Untitled Texas Attorney General Opinion ( 1972 )

November 20, 1972 Honorable W. T. McDonald, Jr. Opinion No. M-1267 County Attorney Brazes County Courthouse RFi: The effect of Articles Bryan, Texas 77801 6869.1 and 4413(29aa) 6 2A, Vernon's Civil Statutes upon Article 484 of the Texas Penal Code, and the duration of reserve deputy con- Dear Mr. McDonald: stable appointments. You have requested the opinion of this office in regard to the two questions as follows: "The question presented,is whether the enactment of Article 6869.1 and Article 4413 (29ai), Sec. 2A(a); by the 62nd Legislature repealed Article 484, Vernon's Texas Penal Code, or did the legislature intend for the old statute (Articles484) to remain in opera- tion, and therefore require a deputy constable to comply withboth Article 6869.1 and Article 484, in order to carry a weapon and act as a peace officer. The second question presented is for what period of time does the authority by the Commis- sioner's Court extend, ie: (1) annually, (2) during the term of office of the constable, or (3) until the Commissioner'sCourt rescinds their authority (assuming the Court does have the authority to rescind)?' Article 6869.1 reads as follows: "Section 1. (a) The Commissioners Court of any county in the State may.authorize the -6215- Honorable w. T. &Donald, Jr-, Page 2 (~-1267) sheriff of the county to appoint reserve deputy sheriffs, or any constable of the county to appoint reserve deputy constables, who shall be subject to serve as peace offi- cers during the actual discharge of their official duties upon call of the sheriff, in the case of deputy sheriffs, or of the constable, in the case of deputy constables. (b) The Commissioners Court may limit the number of reserve deputy sheriffs or reserve deputy constables who,may be appointed. (c) Such reserve deputy sheriffs shall serve at the discretion of the sheriff and may be called into service at any time the sheriff considers it necessary to have additional offi- cers to preserve the peace and enforce the law; and such reserve deputy constables shall serve at the discretion of the constable and may be called into service at any time the constable considers it necessary to have additional offi- cers to preserve the peace and enforce the law. (d) Such reserve deputy sheriffs and deputy constables shall serve without Pay but the Commissioners Court may provide compensation for the purchase of uniforms and/or equipment used by.such individuals. (e) Such reserve deputy sheriffs and deputy constables, prior to their entry upon duty and simultaneously with their appointments, shall file an oath and bond in the amount of Two Thou- sand Dollars ($2,000), payable to the sheriff, in the case of reserve deputy sheriffs, and payable to the constable, in the case of reserve deputy constables, and filed with the county clerk of the county in which.said appointment is made. (f) Such reserve deputy sheriffs, while on active duty at the call of the sheriff and while actively engaged in their assigned duties; and reserve deputy constables, while on active duty at the call of the constable.and while actively -6216- Honorable W/T. &lcDonald,Jr.;page ‘3 (M-1267) engaged intheir ~assigned.duties,shall,be vested with the same rights, privileges, obligations and duties of any other peace officer of the State.of Texas. Sec. 2. The county and/or the sheriff or constable shall notincur any liability by reason of the appointment of any such reserve deputy sheriff or deputy constable who-incurs any personal injury while serving in such capacity.* Section 2A of Article 4413 (29aa) reads as follows: (a) The Commission on Law,Enforcement Officer Standards and Education shall estab- lish'minimum training standards for all reserve law'enforcement officers wh&ch.must be fulfilled before a person,appointed as a reserve law en- forcement officer may carry a weapon or other- wise act as a peace officer. (b) The Commission shall establish minimum physical, mental, educational, and moral stan- dards for all reserve law enforcement officers." Article 483.of the Texas Penal Codesprovides the penalty for one unlawfully carrying arms. Article 484 of the Penal Code exempts certain people.from Article 483.. The pertinent portions of particle 484 read as follows: "The preceding article shall not apply to a person in actual service as a militiaman, nor to any'peace officer in the.actual dis- charge of his official duty,~. . . nor to any deputy constable, or special policeman who receives a compensation of.forty dollars or more per month for his services as such,offi- cer, .and‘who is appointed in conformity with the statutes authorizing such appointment;. . ." The provision that Article 483 shall not apply II . . . to any deputy constable. : . who re- ceives,a compensation of $40.00 or more per ~month for his services as such officer, and -6217- Honorable W. T. McDonald, Jr., page 4 (M-1267) who is appointed in conformity with the statute authorizing such appointment. . .