Untitled Texas Attorney General Opinion ( 1968 )

. 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,