A donation of two boats from the Texas Parks and Wildlife Department approximately two-and-a-half years ago spurred a heated debate between County Auditor Ramona Seward and Sheriff Kenny Lemons during a regular meeting of the Clay County Commissioners Monday.
The auditor suggested that donation of the boats must be approved by commissioners at the time the boats were accepted. She also said there was no official record that the boats were in the possession of the sheriff’s office until they appeared on an inventory list this year.
Lemons replied that it is his decision to accept donations to his department, and not that of the commissioners.
Following the debate, commissioners voted to accept the donation.
Attorney General Greg Abbott addressed a similar situation in Smith County in 2004.
An attorney general’s opinion issued by Abbott’s office states that a commissioners’ court is authorized to accept donations of property to be used by a sheriff’s department. The opinion goes on to state that no statute authorizes a sheriff to accept donated property.
With no statute authorizing the sheriff to accept donated property, states the AG opinion, the commissioners’ court is the proper body to accept donations on the county’s behalf.
Questions about the boats began to come up after the auditor requested an inventory of equipment and supplies from the sheriff’s office as required by the state. In a letter to commissioners, Seward stated that she asked Lemons how and when the county came to possess the boats.
Through an exchange of letters with the sheriff during the inventory process, Lemons informed Seward that the boats, motors and trailers were donated on April 8, 2010. Both boats were not titled or registered as property of the county until late July or early August of this year, even though the boats have been trailered on public roads and deployed at Lake Arrowhead on multiple occasions.
Seward said that it appears Lemons exceeded his authority by accepting and utilizing the boats, motors and trailers without the approval of the commissioners. Also, because the boats were not registered to the county when deployed, they did not fall under the county insurance coverage, exposing the county to liability should an accident occur.
The boats are covered by auto insurance only when towed behind the insured vehicle.
Seward said local government code authorizes the commissioners’ court to accept a gift, grant or donation to the county.
Lemons responded in a letter addressed to commissioners and the auditor, which included an interpretation of the local government code section first mentioned by Seward. Attorney Tom Bullington of the Sheriff’s Association of Texas provided the interpretation.
“In applying statutory law, the two words ‘may’ and ‘shall’ have considerably different meanings,” said Lemons while reading his letter aloud. “In this instance, it does not deter the sheriff from accepting surplus equipment from other agencies.”
Lemons argued that the use of “shall” means that donations can go through commissioners’ court, but are not required to go through commissioners’ court.
In his letter presented Monday, Lemons said Capt. Trent Anderson of the TPWD offered the boats in early 2009, not long after the sheriff took office. Two deputies were trained to operate the boats and stored them at their homes.
Lemons said the boats have been launched on three occasions for rescue operations at Lake Arrowhead. The first use of the boats by the CCSO was a search and rescue operation in July 2010, during which then deputy Dee Litteken, a retired TPWD Game Warden, recovered the remains of a 28-year-old Wichita Falls man.
Since accepting the boats, deputies have spent approximately $500 for equipment, which was not budgeted for, and $70 for fuel.
Lemons said he did not immediately receive titles for the boats from the TPWD, and was told by the agency that there was no need to register the boats since they were to be used only in official capacity at Lake Arrowhead.
According to a representative of the TPWD boat registration division in Austin, the donated boats should have been titled and registered to Clay County within two weeks of the date the boats were accepted by the sheriff’s department.