Untitled Texas Attorney General Opinion ( 1945 )

,:ff()&-nev Ge+--- - I:: OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Hon. Fred V. blsrldlth County Attorney !wzn” c$lnt Y , ~OXziS Drar Fir: Opinion 100. O-4372 Ro, ?harItf of “:?mtfiia th Bxmlen CotiatyoWl eppoint ‘-a deputy aherWr Mthout I. M5tponaeti0a b.eLngpaid to ,’ zQuoh,deputy,and related msttera. Your letter ot naeet’~dste, raqueatinq the opinion oi~thls department mV.oertala queetium? atatad therein, Is, In part, 8s roliowai “Csn the ?keilff ai ration @Otinty appoint e deputy shevlrt without aampeneetion beide.peld to suoh dbputy? ‘Y, ,.3.stinah.Cdtityhe* a.populetIon of 38,308 $k$gto tha 1?&0~Fadsral Centaur.dy authority 12a, 9~0. 13,tha CQN~BSIQ``~E Court iixed the bsluziesof oounty Qffioers, ino1ud.l~ 9herFtt. Our Oamalsaionare Court hse suthorizad and fixed sel- aria8 iQr’~twQ~daputIaaIn tha C’harIrf*sottloa, end thoaa appointments have been msda. One daputy rhsrirr rbeldbp lagthe City of Tarrell, in Juetlaa Praoinat NQ.>~;3ti,ICauWan CcGnty. WlaJustIoe precinct No. 3 la lool*tadTerre11 Aviation, Ltd., en sirport situetwd upon lend beloag- 1% to Ksulmu!n County end being oparnted by l&j. T. ??. Long snd assooiatae In limited pertnerehip, v&loh Is a school for the fllr,httraining of Rrltlsh oadsts, e.nd knoun (IS Brltieh Flight Training Sohool Co. 1. T.hls sohool Is the reoirient Or many gretultlee from botk the City of Terre11 end County of Kaufman. es well es frm the Zafenso Plant Corporation. Forr,erlp,sure .imerIoen cndeta alone Hlth the British were trained there, but now only Rritiah. The predeoeseor in the ‘-herifr*aoffloe, fa: li:le with request fran the aahool’a offlclals, appointed two or three deputy Hon. Fred V. Mtridlth, page 2 sharlfra,among tha employeea of the school; these OQ~XI~S``Q~K were merely honorary, and married no compen8atloa, a8 the raohoolwanted to hare swt officers on the premises who %ould he authorized to aot in oaae of hreaohts of the ptaea, aiaoe the eohool la looattd out at the edge of the olty. - "Terre11 Atiat1on, Ltd., through Ita paramnel managar, haa now raquesttd our Yherlff to appoint a deputy there, and rtqueating that the -ergtent of tha Guard at the aehool be ao appointed. Our ?htrIff attbndad the aohoal of Instruction for newly eltoted "htriffs at Damp Yabry. and has some sort oi recolleo- tloa that et this sohool he was edvlstd that he could appoint no deputy sheriff Who we3 QOt paid ocmpenae- tion oi at least fbO.00 per ronth. He atema to reoolltct that there waa either a deofsion on this point, or an tttorney general's opinion to this errtot, and hssi- tatea to give t raply to Terre11 Avlatlon, Ltd., oon- ceming their request until L.tia oorrtotly advised. If there be tush, I would appreaiatt aitation or oopy of oplnlon. *I note from the provlfilonsof Art. 6869, that a fheritf may appoint dtputIat* . . . not txoetdlng three In the Juatlot preolnot In which la looatad the oounty site oi auah oounty, and one in each Juatioa prtaInot....* The City of Tame11 Is lotattd, ad well aa Terre11 Avltv tloa, Ltd., In Juatlce preoinot Ho. 3, and the .Sharlfi already haa oae duly oonatituted deputy, drawing monthly ooapanabtion by salary, residing In this preolnot. I find no apeolal aot of the Legislature wlth raapeat to deputlaa ror the 3herIff In oountlea of a population Or 38,308,e8 la KatimrP County. *xi the Sheriff of x8urman Gounty appointed, with tha aanotlon and approval of the ComnissIonara Court, a. deputy ahtrlff to sot only on tha prtmLees of Terre11 Aviation, Ltd., tiithoutoompeneetlon from the ttld Kaufman County, and without feea Or offlot, would auah appointee ba tuthorized to aarry a pistol and be a duly conatltuttd poaoe orricer, hi:6sots as auoh on said prtmlsea r):sd ba legally performed? Hon. Fred V. Merldltb, page 3 “(2) Is them suoh a thing as an ‘honorary’ deguty ~shirlf?*a oamnlsslon? , . . .* Article 3902, Vel7aon'S Annotetbd Civil Ctatutea, provides, in part! w?ammver any distriot, oounty, -or precinot ofrloer Jhail r6quire the sarvioerrof deputies, assistants or clerks in the ~pclrrormanoe or hia duties, ha shall agply to the aounty aomm.%saion- era’ oaurt or hl8 oaty for authorl~tyto appoint suah deputlee, eumintsnts or olarks, stating by sworn applioetion the number needed, the positian to be filled and the amount to be paid. . . .