Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
October 30, 1980
Honorable Dan M. Boulware Opinion No. !.Uv-262
Johnson County Attorney
Courthouse Re: Appointment of a city marshal
Clebume, Texas 75031
Dear Mr. Boulware:
In April, 1979, the city of Briaroaks, a general law city, elected a city
marshal. He resigned, and the mayor and city council appointed a
replacement, who also resigned. A third person was appointed; however, the
council removed that appointee following a dispute between him and several
councfl members. The mayor, who felt this removal was unwarranted, then
designated this person a special police officer under article 995, V.T.C.S.,
and placed him in charge of enforcirg the city’s laws. The city council has
challenged this procedure.
You ask the following questions:
1. Was the mayor authorized to reappoint this
individual under article 995 and, if so, how lang
may he serve as a special police officer?
2. Although this indivi&al has been reappointed
under article 995 as a special police officer, &es
a vacancy exist in the office of city marsbl and,
if so, how is this vacancy to be filled?
3. The individual is not a resident of the city, but he
does reside in the county. May he serve as either
city marshal or special police officer?
4. The individual does not have law enforcement
certification. May he serve as the city’s sole
peace officer either under article 995 or as city
marshal?
Article 995, V.T.C.S., provides, in pertinent part:
Whenever the mayor &ems it necessary, in order to
protect the laws of the city, or to avert danger, or to
protect life or property, in case of riot or any
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Honorable Dan M. Boulware - Page TWO (M-262)
outbreak cr calamity cc public disturbance, or when hs has
reason to fear any serious violation of law or order, or any
outbreak or any other danger to said city, or the inhabitants
thereof, he shall summon into service a special police force, all
or as many of the citizens as in his judgment may be necessary.
Article 977, V.T.C.S., provides that “[ol ther officers of the [city] shall be a. . .
marshaL . . who may either be appointed or elected as provided by ordinance.” Article
999, V.T.C.S., provides that the city marshal is the ex officio chief of police, and that
he is respwsible, inter aJia, for preventing disturbances, arresting violators of the
public peace, and executing all Writs and process issued by designated courts. In light
of these provisions, a city marshal is clearly en officer of the city. See Uhr v.
Lsncaster, 187 S.W. 379 (Tex. Civ. App. -San Antonio 1916, no writ); Miller? Cit
ts 282 S.W.2d 264 (Tex. Civ. App. - San Antonio 1955, ------Y
wrrt rePd n.r.e.
srtlc es 977 and 999, V.T.C.S., to be wnstrued together).
Pw-
Article 1003, V.T.C.S., prohibits a city wuncii from appointing anyone “other
than an elector resident of the city” to any office except that of city health officer.
E Attorney General Opinion G-181 (1939). Article 1006! V.T.C.S., authorizes the
council to remove officers for incompetency, corruption, misconduct, or malfeasance
in office, after due notice and an opportunity to be heard; the council may also remove
an officer “by resolution declaratory of its want of confidence in said officer;
provided, that two-thirds of the aldermen. . . vote in favor of said resolution.” When a
vacancy in sn office occurs, by either resignation, article 1005, V.T.C.S., or removal
from office, article 1006, V.T.C.S., “the mayor or act& mayor shall fill such vacancy
by appointment, to be confirmed by the city council,” article 989, V.T.C.S.
We Will answer your last question first. Article 4413(29aa), V.T.C.S., creates the
Commission on Law Enforcement Officer Standards and Education and empowers it,
among other things, to certify those persons designated as “peace office& by article
2.12, Code of Criminal Procedure. Unless indiviwals accepting appointment as peace
officers within the meanitg of the act are so certified, they commit a crime - as do
those appointing them - with certain exceptions. See Attorney General Opinion H-
1286 (1978); see also Attorney General Opinions MWm (1979); M-767 (1971). Persons
drafted as part a special police force pursuant to article 995 are not “peace
officers” within the meaning of the act and need not be certified pursuant to article
4413(29aa). Attorney General Opinion H-1286, a. On the other hsnd, a city
marshal is a peace officer designated by article 2.12 of the Code of Criminal
Procedure. See also article 999b, V.T.C.S. (“law enforcement officer” includes the city
marshal). In order to serve lawfully as city marshal, therefore, an individual must be
certified as qualified to be a peace officer. Because the indivihal in question is not so
certified, he is not legally qualified to serve as city marshal.
