Untitled Texas Attorney General Opinion ( 1968 )


Menu:
  •                  .         September 30, 1968
    IionorableW.C. Lindsey            Opinion No. M-282
    Criminal District Attorney
    Jefferson County Courthouse       Re:   Whether haws rule cities
    Beaumont, Texas 77701                   not covered by Civil Service
    Act (Art. 1263m, V.C.S.)
    both below and above 10,OOQ
    population may organiae an
    auxiliary police force with
    the right to carry pistols
    end other weapon8 while on
    duty but not to receive caa-
    Dear Mr. Lindsey:      _                pensation.
    Your recent letter requesting an opinion of this office
    etates,     in part, as follows:
    *The City of Port Neches, Texas, has a popu&.ation
    of 6696 eccording to the 1960 Federal Census. The
    City of Port Neches is a home rule city agd in its
    Charter has reserved to its City Council the same
    general powets of appointment, term of office,
    qualifidationa and establishment of salaries for
    police officers as set forth in Article 998, V.A.
    C.S. Ry Ordinance the City Council has eeteblished
    an Auxiliary Polio* Force which his affiliated with
    and subject to the Port Recbes Police Department.
    This Ordinance does not provide fox the payment
    of compensation to the members of the Auxiliary
    Force, and in fact, none is made.
    "There are other home ride &ties lying within my
    district who have dmi+ar types of Charter provis-
    ions for estglbliehmentof Police Forces and who
    by ordinance;Yhaveestablished reserve police of-
    ficers without compensation. They do have a
    population in excess of 10,000 according to the
    1960 Federal Census."
    - 1367 -
    Hon. W.C. Lindsey, Page 2,   (M-   282)
    In relation thereto you present the following questions:
    “1. May the City of Port Neches, not beinq
    covered by the Civil Service Act (Art.
    1269m, V.A.C.S.) and having a population
    of less than 10,000 organize an auxiliary
    police force when the members thereof do
    not receive compensation, and may these
    members carry weapons in the performance
    ,of their duties?
    "2. May the cities not having elec:ted to be
    covered by the Civil Service Act (Art.
    1269m, V.A.C.S.) but havin g a population
    of more than 10,000 according to the last
    Federal Census, organize an auxiliary police
    force when the-mer&ers thereof do not ;e-
    ceive compensation, and may these members
    carry weapons in the performance of their
    duties?"
    In Attorney General's Opinion Number WW-997 (19611,
    this office has previously expressed the opinion that mem-
    bers of the auxiliary police department of the City of Taft
    were authorized by law to carry pistols in the performance
    of their duties as police officers and to act as city police
    even though they did not receive as much as $40.00 per month
    compensation. That opinion was based upon the fact that such
    ,officerswere apparently appointed under the authority of
    Article 998, Vernon's Civil Statutes: and that being so ap-
    pointed they were a constituent part of the regular police
    force and were not subject to the "special policeman" pro-
    visions of Article 484, Vernon's Penal Code.
    Article 998 provides as follows:
    "The city or town council in any city or town in
    this State, incorporated under the provisions of
    this title may,!by ordinance, provide for the
    appointment, term of office and qualification of
    such police officers 8s may be deemed necessary,
    Such police officers so appointed shall receive
    a salary or fees of office, or both, as shall
    be fixed by the city council. Such council may,
    by ordinance, provide that such police officers
    shall hold their office at the pleasure of the
    city council, and for such term as the city
    Hon. W.C. Lindsey, Page 3, (M-282)
    council directs. Such police officers shall
    give bond for the faithful performance of their
    duties, as the city council may require. Such
    officers shall have like powers, rights and
    authority as.are by said title vested in city
    marshals. . .*
    ,
    Article 483, Vernon's Penal Code prohibits the carry-
    ing of pistols in this state, while Article 404 provides,
    in part, that:
    "The preceding article shall not apply to 0 D *‘any peace
    officer in the actual discharge of his official duty,
    ... nor to any ... specral policeman who receives
    a compensation of forty dollars or more per month
    for his services as such officer, and who is ap-
    pointed in conformity with the statutes authorizing
    such appointment; . . ." (Emphasis added) D
    In line with the Attorney General's Opinion No. WW-997
    
    (1961), supra
    , which the Legislature has not seen fit to void
    in the seven years since its issuance, it is the opinion of
    this office that if the members of your proposed police force,
    by whatever name such force may be designated; aireappointed
    under the provisions of, and in compliance with.the require-
    ments of Article 998, or similar home rule charter provisions,
    they will be peace officers and as such, while in the actual
    'discharge of their official duties, will be, by the provisions
    of Article   404 specifically exempted from the prohibitions
    of Article 4831 and accordingly, your first question is
    answered in the.affirmative.
    Article 1583-2, Vernon's Penal Code, prescribes minimum
    compensation for firemen and policemen in cities of 10,000
    population and over.  Section 2 of said Article 1583-2 reads
    \.. as follows:
    "Any city official, or officials, who have charge
    of the Fire Department or Police Department, or
    who are responsible for the fixing.of the wages
    herein provided in any such city who viol&e any
    provisions of this Act, shall be fined not less
    than Ten ($10.00) Dollars or more than One Hund-
    red ($100.00) Dollars: and each day on which such
    city official, or officials, shall cause or permit
    any violation of this Act shall constitute and be
    a separate offense."
    i .i
    ',
    - 1369 -
    3
    Hon.   W.C, Lindsey, Page 4, (~-282)
    It is the opinion of this office that even though    :
    there is no provision contained in said Article 1583-2
    which would make it a violation of Article 403 for such
    policeman to carry a pistol or other weapon while in the
    'actualdischarge of this duty if he were so employed with-
    out compensation in a city of over 10,000 population, the
    employs&t of such office; without compliance with the pay
    requirements of Article 1583-2 would constitute a violation
    on the part of the above-referred official and, therefore,
    your second question should be answered in the negative,
    SUMMARY
    Auxiliary policemen appointed in accordance
    with Article 998, V.C.S., are not prohibited
    from carrying a pistol while in the actual
    discharge of their official duty even though
    they are paid no compensation for their
    services when they are so employed by a city
    having a population of less than 10oOOO by
    the preceding Federal Census and which city
    is not covered by the Civil Service Act Art,
    1269m, V,C.S.), but such employment without
    compensation in cities of over 10,000 would
    subject certain city officials to penal f$ne
    under the provisions of rtrcle 1583-2, VOPOCO
    A
    Prepared by Monroe Clayton
    Assistant Attorney General
    ._   APPROVED:
    OPINION COWMITTEE
    Hawthorne Phillips, Chairman
    Xerns Taylor, Co-Chairman
    Bob Lattimore
    Jim Vollers
    Harold Kennedy
    Robert Owen
    STAFF LEGAL ASSISTANT
    A.J, Carubbi, Jr,
    

Document Info

Docket Number: M-282

Judges: Crawford Martin

Filed Date: 7/2/1968

Precedential Status: Precedential

Modified Date: 2/18/2017