Untitled Texas Attorney General Opinion ( 1971 )

llonorableWilliam W. Day Opinion NO. M-1026
County Attorney
Calhoun County Courthouse
Port Lavaca, Texas 77979
We: Reserve Deputy
Dear Sir: Sheriffs
You have requested the opinion of this office concerning
certain statutes passed by the Sixty-second Legislature cre-
ating and governing a new classification of peace officer
known as "Reserve Deputy Sheriff". Your inquiry is so re-
stricted as to eliminate our consideration of *Reserve Deputy
Constable' and “Reserve Police Officer*.
Your inquiry concerns the following questioner
1. Is the "grandfather clause* applicable to a “Reserve
Deputy Sheriff"7
2. May an uncompensated “Reserve Deputy Sheriff" legally
carry a weapon and function as a police officer?
3. Is recompense for equipment and uniforms optional to
the county?
4. May private concerns employ “Reserve Deputy Sheriffs"
for pay and assign them as security officers, watchmen, bouncers,
etc?
s. May a "Reserve Deputy Sheriff* function alone or must
he ue accompanied by a *regular" officer?
b.An inquiry concerning county liability to a
Reserve Deputy Sheriff that is answered by Attorney General
Opinion DO. M-990 (19711, a copy of which has been sent you
under separate cover.
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Donorable William W. Day, page 2 (M-1026)
.
Senate Dill 43, Acts 62nd Legislature, Regular Session
(1971)' defines and authorizes the appointment of Reserve Deputy
Sheriffs as follows8
"Section 1. (a) The Commissioners Court of any
county in the State may authorize the sheriff of the
county to appoint reserve deputy sheriffs, . . . who
shall be subject to serve as peace officers during the
actual discharge of their official duties upon call,of
the sheriff, . . .
"(b,) The Commissioners Court may limit the number
of reserve deputy sheriffs . . . who may be appointed.
"(cl 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 officers to preserve the peace and
enforce the law . . .
'(d) Such reserve deputy sheriffs . . . shall
serve without pay but the Commissioners Court may
provide compensation for the purchase of uniforms and/or
equipment used by such individuals.
'Ye) Such reserve deputy sheriffs . . . prior tt5
theirentry upon duty and simultaneously with their
appointments, shall file an oath and bond in the amount
of Two Thousand Dollars ($2,000), payable to the sher-
iff, . . .
“(f) Such reserve deputy sheriffs, while on active
duty at the call of the sheriff and while actively engaged
in their assigned duties: . . . shall be vested with the
sams rights, privileges, obligations and duties of any
other peace officer of the State of Texas.
"Sec. 4. Any qualifications established for the
position of reserve deputy sheriff . . . by the Corn
missioners Court shall meet the minimum physical, mental,
kh. SOG, p. 1739, codified by Vernon as Art. 6969.1, Sec. 1,
V.C.S.
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IlonorableWilliam W. Day, page 3 (M-1026)
educational,
- . . and moral standards established by the
commrss~on on Law Enforcement Officer Standards and
Education, but may be stricter than the standards of the
commission."
At a time subsequent to the foregoin Senate Bill 72, Acts
62nd Legislature, Regular Session, (1971)!ie
was passed which also
defined and authorized the appointment of Reserve Deputy
Sheriffs (as well as Reserve Deputy Constables and a police
force reserve). There might have been conflicts between these
two Acts but the passage 05 Senate Bill 17, Acts 62nd Legislature,
1st Called Session, (1971) clarified any such conflicts and
repealed all of Senate Bill 72 (supra) relating to sheriffs
and constables with the minor exception concerning educational
standards and training which is non-conflicting.
By harmonizing these three Acts we find the following ap-
plicable education and training requirements as applied to
reserve deputy sheriffs:
1. Senate Bill 43, Sec. 34, imposes the burden on the
Commission on Law Enforcement Officer Standards and Education
tot
* . . . establish minimum training standards for
all reserve law enforcement officers which must be
FiiTfmefore a person appointed as a reserve law
enforcement officer-may car-6 a weapon or otherwise
act as a peace officer.* (emphasis added).
2. Senate Bill 72, Sec. S5, imposes the burden as to
deputy sheriffs that:
'Ch. 829, p. 2531; the relevant Sections are codified by
Vernon as Art. 6869.2, Sec. 1, V.C.S., Art. 4413 (29aa), Sec.
ZA, V.C.S., and Art. 990a, note, V.C.S.
