Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
November 24, 1981
MARK WHITE
Attorney General
Honorable Jim Hapel Opinion No. W-394
Supreme Court Building
P. 0. Box 1254a
Criminal District Attorney
Austin, TX. 78711 Brasoria County Courthouse Re: Whether articles 998, 999
512/475-2501 Angleton, Texas 77515 and 999a. V.T.C.S.. apply to
Telex 9101874-1367 towns incorporated under pro-
TekoDier 5121475-9286 visions of chapter 11 of Title
28, V.T.C.S.; or. in the
1507 Main St.. Suite 1400 alternative, what provisions
Dallas. TX. 75201 for the appointment of peace
214!?42B944 officers apply when a town has
been incorporated under
chapter 11 of Title 28
4924 Alberta Ave., Suite 160
El Paso. TX. 79905
915l533.3494 Dear Mr. Mapel:
You have inquired whether the provisions of articles 998. 999 and
1220 Dallas Ave., Suite 202
Houslon, TX. 77002
999a, V.T.C.S., would apply to a town organized under the provisions
713/6-
of chapter 11 of Title 28, V.T.C.S. Your concern arises from the
possibility that a town under your jurisdiction might appoint an
unauthorized person to act as a peace officer leaving that person open
SO5 Broadway, Suite 312 to possible criminal prosecution under section 37.11 of the Texas
Lubbock. TX. 79401
SOB!747-5239
Penal Code.
The town in question was incorporated under provisions which are
4309 N. Tenth, Suile B codified as chapter Il. Title 28. Its population has declined until
McAllm. TX. 78501
it has reached the present level of thirty (30) persons. You state
51216824547
there is still an acute need for local law enforcement beyond the
level that can be provided by the sheriff of Brazoria County. At the
200 Main Plaza. Suile 400 present time, the office of city marshal is vacant because none of the
San Antonio, TX. 78205 residents are interested in seeking election to such office. At all
51212254191
times since incorporation the town has operated under the provisions
of chapter 11 of Title 28.
It is clear that articles 998. 999 and 999a do not apply to any
town which has not met the prerequisites set out in article 961,
V.T.C.S. Article 961 provides in mandatory language in its last
sentence: "The provisions of this title shall not apply to any city,
town or village until such provisions have been accepted by the
council in accordance with this article."
p. 1339
Honorable Doyle W. Neighbours - Page 2 etw-394)
Under your set of facts, the town council is authorized in
section 7, article 1146 to appoint "such officers, other than those
mentioned in this chapter. as shall be deemed necessary to carry out
the provisions of the same." In the case of Early v. State, 97 S.W.
82 (Tex. Crim. App. 1906). the court held that the predecessor to
article 1146 empowered the board of aldermen of such a town or village
to appoint policemen. It should be noted there is no residence
requirement in chapter 11, Title 28 for the officers appointed under
article 1146.
As long as the person appointed under article 1146 does not have
a "dual office holding" problem, see Attorney General Opinion V-70
(1947), and is properly certifiedby the Law Enforcement Standards
Commission, he would be lawfully authorized to act as a peace officer.
SUMMARY
Articles 998. 999, and 999a. V.T.C.S., do not
apply to towns incorporated under chapter 11,
Title 28, unless said town follows the
prerequisites of article 961. V.T.C.S. Chapter 11
towns may utilize the provisions of article 1146
to lawfully appoint the needed peace officers.
w-t-&%&
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by W. Reed Lockhoof
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
W. Reed Lockhoof
Jim Moellinger
p. 1340