Can a Sherriff from one county enter into an agreement with another county to house the other county's prisoners in his Jail? My county is housing overflow prisoners in a neighboring county. The Sheriff of the other county has sent a draft of an agreement regarding same that is between himself as Sheriff and my county. He has informed me that he can enter into this agreement without involving his commissioners. It is my understanding that generally only the commissioners can obligate the county. Anybody see a problem with my county, acting through its commissioners, entering into an agreement with the Sheriff of another county to house our prisoners in his jail?
Unless otherwise specified by a statute, only the commissioners court has authority to enter into a contract that binds the county. Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). The only pertinent statutes implicated by your scenario are section 511.012(b) of the Government Code and section 362.002 of the Local Government Code. Section 511.012(b) would allow your sheriff to contract with another sheriff, but only if your county's jail or the other sheriff's jail was found to be in violation by the Jail Standards Commission and the violations were not timely rectified (resulting in an order that prisoners no longer could be housed in the jail). Otherwise, authority would have to flow from section 362.002 of the Local Government Code, which authorizes cooperative law enforcement agreements between local governmental entities. Section 362.002(a), however, bestows the authority to make such agreements upon the governing body of the entity (in counties, of course, that means the commissioners court). If only folks were as willing to sign the stuff we drew up, huh?
And, doesn't it worry you that you are being approached by a Sheriff and the Commissioners Court from the other county isn't on board? Bells and Whistles should be going off. Loud ones!! I am from the land where a previous sheriff liked to enter contracts without Commissioners Court knowledge/approval. Lots and lots of lawyer time got tied up in those issues for years. Don't do it!
I've seen the same problem repeatedly - my former sheriff held federal prisoners without a "valid" contract..
The challenge is to train officials to run all contractual relationships past the commissioners court, and then the court to run all contracts past you. This sounds like a good opportunity to start the training - between you and your co-hort in the other county you should be able to draft something fairly quickly.
Lisa, that is exactly what the other sheriff is currently doing. Thus, he reasoned he could do the same with us. As always, thanks for everyone's input. Happy Holidays!
At the risk of getting flack from some of the posters you might want to look at the above cited ag opinion which discusses the farming out of inmates by a sheriff.
Specifically, the AG from on high opined that "As we understand it, the sheriff, in order to avoid jail overcrowding, is "farming out" inmates to other county jails. The commissioners court, concerned at the expense involved, wishes to know whether it can impose a limit on such "farming out," or whether it can take certain other acts which might lower the cost of keeping the jail. We are asked, therefore, to consider whether the commissioners court may limit the number of prisoners the sheriff may farm out; whether the sheriff may obligate funds for such farming out; whether the commissioners court may direct that the sheriff not farm out inmates if keeping such inmates in the county jail will violate the standards promulgated by the Texas Commission on Jail Standards (the "commission"); whether the sheriff, the county, or the commissioners court is liable for the sheriff's failure to execute civil or criminal warrants; whether the commissioners court may direct the sheriff not to execute arrest warrants, so as to prevent overcrowding; and whether the commissioners court may be civilly liable if it fails to budget adequate funds for the staffing or operation of the jail.
With one partial exception with respect to the sheriff's ability to obligate the county, we agree with the conclusions already reached by your county attorney in this regard. In our view, the commissioners court has no authority to limit the number of prisoners farmed out. Any general authority to contract that is necessary does, however, belong to the court rather than the sheriff; but the court has no discretion to refuse to enter into any necessary contracts if failure to do so will violate its responsibility to provide safe and suitable jails, or will violate the Eighth or Fourteenth Amendment rights of those incarcerated in the jail. [FN1] The commissioners court may not direct the sheriff to violate the rules of the commission, nor may it direct him not to fulfill his duty to serve warrants, failure to execute which might subject the sheriff to criminal liability. Finally, the county is bound by statute and by the Texas Constitution to provide adequate jails, may violate the Eighth and Fourteenth Amendments if it fails to do so, and cannot be heard to say that budgetary constraints excuse any such constitutional or statutory violation."
Well done, Hugh. One would have to accord special attention to this AG opinion concerning correctional housing, since it was issued by an AG who now has detailed insight into the day-to-day operation of a penological facility.
That a commissioners court cannot override a sheriff's oversight of his area of authority, including keeping the jail, is not subject to serious question. Nor is the inability of the court to direct a sheriff to violate jail standards or the constitution up for debate. But neither of these concepts carry any express statutory authorization for the sheriff to bind anyone in contract (except, perhaps, for himself in his individual capacity), particularly in light of the fact that neither the sheriff nor his office (in an official capacity) is a legal entity distinct from the county itself.
I have now awoke several members of my office as I fell out of my chair after reading the "insider's view" comments in the previous post. I thought for just a moment Scott was going to provide us with a scholarly analysis of the legal distinctions between a LO and a DM opinion, but as Steve Martin would have said, "NOOOOO."
However, I digress. Lets view this contract from the Commissioners Court perspective, that is the County who will be holding the other county's inmates. If I were representing that County I would darn sure want the sending Commissioners Court on board or how do we get paid. The Sheriff has no money and he tells us to sue. Great just what we needed; to bring a lawsuit in the home team's county. What about immunity on a deal like this? Well as that fellow on the Budweiser TV ad says, "Don't go there."
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