Untitled Texas Attorney General Opinion ( 1983 )

‘. ’ .” ’
The Attorney General of Texas
December 29. 1983
JIM MATTOX
Attorney General
supwmacewl eullsl~ Hooorablc Ray Kell6r Opinion No. 34-102
P. 0. Box12545 ctlairman
*uaun. TX 7871% 2545
Committee on Lav Enforclmeut lb?: Whether a coaatable or
m?l47sE41
T.bx ews74.1j(l7
Texas Eouse of Representatives sheriff may appoint full-time
Tabulpbr 512J475am P. 0. Box 2910 deputies who receive no cow
Austin. Texas 78769 pensation
714 J*ckwn. sun4 700
Dear Repreeentatlve Keller:
tblbh lx 752mA506
214n424044
You have requeeted our opinion regarding the authority of county
,sheriff6 and constable6 to appoint deputy peace officers who will
receive no compensation. It is our opinion that etate lav does not
require lawfully appointed deputy peace officers to necessarily
receive any compensation. However, we believe that any person
conmisaioncd as a peace officer by a city or a county who will receive
1001Terar.sun. 700 no compensation muat nevertheless perform some legitimate law
Hourton. lx. 77002-2111 enforcement dutiee. It is not a proper purpose for a deputizing
7l2i222.5am authority to designate an individual as a peace ,officer vho will do
nothing for the political entity facilitating his appointment.
Purthermore, we do not believe that a person may be .deputired as a
peace..officer often trained, educated and certified soften at public
expense solely to enable that person to secure private employment in 6
(Iecurlty related fi6ld. See JM-57 (1983). The Private Investigator6
and Private Security Agcie6 Act m6kea an exception from its
4200 N. Tefafh. Sulb S
McAllm. TX. 7550%15afi licensing requirements for aa person who ha6 full-Mm6 employment as a
512mB24547 : peace officer.” :.V.T.CiS. art. 4413(29bb). ‘)3(a)(3). In this opinion
we limit our inswer’to,the simple question of:whether s peace officer
mum rcceivc compeoePtion. We do :not sddre66 the una6ked questions
,:concerning the legality :oz liability vhicb mighty -ari66 from the
practice-of -permitting p66ce officers to UtiliZ6 public property and
suthority .in the pursuit of personal snd private gain in connection
with employmentin the private 6ector. .Cf.
- V.T.C.S: art. 4413(29bb),
An Equ*l ODporrunnp C28(d). .. 1)
Afflrm.IlW Acflon Empfoyw
A county may not be required to pay ~deputy peace officers in
accordance with a binding salary c’lassiflcation schedule. Article
12699, V.X.C.S.. amended this ,year;Acts 1983. 68th Leg., ch. 433. at
2632, requfres counties of more than 75.000 population to
6et up classifications in the Sheriff’6 . . .
[department.] providing for dutieo under such
Honorable Kay Keller - Page 2 (Jn-102)
classificationa and salary for each classifica-
tion; and thereafter any member of any
Sheriff’s . . . Department who lo called upon to
perform the duties under any such classification
shall be paid the salary provided therefore for
such period as he performs such duties.
Furthermore, article 12699. as amended, provides for a county wide
vote upon a petition signed by 25% of the qualified voters to require
that the county pay certain minimum salsrles for each “rank. pay
grade, or classification” within the sheriff’s office.
Article 2372h-8. V.T.C.S., now applicable to counties of more
than l.SOO.000 population permits the establishment of a civil service
system within the sheriff’s department follovlng a favorable vote
among the department’s employees. See Acts 1983, 68th Leg., ch. 570.
at 3410. The civil service commlesl~may adopt rules and regulations
relating to the classification of and benefits paid to deputy sheriffs
and other department employeee. The statute does not apply to
constables. See also V.T.C.S. art. 2372h-4. (comprehensive civil
service system in counties of 200,000).
The Fire and Police Employee Relations Act. article SlS4c-1.
V.T.C.S., permits collective bargaining’ to determine the wages to be
paid In the sheriff’6 office. Hovever , the statute applies only to
“full-time paid employee[s].” Id. 13(2). Deputies who are paid are
required to be compensated on abasls substantially comparable to the
private sector. Id. 14. A county wide election is required to adopt
the provisions 0Grticle SlS4c-1. Id. 15(c). See Commissioners’
Court.., of _,..El Paso County v. El Pax County Sheriff’s Deputies
Association; 620 S.W.2d 900 (Tex. Civ. App. - El Paso 1981, writ ref’d
n.r.e.).
Each position of deputy sheriff or constable, whether compensated
or not, Oust first be .approved by the co+ssioners’ court.
:Nevertheless , .the,.sherlff or constable is authorized to cnlfst the
assistance of .citizens for the supression of civil disturbances.
V.T.C.S. art. 6886 (authority of constable to call citizen to his
aid); Code Crlm. Proc. arts. 6.05. 6.06, 8.01. 8.05. Article 8.09 of
the Code of Criminal Procedure provides that such “special constables”
have the authority of peace officers. See Gonzales v. State. 110 S.U.