* In oonneotlon with ths foregdng statute, your atten- tion ia dlreetcd to Artiole 6869, Vernon’s Annotated Civil Xatutes, tiich provides in part as follows: T ?herirrs shell have the povmr, by writing, to appoint one or nors daputiea ror their respeo- tire counties. . . . . the number-or deputier ap- rainted by the sherltr or any one oounty shall be llaited to not exaaedlng three of the Justice eeoinots in whioh in looated the oouoty site of sooh ocunty, and one in each Justfoe ?raalnet, and a list of these appointments shall be postad up in a aonspiououa plses in ths clerk’s ofrice.....* This Dapartment has ruled prior to and einoa the. enaotment of tha qrasant oftloersl salary bill, under whioh Ksufmsn County la now runatloning thst Artiole 6869 has been auperasded by Art. 3902 in so far as said statutes are Zn c0nriict. This departm@nt held in Opinion No. C-12 that Art. 6869 has been superseded by Art. 3902 in so rar as said SthtUteS SrS in COnfliOt. 30 quote rran Opinion So. C-12, in part, as follows: “Thla depsrtesnt ie not In possession of any deiinltu dsclsi~onaffeatlng the queatl.)nat hand, and therefore must arrive at the oonaluslcju that Art. 6869. . . . ::ihioh applies t ths sheriffs under the fee law haa been super 8 eded . . . . by Art. 3902 . . . . and by the oriieersq salary law 0r the 7tat.eor Texas. Hon. Fred v. i,:erldlth, ;?sze1, . It rests %rlt;lnthe discretion of Cotxt:;, as to ths number or deputies which the shollldemploy.e It is stated In the case of Tarraat County vs. hith, 81 $. “‘. (261, 537: “The Coremissioners'Court 0811limit the number and salary of deputy aherifis but they have no ?ower over the nanins of the individuals to be appointed, and are espooially :rohiblted from attempting tiny such last nemed influenoe. Fx. I. ;:rt.3902.” In Gpl3loo No. 3-925, zendercd by this,deoartmem, it IS stated: “In the case o,i‘Trammelvs. Yheltos, 45 -. . ?i9, the relevant provisiona of Art. 6869 substantially the sa!:eas enacted In 1989 ~ which grants authority to the Zheriif to egpolnt deputirs ~ni limit their number nas held to bo directory. “ueh authority as was by thla Artlole and creviouslp at common law p.fven Co :;he ?herlrf was SJ general law supermade& end invested in the Commissioners1 Court under the provision6 or rirti- ala 3902, eupra. Suoh e oon8truetion as would harmonize the two srtlolas, 6869 end 3902, supre, should ba dven -with the later article oontrolling. rhlle said :rtlele d6i169 seek8 to llmlt the diaoretion to be exeroised by the Sherirr, we osnnot say thst suoh Artiofe would, as a matter of law, restrict the power of the Comxlsoionera’ Court under Artiola 3902, a a amended, should the Sects warrant the neoessitp for the appointment by the SheriTZ or more deputies then would he permitted under the pro- visions or Artlole 6869.” It WBB held in cur Opinion So. ~-1~96 that 9 aherlrr hea authority, ;ulththe approval d the oonmissioners court. to appoifit a deputy to servb without any compensation. ‘?crerore, in anewer to your rirst questicz. you are respeotiullg advised that it Ia our opinion that the lheriii of’ ?mdman County can oscolnt a deputy sherLrr i3lththe approval or the onmmiasioncrs’-curt, to serve without any compensation. Hon. Fred V. Fdderidlth, page 5 In connection 31th the foregoing ntrtement, we dlreot your ettentlon to our Opinion No. C-4420, wherein it la statedl .~ *In the went a Commleaiomers’ Court authorizes the cherirr to appoint additional deputies to aerte without pay, the order authorizing euoh appointment should atate that the deputies to be appointed are to be allowed no salary, else they mlsht be eble to reooter for the mrrloes on 8 quantufnmerit basis. Eerrlr County vs. Nerllle (Civil Appeels) 84 3. '7. (26) 834." In answer to your ssoond question, you ere advised that,it is the opinion of this department that IIdeputy sheriff appointed to serve without oompansatlon could legally oarry a pistol when eotuslly engaged in the disoherge of hia orrieial duty. (Tee *irticlea485 and 484, Vernon’@ Annotated Penal Code). The provlslons omtalhed in Article 484, 'Ternon'siihnoteted Fenal Code, regardlog ocmpensetlon of ,!40.00,or more, per month, is applicable to deputy oonstebles and speolal polioemen end hee no applio~tion to e deputy sherirr. It is our further opinion thet a deputy sheriff who la eppoizted in oonformlty with the foregoing stcatutes and who IS serving without oompenssitlonwould have the aem authority to aot in dlsoherging his offiolcl duties as any other deputy sherifi appointed. Your third question is, “Ia there euoh a thing as en *honorary* deputy sharirr’s oommisaion:‘* In emwer to this pus&ion, you are adviaod that we hate been unable to- find any statuto or oase Tertaining to t&10 c;uestion. Wo know of no law authorizing the iasuanoe of an *honorargw doputg rherirr’s ~omnission. Yours very truly,