(( refers only to deputy constables appointed pursuant to Articles 6879 and 6879a, Vernon's Civil Statutes, but it does not apply to a reserve deputy constable appointed pursuant to Article 6869.1, Vernon's Civil Statutes. Section l(d) of Article 6869.1 provides that such reserve deputy constables "shall serve without pay." No such restriction applies to a deputy constable appointed pur- suant to Articles 6879 and 6879a. When a reserve deputy constable has fulfilled the requirementa set forth in Section 2A (a) of Article 4413 (29aa), Vernon's Civil Statutes, such *reserve law enforcement officer may carry a weapon or otherwise act as a peace officer" as authorized in that Article. Further that part of Section l(f) of Article 6869.1 relating to reserve deputy constables provides that U' . . . reserve deputy constables, while on active duty at the call of the constable and whi3.e actively engaged in their assigned duties, shall be vested with the same rights, privileges, obligations and duties of any. other peace officer of the State of Texas." Therefore, a reserve deputy.constable while on active duty comes within Article 484 of the Texas Penal Code which provides that Article 483 shall not apply "to any peace officer in the actual dis- charge of his official duty. . ." In response to your second question concerning the dura- tion of the appointment, the Commissioner's Court may authorize the appointment which will run for the duration of the constable's tenure of office or such time the Commissioner's Court may direct., Pursuant to Section l(b) of Article 6869.1, the Commissioner's Court may limit the number of reserve deputy constables autho- rized to be appointed. Once the Commissioner's Court has autho- rized such appointments, the constable makes the actual appointment of the reserve deputy constables. 'The Commissioner's Court does. not have the power to remove a person,so appointed. See Attorney -6218- Honorable w. T: McDonaldi Jr&t Page 5 (M-1267) General of Texas Opinion O-7081 (1946). As to the individual appointee, Article 6869.1 confers upon-the constable the power to make the appointment, but it fixes no definite term of office. Section l(c) of that Article provides II . . .such reserve deputy constables shall serve at the discretion of the constable. . .'I and as such, both the appointment and tenure are discret5onary with the constable, the tenure being subject to the space of time authorized by the Commissioner's Court. Since this power and authority is given by statute, it cannot be contracted away so as to bind the constable to retain his reserve deputy in such a position for any fixed period. See Murray v. Harris, 112 S.W.Zd 1091 (Tex.Civ.App. 1938, error dism.). Therefore, .a reserve deputy constable is appointed for no certain time. He serves at the pleasure of the constable and within the period of time authorized by the Commissioner's Court. SUMMARY Article 484 of the Texas Penal Code was not repealed by the enactment of Articles 6869.1 and 4413 (29aa) S?A, Vernon's Civil Statutes, which provide,for the appointment and qualifications of reserve deputy constables. The appointment of deputy constables is governed by the provisions of Articles 6879, 6879a and 4413 (29aa) 92. Reserve deputy constables are appointed for no certain time but they serve without pay at the pleasure of the constable and within the period of time authorized by the Commissioner's Court. , .’ &i2%2=. C. MARTIN General of Texas Prepared by Thomas M. Pollan Assistant Attorney General APPROVED: OPINION COMMITTEE -6219- Honorable W. T. McDonald, Jr., page 6 (M-1267) Kerns Taylor, Chairman W: E. Allen, Co-Chairman Jay Floyd Ben Harrison Bob Lattimore David Longoria SAMUEL D. MCDANIEL Staff Legal Assistant ALFREDWALKER Executive Assistant NOLA WHITE First Assistant -6220-