Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 20, 2009
The Honorable Pete Gallego Opinion No. GA-0709
Chair, Committee on Criminal Jurisprudence
Texas House of Representatives Re: Authority of a county attorney to issue
Post Office Box 2910 commissions for reserve or nonpaid peace
Austin, Texas 78768-2910 officers (RQ-0730-GA)
Dear Representative Gallego:
You have requested that we answer a question submitted by your colleague, Representative
Joe Driver, former chair of the Committee on Law Enforcement. We were asked whether a county
attorney has authority to commission reserve or nonpaid peace officers. 1 We find no reference in
the statutes to a "nonpaid" peace officer and thus consider a county attorney's authority only with
respect to "reserve" peace officers. But see TEx. WATER CODE ANN. § 60.0775 (Vernon Supp.
2008) (describing volunteer police reserve force).
The term "reserve law enforcement officer" is defined in section 1701.001, Occupations
Code, to mean those officers appointed under sections 85.004, 86.012, and 341.012, Local
Government Code, and section 60.0775, Water Code. TEx. Occ. CODE ANN. § 1701.001 (6) (Vernon
Supp. 2008). Respectively, those provisions authorize the appointment of sheriff and constable
reserve deputies, a municipal reserve police force, and a navigation district volunteer police reserve
force. See TEx. Lac. GOV'T CODE ANN. §§ 85.004 (Vernon 2008) (providing for appointment of
reserve deputies by the sheriff), 86.012 (providing for the appointment ofreserve deputy constables),
341.012 (Vernon 2005) (authorizing the governing body of a municipality to establish a police
reserve force); TEx. WATER CODE ANN. § 60.0775 (Vernon Supp. 2008) (providing for the
establishment of a volunteer police reserve force). Chapter 1701 contains no authorization for a
"reserve" peace officer under the auspices of a county attorney.
Three ofthe provisions in section 1701.001 defining reserve law enforcement officer are also
referenced in article 2.12, Code of Criminal Procedure. See TEx. CODE CRIM. PROC. ANN. art. 2.12
(Vernon Supp. 2008). In article 2.12, the definition of the term peace officer includes express
reference to particular reserve officers. Article 2.12( 1) provides that "reserve [sheriff] deputies who
hold a permanent peace officer license issued under Chapter 1701, Occupations Code" are peace
officers. See id art. 2.12(1). And "reserve deputy constables who hold a permanent peace officer
lSee Request Letter (available at http://www.texasattomeygeneral.gov).
The Honorable Pete Gallego - Page 2 (GA-0709)
license issued under Chapter 1701" are peace officers. See id. art. 2.l2(2). Finally, "reserve
municipal police officers who hold a permanent peace officer license issued under Chapter 1701"
are defined by article 2.12 as peace officers. See id. art. 2.12(3). Aside from these three sections,
article 2.12 makes no provision for other types of "reserve" peace officers.
Chapter 41 of the Government Code governs the powers and duties of county attorneys. See
generally TEx. GOV'T CODE ANN. §§ 41.001-.310 (Vernon 2004 & Supp. 2008). It authorizes a
county attorney to "employ . .. investigators." Id. § 41.102(a) (Vernon Supp. 2008) (emphasis
added). An investigator of a county attorney is defined as a peace officer under the Code of Criminal
Procedure. See TEx. CODECRIM. PROC. ANN. art. 2.12(5) (Vernon Supp. 2008) (defining the term
"peace officer" to include investigators of county attorneys). However, we find no authority in
chapter 41 for a county attorney to commission or appoint "reserve" investigators or peace officers.
In chapter 1701 ofthe Occupations Code and article 2.12 ofthe Code of Criminal Procedure,
the Legislature specifically enumerated those officers with authority to appoint "reserve" peace
officers and thereby demonstrated it knows how to bestow that authority. See FM Props. Operating
Co. v. City 0/ Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on the principle of statutory
construction that the Legislature knows how to enact laws effectuating its intent); accord
CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coal. o/Cities, 263 S.W.3d 448, 461 (Tex.
App.-Austin 2008, pet. filed). It has not provided that authority with respect to county attorneys.
Further, chapter 41 of the Government Code does not authorize a county attorney to appoint
"reserve" investigators or peace officers. See TEx. Gov' TCODE ANN. §§ 41.001-.310 (Vernon 2004
& Supp. 2008). Public officers, such as a county attorney, possess only such powers as are expressly
conferred upon them by law or are necessarily implied from the powers so conferred. See Bullock
v. Calvert, 480 S.W.2d 367, 371 (Tex. 1972). Thus, because no statute provides express or
necessarily implied authority, we must conclude that a county attorney is not authorized to appoint
reserve peace officers.
The Honorable Pete Gallego - Page 3 (GA-0709)
SUMMARY
A county attorney is not authorized to appoint reserve peace
officers.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee