To be sure, law enforcement officers play a role in ensuring public safety and order at
events that qualify as a “mass gathering” under the Texas Mass Gatherings Act. See TEX. HEALTH
& SAFETY CODE §§ 751.001–.013. The sheriff must investigate and report on preparations for the
mass gathering, for example, and he may inspect the event itself and order the correction of any
violations of public safety standards prescribed by state and local laws, rules, and orders. Id.
§§ 751.005(d), .012(c). But even if the deployment of law enforcement officers were to occur
during a period of county service, “decisions as to the deployment of law enforcement officers
within the county are left to [the sheriff’s] discretion and judgment since this matter is not
specifically prescribed by law.” Weber v. City of Sachse, 591 S.W.2d 563, 567 (Tex. App.—Dallas
1979, writ dism’d); see also, e.g., Tex. Att’y Gen. Op. No. KP-0111 (2016) at 3 (citing Weber for
the proposition that “a commissioners court generally may not interfere with the sheriff’s
responsibility to deploy law enforcement officers and vehicles”).

We thus find no basis to conclude that, under the facts of your request, the provision of
private-security services must be conditioned on a mass gathering of people.
Ms. Cindy Havelka - Page 6

S U M M A R Y

Only the commissioners court may generally contract for the
authorized provision of law enforcement services involving county
business.

Texas law recognizes the practice of law enforcement
officers providing private-security services, outside of that provided
to a county, for direct compensation.

The status of a school district as a political subdivision does
not affect its statutory authority to directly contract for private-
security services by a law enforcement officer.

No statute conditions the provision of private-security
services on the presence of a mass gathering of people.

Very truly yours,
f
KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

JOSHUA C. FIVESON
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee