Full Opinion

KE PAXTO ATTORNEY GENERAL OF TEXA August 20, 2026 Mr. Dwayne Gott, CPA Liberty County Auditor 310 Main Street Liberty, Texas 77575 Opinion No. KP-0524 Re: Authority of a county commissioners court to adopt a policy prohibiting use of county- owned law enforcement vehicles in the performance of private security jobs outside the county (RQ-0518-KP) Dear Mr. Gott: You ask three related questions about the use of county-owned law enforcement vehicles. 1 You explain that “[i]t is currently the policy of the Sheriff’s Department and a Constable to allow county-owned law enforcement vehicles to be used by their deputies for travel to and in the performance of [private security] jobs outside of Liberty County.” Request Letter at 2. Your first two questions pertain to where the authority to set a policy addressing such use resides. Id. at 1. Specifically, you ask whether the commissioners court may adopt a policy prohibiting this use of county vehicles and whether a sheriff’s or constable’s office may adopt a policy permitting such use. Id. In your final question, you ask whether a policy allowing county-owned vehicles to be used for private security work in another county would violate article III, subsection 52(a) of the Texas Constitution. Id. Because constitutionality may shape our analysis of your other questions, we examine that issue first. A policy allowing county-owned vehicles to be used for private security jobs outside the county satisfies article III, subsection 52(a) only if the use is not gratuitous, a legitimate public purpose is the policy’s predominant objective, and the county retains control over the vehicles. Article III, subsection 52(a) of the Texas Constitution is one of several “Gift Clauses” that originally “arose from skepticism about entanglement between public funds and private 1 See Letter from Dwayne Gott, CPA, Liberty Cnty. Auditor, to Honorable Ken Paxton, Tex. Att’y Gen. at 1 (Oct. 23, 2023), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2023/RQ0518KP.pdf (“Request Letter”). Mr. Dwayne Gott, CPA - Page 2 enterprise.” 2 JPMorgan Chase Bank, N.A. v. City of Corsicana, No. 24-0102, 2026 WL 1261549, at *1 (Tex. May 8, 2026). These provisions were “intended to prevent the application of public funds to private purposes; in other words, to prevent the gratuitous grant of such funds to any individual, corporation, or purpose whatsoever.” Byrd v. City of Dallas, 6 S.W.2d 738, 740 (Tex. [Comm’n Op.] 1928). Relevant here, subsection 52(a) prohibits the Legislature from “authoriz[ing] any county . . . to lend its credit or to grant public money or thing of value” to a private party. 3 TEX. CONST. art. III, § 52(a). This prohibition reaches beyond the expenditure of funds to encompass the use of other valuable public resources, including a commissioners court permitting “the use of county labor, materials or equipment for other than public use.” Godley v. Duval Cnty., 361 S.W.2d 629, 630 (Tex. Civ. App.—San Antonio 1962, no writ); see also Ex parte Conger, 357 S.W.2d 740, 742 (Tex. 1962) (holding that a county commissioner’s use of county equipment “on privately owned property to furnish parking facilities for the use of members in attending services at their church is not for a public use or purpose”). In evaluating compliance with subsection 52(a), the Texas Supreme Court has distilled the “various cumbersome ‘tests’ and ‘requirements’ and ‘prongs’ into three principles” as follows: A challenged expenditure satisfies [subsection] 52(a)’s Gift Clause when (1) the expenditure is not gratuitous but instead brings a public benefit; (2) the predominant objective is to accomplish a legitimate public purpose, not to provide a benefit to a private party; and (3) the government retains control over the funds to ensure that the public purpose is in fact accomplished. Borgelt, 692 S.W.3d at 301 (emphasis omitted). These principles primarily stem from the Court’s Texas Municipal League decision. Id. at 300 (summarizing Tex. Mun. League Intergov’tl Risk Pool v. Tex. Workers’ Comp. Comm’n, 74 S.W.3d 377 (Tex. 2002)). In restating that case’s legal framework, the Court in Borgelt was clear that it “aim[ed] only to eliminate the complexity of how Texas Municipal League articulated the test” while expressly “disclaim[ing] any substantive deviation from its analysis or from the precedents that it cited.” Id. at 301 n.15. Accordingly, we apply these principles, along with court decisions and legal opinions interpreting Texas Municipal League, to your question regarding subsection 52(a). Turning to the first principle, a political subdivision’s grant of a valuable public resource, such as the private use of a county vehicle, “is not ‘gratuitous’ if the political subdivision receives return consideration.” Tex. Mun. League, 74 S.W.3d at 383. This requires receipt of “only sufficient—not equal—return consideration” in exchange for allowing such use. Id. at 384. A 2 The Texas Supreme Court has noted that “our Constitution also contains a Gift Clause specifically relevant to local governments.” Borgelt v. Austin Firefighters Ass’n, IAFF Loc. 975, 692 S.W.3d 288, 299 n.9 (Tex. 2024) (citing TEX. CONST. art. XI, § 3). However, the Court in Borgelt “express[ed] no opinion about whether this provision has any meaning that is materially distinct from [subsection] 52(a) or the other Gift Clauses that the parties cite.” Id. Because your request similarly makes no reference to article XI, section 3, we too analyze your inquiry solely under subsection 52(a). 3 We note that the phrase “thing of value” is unique to subsection 52(a) and does not appear in the Constitution’s other Gift Clause provisions. See, e.g., TEX. CONST. art. III, §§ 50, 51; id. art. XI, § 3; id. art. XVI § 6(a). Mr. Dwayne Gott, CPA - Page 3 vehicle use policy would fall short of this requirement if it authorized the use of county-owned vehicles either “‘for uses not related to . . . governmental duties,’ or for no particular use at all, i.e., ‘as a gratuity.’” See Borgelt, 692 S.W.3d at 302 n.16 (citation omitted). But your request concerns a policy that permits deputies to use county law enforcement vehicles for a specific purpose— “travel to and in the performance of [private security] jobs outside of Liberty County.” Request Letter at 2. You do not identify any governmental duties purportedly served by allowing the use of county vehicles in this manner. See generally id. However, some out-of-county uses may bear a sufficiently close relationship to official duties to satisfy this first principle. The use of county-owned vehicles by a deputy sheriff or deputy constable may be non- gratuitous when fulfilling certain statutorily authorized duties in other counties. See, e.g., TEX. LOC. GOV’T CODE §§ 86.021(d) (allowing a constable to serve civil process “in a county contiguous to the constable’s county”), 362.001–.004 (allowing law enforcement officers from one county, including deputy sheriffs and deputy constables, to serve in other counties under certain circumstances); see also TEX. GOV’T CODE § 311.021(5) (stating the Legislature’s intent in enacting a statute should be presumed to be that the “public interest is favored over any private interest”). This is likely, for example, in cases of a declared disaster, which allow for county resources to be deployed elsewhere at the governor’s direction or pursuant to a request for mutual aid assistance. See TEX. GOV’T CODE §§ 418.017(a) (“The governor may use all available resources . . . of political subdivisions that are reasonably necessary to cope with a disaster.”), 418.111 (creating the Texas Statewide Mutual Aid System), 418.107(c) (“A local government entity may render mutual aid to other local government entities under mutual aid agreements or the system.”). Additionally, this office has concluded that authorizing deputy sheriffs to use county vehicles for off-duty security work within the county could be valid if sufficiently tied to governmental duties. See Tex. Att’y Gen. Op. No. GA-0480 (2006) at 2–3. Specifically, Opinion GA-0480 found that such use could fulfill a sheriff’s statutory duty “to conserve the peace within the county.” Id. at 2; see also TEX. CODE CRIM. PROC. art. 2A.063 (“A sheriff is a conservator of the peace in the sheriff’s county.”). Because on-duty use outside the county and certain off-duty uses within the county may satisfy the first Borgelt principle, we cannot conclude as a matter of law that out-of-county private security use of a county vehicle invariably fails this threshold inquiry. The second principle requires that “the predominant objective is to accomplish a legitimate public purpose, not to provide a private benefit.” Borgelt, 692 S.W.3d at 304. Challengers under subsection 52(a) bear the burden of “clearly” demonstrating that the “predominant purpose” of authorizing private use of a public resource is not “to accomplish a legitimate public purpose.” Id. at 304; see also id. at 307 (finding that certain “uses advance a public purpose—or, at the very least, it is not clear that they do not”). Of particular relevance, “[t]he public purpose to be served is not the general good of the public, but a specific purpose of the” county that provides the resources. Tex. Att’y Gen. Op. No. KP-0237 (2019) at 2 (quoting Tex. Att’y Gen. Op. No. KP- 0204 (2018) at 3); see also Tex. Att’y Gen. Op. Nos. GA-0743 (2009) at 2, GA-0664 (2008) at 4. While “some private benefit will almost inevitably arise” when government provides benefits to private entities or individuals, courts do not “treat such an inevitability as a poison pill that dooms a much larger public objective.” Borgelt, 692 S.W.3d at 304. For example, “maintaining a stable employment relationship” between a public employer and its employees and Mr. Dwayne Gott, CPA - Page 4 ensuring that a governmental entity “better serves the public” are both “important public purposes,” even where “accomplishing those purposes also leads to some collateral private benefit.” Id. at 305; see also Walker v. City of Georgetown, 86 S.W.3d 249, 260 (Tex. App.— Austin 2002, pet. denied) (observing that a public purpose may still be a policy’s predominant purpose even when use of a government resource “incidentally benefits” a private entity). However, “an otherwise-illegal transfer to a private recipient with a mere bauble of public purpose” will not pass constitutional muster, “[e]ven if such a transfer technically complies with the ‘gratuity’ requirement.” Borgelt, 692 S.W.3d at 304. As explained by Justice Young on behalf of the Borgelt majority, “the Gift Clause still forbids a transfer when the public purpose is the caboose rather than the engine.” Id. We caution that allowing county vehicles to be used for private security work in another county could substantially benefit private interests. And even where a legitimate public purpose exists, that purpose must be specific to the county that owns the vehicle rather than to another county in which the use takes place. Accordingly, it is especially important for the county to consider whether the public purpose underlying its authorization of vehicle use outside the county advances the sheriff’s duty to keep the peace within his jurisdiction or some other public purpose of similar importance. While policies such as the one you describe risk violating Borgelt’s second principle, we cannot say as a matter of law that a public purpose could never predominate over private benefits. The third principle requires the county to “retain public control” over public resources “to ensure that the public purpose is accomplished and to protect the public’s investment.” Id. at 308 (quoting Tex. Mun. League, 74 S.W.3d at 384). Under this principle, a governmental entity “cannot make a ‘no-strings-attached’ payment to” a private party. Id. Here, the requisite control may be accomplished through a policy that requires county-owned vehicles to be used for the county’s benefit. The policy could, for example, require the sheriff or constable to deny requests to use county vehicles under certain specified circumstances. See Borgelt, 692 S.W.3d at 309 (finding adequate control where a fire chief “retains authority to deny” the requested use of a public resource “for unauthorized purposes” as well as for “even the purest uses . . . if the department’s operational needs require otherwise”). The policy could also set forth the disciplinary consequences for misuse of county vehicles. See id. (discussing the retention of “managerial control,” including the right to “impose discipline, including potentially terminating the firefighter’s employment”). Here, you tell us the sheriff and one of the county’s constables currently have policies in place addressing the use of county vehicles, while the commissioners court anticipates adopting its own vehicle use policy going forward. Request Letter at 2. Determining whether these policies provide adequate control would require construing the specific policies themselves—a matter we generally leave for the relevant local authority to determine in the first instance. See Tex. Att’y Gen. Op. No. KP-0111 (2016) at 4. We therefore do not decide whether the specific policies you describe comply with subsection 52(a), instead concluding only that such a policy is not invariably unconstitutional and may satisfy the provision if properly limited. As the foregoing demonstrates, compliance with subsection 52(a) is a threshold condition that shapes the remaining questions. A policy authorizing a gratuitous or predominantly private use of county vehicles is impermissible regardless of which officer adopts it. But if the relevant Mr. Dwayne Gott, CPA - Page 5 policy does pass constitutional muster, determination of which entity or officer is authorized to adopt such a policy remains. Thus, we next address your other two questions, which essentially ask whether the authority to set the policy regarding the use of county law enforcement vehicles for private work outside the county resides with the commissioners court or the sheriff and constable. Request Letter at 1. A commissioners court policy addressing the use of county-owned vehicles for private security work in another county must not usurp or interfere with the core duties of a sheriff or constable, while a sheriff’s or constable’s policy must not frustrate the commissioners court in performing its responsibilities. As the principal governing body of a county, a commissioners court is responsible for the exercise of “such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State.” TEX. CONST. art. V, § 18(b); see Comm’rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 79 (Tex. 1997). A commissioners court possesses only those powers expressly granted or necessarily implied by the Constitution or by statute. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). These powers touch on all areas of governance, however, and “include aspects of legislative, executive, administrative, and judicial functions,” with county budget-making constituting “[a] core component of that legislative function.” Henry v. Cox, 520 S.W.3d 28, 36 (Tex. 2017) (quoting Ector Cnty. v. Stringer, 843 S.W.2d 477, 478 (Tex. 1992)). A commissioners court’s broad discretion over county budgeting carries with it substantial power to “influence the actions of other county officials.” Tex. Att’y Gen. Op. No. JC- 0214 (2000) at 3. Pursuant to these powers, a commissioners court possesses authority over the allocation of vehicles and other equipment to county officers. See Tex. Att’y Gen. Op. No. KP- 0111 (2016) at 2. Indeed, its authority over vehicles that are used “for the performance of county business or law enforcement duties by a sheriff or constable or a deputy of a sheriff or constable” even extends to privately-owned motor vehicles. TEX. LOC. GOV’T CODE § 170.001(a). There are nonetheless limits to a commissioners court’s power. In particular, a commissioners court may not usurp or unreasonably interfere with an elected county officer’s core constitutional and statutory duties. Harris Cnty. v. Coats, 607 S.W.3d 359, 377 (Tex. App.— Houston [14th Dist.] 2020, no pet.); see also Tex. Att’y Gen. Op. No. JC-0214 (2000) at 5 (stating that a commissioners court “may take a different view of the importance of certain functions” performed by a county officer, but it may not “‘prevent[] the elected official from performing those duties required of him’” (quoting Vondy v. Comm’rs Ct. of Uvalde Cnty., 714 S.W.2d 417, 422 (Tex. App.—San Antonio 1986, writ ref’d n.r.e.))). An officer’s “core duties” include only those “that the Texas Constitution and statutes specifically delegate to the officer” and that fall within the officer’s exclusive “sphere of authority.” Griffin v. Birkman, 266 S.W.3d 189, 197 (Tex. App.—Austin 2008, pet. denied). Discretionary duties falling outside an officer’s “core duties” are not included in this protected “sphere of authority.” Id. A sheriff is an elected county officer whose sphere of authority is defined by the Constitution and by statute. TEX. CONST. art. V, § 23; see also Tex. Att’y Gen. Op. No. KP-0003 (2015) at 2 (discussing a sheriff’s constitutional and statutory powers). This office has recognized that “[t]he sheriff’s foremost responsibility is to enforce the law within the county as conservator of the peace and keeper of the county jail.” Tex. Att’y Gen. Op. No. KP-0111 (2016) at 2. This Mr. Dwayne Gott, CPA - Page 6 law enforcement authority implicitly includes “reasonable authority necessary to attain the end result.” Fort Bend Cnty. Wrecker Ass’n v. Wright, 39 S.W.3d 421, 425 (Tex. App.—Houston [1st Dist.] 2001, no pet.). A sheriff also is responsible for the official acts of a deputy sheriff, who generally serves at the pleasure of the sheriff. TEX. LOC. GOV’T CODE § 85.003(c), (d). A constable is an elected county officer with law enforcement authority. TEX. CONST. art. V, § 18(a); Harris Cnty. v. Walsweer, 930 S.W.2d 659, 666 (Tex. App.—Houston [1st Dist.] 1996, writ denied). A constable’s duties arise from a variety of sources, including Chapter 86 of the Local Government Code. Tex. Att’y Gen. Op. No. KP-0445 (2023) at 5; see generally TEX. LOC. GOV’T CODE §§ 86.001–.026. Chapter 86 requires a constable to serve civil and criminal process, warrants, and other legal papers. TEX. LOC. GOV’T CODE § 86.021. As a peace officer, a constable’s duties include preserving the peace within the constable’s own jurisdiction. TEX. CODE CRIM. PROC. art. 2A.051(1). A constable is responsible for the official acts of a deputy constable. TEX. LOC. GOV’T CODE § 86.011(c). We considered a question similar to the ones you pose in Opinion KP-0111. In that opinion, this office was asked whether a commissioners court could adopt a policy regulating the use of county vehicles by a sheriff and the sheriff’s employees. Tex. Att’y Gen. Op. No. KP-0111 (2016) at 1. In concluding that “a commissioners court generally may not interfere with the sheriff’s responsibility to deploy law enforcement officers and vehicles,” this office relied in part on caselaw stating that “decisions as to the deployment of law enforcement officers within the county are left to [a sheriff’s] discretion and judgment.” Id. at 3 (emphases added) (quoting Weber v. City of Sachse, 591 S.W.2d 563, 567 (Tex. Civ. App.—Dallas 1979, writ dism’d)); see also Tex. Att’y Gen. Op. No. GA-0480 (2006) at 2 (recognizing a sheriff’s “discretion to determine how the sheriff’s deputies are to use those vehicles [allocated to the sheriff] in providing law enforcement within the county” (emphasis added)). It was in this wider context that our office stated that “a commissioners court may not adopt a county vehicle policy that unreasonably interferes with or usurps the sheriff’s authority to use the vehicles, personnel, and other resources allocated to the sheriff to perform the duties of that office.” Tex. Att’y Gen. Op. No. KP-0111 (2016) at 3 (emphasis added). The circumstances surrounding your request are likely distinguishable from those in KP- 0111, as the use of county-owned vehicles you describe does not appear to directly fulfill any official duties, relate to a sheriff’s or constable’s responsibility to deploy vehicles, or involve actions to be taken within the county itself. Nevertheless, given the possibility of some indirect connection to official duties of which we are not aware, our analysis in KP-0111 remains instructive. In KP-0111, we expressly recognized that “[t]he commissioners court and the sheriff both possess authority concerning the county vehicles allocated to the sheriff, and to some degree, their respective spheres of authority intersect.” Id. at 2. Given this overlap, we noted that the sphere of authority analysis applied to both the commissioners court and sheriff’s office. See id. at 4 (“Just as the commissioners court may not usurp or unreasonably interfere with the sheriff’s core constitutional and statutory duties, however, the sheriff may not frustrate the commissioners court in the performance of its responsibilities.”). Accordingly, so long as doing so complies with the constitutional constraints already discussed, a commissioners court may institute a vehicle use policy if it does not unreasonably interfere with or usurp a sheriff’s or constable’s core duties, while a sheriff or constable may implement a vehicle use policy if it does not frustrate the Mr. Dwayne Gott, CPA - Page 7 commissioners court in the performance of its responsibilities. Ultimately, such determinations involve questions of fact that cannot be resolved through the opinion process. See Tex. Att’y Gen. Op. No. JC-0214 (2000) at 5 (stating that whether a commissioners court’s exercise of budgetary authority prevents a county official from performing the core duties of his office “is a question of fact, upon which we cannot opine”). Mr. Dwayne Gott, CPA - Page 8 S U M M A R Y To satisfy article III, subsection 52(a) of the Texas Constitution, a county’s vehicle use policy must ensure that a clear public benefit is realized by precluding the gratuitous use of county- owned vehicles, that a legitimate public purpose predominates over any benefits afforded to private parties, and that the county retains control over the vehicles’ use to ensure the public purpose’s accomplishment. We cannot conclude as a matter of law that a properly limited policy permitting county-owned vehicles to be used for private security jobs outside the county would invariably violate article III, subsection 52(a). The commissioners court may adopt a vehicle use policy that applies to a sheriff’s or constable’s office if the policy does not usurp or unreasonably interfere with the performance of the sheriff’s or constable’s core constitutional or statutory duties. Similarly, a sheriff or constable may adopt a vehicle use policy if it does not frustrate the commissioners court in performing its responsibilities. Whether any given policy meets these standards involves questions of fact that cannot be resolved in an Attorney General opinion. Very truly yours, :8 ~ ' KEN PAXTON Attorney General of Texas BRENT WEBSTER First Assistant Attorney General RALPH MOLINA Deputy First Assistant Attorney General D. FORREST BRUMBAUGH Deputy Attorney General for Legal Counsel MICHAEL C. COTTON Chair, Opinion Committee J. AARON BARNES Assistant Attorney General, Opinion Committee