740 (Tex. Grim. App. 1908). Article~69. V.T.C.S.. specifically
provides for the appointment of deputy sheriffs:
Sheriffs shall have the power. by writing. to
appoint one or more deputies for their respective
counties. to continue in office during the
pleasure of the sheriff. who shall have power and
-\
authority to perform all the acts and duties of
p. 429
Honorable Ray Keller - Page 3 (~14-102)
their principals; and every person so appointed
shall, before he enters upon the duties of his
office, take and subscribe to th6 official
oath . . . .
See also V.T.C.S. arts. 6869s (repeated twice in the Civil Statutes),
6869b. 6869c. 6869e-1. 6869f. The sheriff is respoosiblc for the acts
of hi6 deputie6. V.T.C.S. art. 6870. Article 68796, V.T.C.S..
provide6 for the appointment of deputy constables:
The duly elected Constablc in each Justice
Precinct may appoint Deputiee in accordance with
the provisions of Section 2 of this Act. 6nd each
and every instance said Deputy Constables shall
qualify as required of Deputy Sheriffs.
Section 2 of the statute provides for the constable to make
application to the commissioners' court for the approval of the
appointment of deputies in his office:
said Constable shall first make written
application to the Comaissioners' Court of his
County shoving that it is necessary for such
Constable to have the Deputy or Deputies requested
in order to properly handle the business of his
office originating in the Precinct in which such
Constablc ha6 been elected giving the name of each
proposed appointee; and if the Commissioners'
Court shall find that the Constable Is in need of
a Deputy or Deputies requested to handle the
businees originating In his Precinct, then and in
that : event. and in that event -1y. the
.Commlssioners' Court shall approve and confirm the
:piinnent of the Deputy or Deputies provided by
.
The statute ;a160 impoees a fine of not more than $1,000 on any
constable or deputy~vhere the appointment is made without the consent
and approval of the cmissioners' court. V.T.C.S. art. 6879a. 13.
The con6table. like the sheriff, is responsible for the acts of his
deputiee. V.T.C.S. art. 6879b.
Reserve deputy eheriffs snd constables may be appointed pursuant
to articles 6869.1. V.T.C.S. The coa4ssioner6' court is entitled by
the statute to limit the number of such resewe peace officers. Id.
Cl(b). The c~isaioneru' court may. but is not required. to prov=
compensation and reimbursement of expenses incurred by reserve peace
officers. Id. II(d); see Attorney Cenersl Opinion M-1026 (1971) (the
lau es originally enactedprovided that the county was prohibited from
. . I
Honorable Ray Keller - Page 4 (.j&lD2)
compensating reserve peace officerrr). Acte 1971, 62nd Leg., ch. 506,
Ii(d).
In Attorney General Opinion H-1002 (1977) it va6 concluded that a
sheriff lacked authority to appoint uncertified "special deputlee" to
patrol an annual county celebration. Similarly, in Attorney General
Opinion V-1050 (1950). it was concluded that sheriffs and constables
did not have th6 authority to issue "sp6clal cessions" without
obtaining commissioners' court authoritation'under article 3902.
Deputy peace officers must meet the standards promulgated by the
Mssion on Law Enforcement Standard6 and Education. V.T.C.S. art.
4413(29aa). This statute requires testing and training for physical
and mental fitness. l4inimun standards for legal education and weapons
training are required. This law does not require peace officers to bc
paid.
Article 3902. V.T.C.S.. is the general statute providing for the
appointment of ssslstants and deputies for county officisls. See also
V.T.C.S art. 3912k. Although the portion6 of article 3902, vhlch
limit the coarpensation of deputies in counties of certain population.
are either unconstitutional as special laws or impliedly repealed. its
lntroductorg paragraph provides in pertinent part a6 follow:
Whenever any district. county, or precinct officer
shall require the services of deputies,
assistants. or clerks in the performance of his
duties, he ahall apply to the County
Caamissioners' Court of his county for authority
to appoint such deputies, assistants or clerks.
6tating by worn application the number needed.
the position to be filled. and the amount to be
paid . . . . said court shall mak6 its order
authorizing the appointment of such deputies,
assistants, and clerks end fix the compensation to
be paid them . . . . provided that in no case
shall the tiissioners' Court or any .member
thereof atteppt'to influence the appointmnt of
any person as deputy, assistant or clerk in any
office. Upon the entry of such order th6 officers
applying for such essi6tants. deputies or clerks
shall be authorized to appoint them.
See Renfro v. Shropshire, 366 S.W.2d 688 (Tex. Civ. App. - Rastlsnd
1978, writ ref'd 0.r.e.). Article 3912k authorizes the coaualssioners'
court to fix the compensation and expenaes of county officials and
employees. This statute does not prohibit county employees from
serving vlthout compensstion.
p. 431
Honorable Ray Keller - Page 5 (313-102)
SUMMARY
Conatables and sheriffs are authorized to
appoint deputies to eerve without compensation in
positions approved by the commissionera’ court.
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by David Brooks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpfn. Chairman
Jon Bible
David Brooks .
Colin Carl
SuEan Garrison
Jim Woellinger
Nancy Sutton
I _I*