Untitled Texas Attorney General Opinion ( 1987 )

THE ATTORSEY GENERAL
OF TEXAS
August 10, 1987
Bonorable Rolando J. Menchaca Opinion No. JM-765
Maverick County Attorney
P. 0. Box 3041 Re: Whether a sheriff may prohibit
Eagle Pass, Texas 78853 county peace officers from carrying
weapons into commercial establish-
ments that serve alcoholic beverages
Dear Mr. Menchaca:
You inform us that the county sheriff has received complaints
that armed law enforcement officers from various political
subdivisions in the county have been observed patronizing bars or
night clubs, drinking alcoholic beverages, and socializing. After an
investigation, it was determined that, on several occasions, the peace
officers were not acting as security guards or investigating criminal
offenses; they were present only as patrons. Section 46.02 of the
Penal Code, which makes unlawful the carrying of weapons, specifically
provides in subsection (c): "An offense under this section is~ a
felony of the third degree if it occurs on any premises licensed or
issued a permit by the state for the sale or service of alcoholic
beverages." You correctly point out that section 46.03(a)(6) of the
Penal Code specifically provides that section 46.02 of the Penal Code
is inapplicable to peace officers. See Attorney General Opinion
m-613 (1986). Accordingly, you ask: -
Can our local sheriff issue a directive to any and
all peace officers in our county to the effect
that, while acting as patrons at a drinking
establishment, etc., peace officers should leave
their weapons elsewhere? If this cannot be done,
is there anything that our sheriff can do to
address this particular problem?
We understand you to ask whether the county sheriff has the authority
to direct the activities of non-county peace officers, as well as
county peace officers. Logically, your question could arise in
connection both with regard to "on-duty" conduct or activities, as
well as "off-duty" conduct. We will address each situation.
Of course, a county sheriff may direct the activities of peace
officers in his employ during their "on-duty" time of employment. -See
p. 3587
Honorable Roland0 J. Menchaca - Page 2 (JM-765)
Weber v. City of Sachse, 591 S.W.2d 563 (Tex. Civ. App. - Dallas 1979,
writ dism'd). We conclude, however, that the county sheriff is
without authority to make such a policy applicable to peace officers
who are employees of other political subdivisions in the county.
The authority of a county sheriff to direct the "off-duty" activities
of peace officers in his employ is more limited, however, to
restrictions that are reasonably connected to the proper execution of
his law enforcement responsibilities. You do not ask about the
reasonableness of any specific policy. Whether any specific policy is
reasonable is a question of fact that we cannot resolve in the opinion
process. We cannot determine the reasonableness of any specific
policy that prohibits county peace officers, while armed, from
frequenting during their "off-duty" hours establishments licensed to
sell or serve alcoholic beverages.
County sheriffs generally exercise supervisory control over
employees in the county sheriff's office. See, e.g., Attorney General
Opinion H-1190, (1978). County sheriffs are authorized by article
6869, V.T.C.S.,' to appoint deputies "to continue in office during the
pleasure of the sheriff, who shall have power and authority to perform
all the acts and duties of their principles." See generally Heye v.
Moody, 4 S.W. 242 (Tex. 1887); Murray v. Barris, 112 S.W.Zd 1091 (Tex.
Civ. App. - Amarillo 1938, writ dism'd). Article 6870, V.T.C.S.,
provides that sheriffs shall be responsible for the official acts of
their deputies; they are not responsible for unofficial and
unauthorized acts of deputies. Workman v. Freeman, 279 S.W.Zd 486
(Tex. Civ. App. Amarillo 1955). aff'd 289 S.W.2d 910 (Tex. 1956);
Taylor v. Stanford, 229 S.W.2d 427 (Tex. Civ. App. - Galveston 1950,
no writ). A county sheriff has the authority to deploy his personnel
in any manner that he deems appropriate. Weber v. City of Sachse, 591
S.W.2d 563 (Tex. Civ. App. - Dallas 1979, writ dism'd). While the
county sheriff may exercise supervisory control over employees of his
office, he exercises no supervisory control over peace officers
employed by other political subdivisions in the county.
While the county sheriff may not exercise supervisory control
over peace officers employed by other political subdivisions,
regardless of whether control is sought to be exercised over "on-duty"
time or "off-duty" time, we conclude that he may impose reasonable
limitations on the "off-duty" behavior of his own deputies.
Generally, a public employer may not discharge a public employee
at-will unless the cause for the discharge is reasonably related to
1. Art. 6869, V.T.C.S., has been repealed and replaced,
effective September 1, 1987, see now chapter 86, of the Government
Code. -See Acts 1987, 70th Leg., ch. 149, §§I, 49.
p. 3588
Eonorable Roland0 J. Menchaca - Page 3 (JM-765)
employment. See, e.g., Annots., 35 A.L.R. 4th 691 (1985); 33 A.L.R.
4th 120 (1985). Given the fact that law enforcement officers can be
thought to be "on-duty" at all times insofar as a peace officer is
required to respond to any breach of the peace that occurs within his
view even if he is no longer working his assigned "shift," we conclude
that a county sheriff may exercise reasonable "off-duty" control of
his deputies.
In Attorney General Opinion JM-613 (1986). we were asked whether
a Texas peace officer commits a crime and is subject to prosecution
for a misdemeanor or felony if he carries a handgun either (1) while
he is "off-duty" (i.e., not then actually carrying out duties assigned
to him by his department), or (2) while he is outside the limits of
the territory over which his department has law enforcement
jurisdiction. We concluded that a peace officer in Texas, wherever in
the state he might be and whether engaged in the actual discharge of
his duties, is ~immune from prosecution under section 46.02 of the
Penal Code for unlawfully carrying a handgun. One of the primary
reasons that the opinion so held is that Texas courts have
consistently concluded that a peace officer, at least when he is
within his normal jurisdiction, remains a peace officer, twenty-four
hours a day and possesses the full powers of a peace officer in the
presence of criminal activity.. See Wood v. State, 486 S.W.2d 771
(Tex. Grim. App. 1972); Sims v. State, 319 S.W.2d 717 (Tex. Grim.
App. 1958). The Code of Criminal Procedure, article 2.13, makes it
the duty of every peace officer to preserve the peace within his
jurisdiction at all times and not merely during his "on-duty" hours or
"shift." See Attorney General Opinion JM-140 (1984). Similarly, the
cases of Preston v. State, 700 S.W.2d 227 (Tex. Grim. App. 1985) and
Christopher v. State, 639 S.W.2d 932 (Tex. Grim. App. 1982), leave no
doubt that every Texas peace officer remains a peace officer even
while outside the territorial limits of his normal jurisdiction,
although his power to act may be more limited outside these boundaries
than within them.
Because a peace officer employed by the county may be called upon
to exercise his duty as a peace officer even when he is not working
his regular shift, we conclude that a county sheriff may exercise
reasonable control over the "off-duty" conduct or behavior of his law
enforcement employees, so long as such direction or control is
reasonably related to the proper requirements of "on-duty" conduct.
You do not ask about the reasonableness of any specific policy. Such
a determination would require a finding of fact, which we decline to
make in the opinion process.
p. 3589
Eonorable Roland0 J. Menchaca - Page 4 (JM-765)
SUMMARY
A sheriff is ordinarily without authority to
direct the activities, whether "on-duty" or
"off-duty," of peace officers who are employees of
other political subdivisions in the county. The
authority of a sheriff to direct the "off-duty"
activities of peace officers in his employ is
limited to restrictions that are reasonably
related to proper "on-duty" employment.
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 3590