3ch. 4, p. 3434, Codified by Vernon as Art. 6869.2, Sec.
1 and 2, V.C.S. and Art. 4413 (29aa), Sec. ZA, V.C.S.
4Art. 4413 (29aa), Sec. 2A, V.C.S.
5
Art. 99Sa, note, V.C.S., and Art. 6869.2, note, V.C.S.
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. ilonorablcWilliam W. Day, page 4 (M-1026)
"Any qualifications established for the position
of reserve deputy sheriff . . . by the Commissioners
Court, . . . shall meet the minimum physical, mental,
educational, and moral standards established by the
Commission on Law Enforcement Officer Standards and
Bducation, but may be stricter than the standards of
the Commission."
And Senate Bill 72, Sec. 66, (supra) sets forth the follow-
ing "grandfather clause":
"Section 6. Any person serving as a reserve
law enforcement officer before the effective date of
this Act may be appointed to temporarily serve as a
reserve law enforcement officer without fulfilling
the minimum training standards established by the
Commission on Law Bnforcement Officer Standards and
Education. In no case shall any person serve as a
reserve law enforcement officer after January 1,
1973, unless he has fulfilled the minimum physical,
mental, educational, moral and training standards
established by the Commission on Law Enforcement
Officer Standards and Education."
I.
Since Senate Bill 17 (supra) repealed all material
reference in Senate Bill 72 to anything but "police reserve
force", it is the opinion of this office that Reserve Deputy
Sheriffs may not qualify under the grandfather clause.
II.
Article 403, Texas Penal Code, prohibits the carrying
of a pistol (and other weapons) in the State of Texas.
Article 484, Texas Penal Code, exempts, inter alia, ". . .
any peace officer in the actual discharge of hisofficial
duty. . ." Senate Bill 43 (supra) makes a Reserve Deputy
Sheriff a peace officer when called into service. Therefore,
it is the opinion of this office that a Reserve Deputy Sheriff
'Art. 99Sa, note, V.C.S., and Art. 6869.2, note, V.C.S.
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.
llonorablaWilliam W. Day, page 5 (M-1026)
may be armed and function as a peace officer when (and only
when) called into service as provided by the new law.
III.
Since the new law uses the word “may” with regard to com-
pensation for uniforms and equipment, it is the opinion of
this office that the statute on its face makes it discretion-
ary with the Commissioners Court to pay or not pay for Such
items.
IV.
Although no impediment is perceived to prevent the
appointrxnt of persons as Reserve Deputy Sheriffs who are
normally employed as industrial guards, bouncers, night
watchmen, etc., some questions might arise concerning con-
flict between such employment and the discharge of one's
duties as a peace officer. Since no Court has yet had an
opportunity to interpret the phrase "while on active duty at
the call of the sheriff and while actively engaged in their
assigned duties," our response on this matter will petrforce
be concluded in general terms. It is the opinion of this
office that Reserve Deputy Sheriffs while on active service
will resolve employment conflicts in the same manner and on
the sa~x basis as regular deputiesr while not on active
service no conflict exists.
V.
There being no restriction contained in the statute,
it is the opinion of this office that while on active duty
a Resarve Deputy Sheriff may function alone, subject only
to the same jurisdictional and venue restrictions imposed
by law on regular deputies.
S U MI4A
------- R Y
A Reserve Deputy Sheriff may not qualify
undar the "grandfothor clause.”
A Reservu Deputy Sheriff may legally carry
a weapon while on active duty (even though not
government compensated).
,
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IlonorablcWilliam W. Day, page G (M-1026)
Compensation for uniforms and equipment
of Reserve Deputy Sheriffs is entirely dis-
cretionary with Commissioners Court.
Reserve Deputy Sheriffs, while on active
duty, are governed as to employment conflicts
in the same manner as regular deputies.
A Reserve Deputy Sheriff on active duty
may function alone and need not necessarily be
accompanied Ly a “regular” officer.
.I
ey General of Texas
Prepared by Howard 11.Fender
Assistant Attorney General
APPROVED:
OPINION COIWITTEE
Kerns Taylor, Chairman
N. E. Allen, Co-Chairman
Jay Floyd
Dunklin Sullivan
lienHarrison
Jack Sparks
Bill Flanary
SAIl1XZDANIRL
Staff Legal Assistant
ALFRXD WUXi3l
Executive Assistant
iJOLAIJIIIT'E
First Assistant
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