Bssed lpon the information you have supplied, we have some doubt as to whether
this indivi&al was properly removed from office under article 1006, V.T.C.S. We need
not address this issue, however, since we heve determined that hs was ineligible to
serve as city marshal in the first place. Thus, the answer to your second question is
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Honorable Den M. Boulware - Page Three 0+262)
that the office of city marshal has been technically vacant since the second
officeholder resigned, whether or not it was afterward filled by a de facto officer. See
Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944). Cf. Jackson v. Maypa
Independent 39,2 S.W. 2d 892 (Tez. Civ. AK- Waco 1965, no writ).
Pursuant to article 989, V.T.C.S., that vacancy may now be filled by the mayor,
subject to confirmation by the city council.
Your third question is whether this indiviaa!, who does not reside in the city of
Briaroaks, may serve as city marshal or as a special police officer under article 995,
V.T.C.S. We have stated that he ls ineligible to serve as city marshal because he is not
certified as qualified to be a peace officer. In our view, he is also ineligible because
he &es not reside in the city. V.T.C.S. art. 1003. See Attorney General Opinion G-181
(l939); 56 Am. Jur. 2d Municipal Corporations S247,=305.
Article 995, V.T.C.S., provides that the mayor of a city may “summon into
service. . . all or as many of [its] citizens as in his judgment may be necessary” to
accomolish the obiectives set forth m that statute. (Rmohasis added). Notwith-
standirg other req&ements, an individal must at least be‘a resident of a political
community in order to be a “citizen” of that community. Seee~e.g., Eierr&~tt v. City of
Seattle. 500 P.2d 101 (Wash. 19721, citing U.S. v. Crug hank, 92 U.S. 542 (1875);
Imperial Car Rental Corp. v. Lustier, -196 A. 2d 728 (R.I. 1964); Bergstrom v.
Serpstrom. 478 F. SUDD. 434 (D.N.D. 19791. Since the indivlaal is not a resident of the
city, he is not in ou~bpinion~ a “citix&~within the meaning of article 995, V.T.C.S.;
thus, he ls not subject to the provisions of that article
Your final question is whether, under the circumstances you describe, the mayor
was authorized to press this indivitial into involuntary service as a special police
officer in charge of enforcing city laws after he had been removed as city marshal. As
we have observed, article 995 authorizes the mayor to conscript a special police force
consisting of ‘all or as many citizens” as he deems necessary for the purposes specified
therein.
Article 995 may be relied upon in instances of public emergency or extraordinary
need, but we think it is clear that it may not be utilized to circumvent exp,ress
statutory requirements pertaining to the appointment of city officers. We thus
conclude that, even were this individual a “citizen” of Briaroaks within the meaning of
article 995, the mayor would have no authority to draft him as a special police officer
with duties and responsibilities virtually identical to those of the position from which
he had been dismissed. The proper method for filling the vacancy in the office of city
marshal is set forth in article 989, V.T.C.S.
SUMMARY
1. The mayor of Briaroaks was not authorized to &aft a
non-resident indivihal as a special police officer in charge of
enforckg the city’s laws after that indivi&al hsd been removed
as a city marshal, an office for which he bed not been certified
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Honorable Dan M. Boulware - Page Four (m-262)
as qualified by the Commission cn.Law Enfcrcement Officer
Standards and Education, and which is now vacant.
2. Following the resignation of the second appointee, a
vacancy exlsted in the office of city marshaL That vacancy has
never been properly filled. Article 989, V.T.C.S., sets forth the
proper method for filling the vacancy.
3. An indivl&al who is not a resident of the city may not
serve as city marshal or as a special police officer.
4. An individual must heve peace officer certification to
serve as city marshal but need not be so certified to serve as a
special police officer under article 995, V.T.C.S.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMHTEE
Susan Garrison, Acting Chaiman
Jon Bible
Jerry Carruth
Rick Gilpin
Bruce Yamgblwd
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