Untitled Texas Attorney General Opinion

May 1, 1950
Hon. A, C. Winborn Opinion No. V-1050.
District Attorney
Harris County Re: Authority of sheriffs and con-
Houstonr Texas stables to issue commissions
for special deputy sheriffs
Dear Sir: an& constables.
Your request for an opinion is in part as fol-
lows:
: ~"Thesheriff and the various constables
of Harris County have in the past and are now
issuing to private indlviCjualscommissionsas
special deputy sheriffs and special ileputy
~.constables.Those So appointed do not receive
any salary or perform any offlcial‘duties. It
is my personal opinion that the chief reasons
for the issuance-of these special conm.dssion~
are mostly honorary.
~"QuestionHo. 1
"Is there any,--statutory
authority author-
- izing the issuance of a special 'deputysher-
iff's commission or a special deputy consta-
ble's commission?
'Questipn 1po.2
'"If,thereis no authority,forthe issuance
of a special deputy sheriff's commission or a
special deputy constable's commission,.is one
who issues such special commission Andythe one
receiving it guilty of any violation of the
law?."
We quote the following statutory provisions
relative to the appointment of deputy sheriffs and dep-
uty constables. ,.,.
Article 3902, V..C.S.:
"Whenever any district, county or pre-
ckct officer shall require the services of
T.
42~4 . .
Hon. A.~C. H&born,-pag~e 2 (V-1050)
deputies, assistants or clerks in the per-
formance of his duties he shall apply to the
County Commissioners'Court of his county
for.authority to appoint such deputies, as-
sistants or clerks, stating by sworn applica-
tion the number needed, the position to be
filled and the amount tobe paid. Said ap-
plication shall be accompaniedby a state-
ment showing the probable receipts from fees
. '. . and the probable disbursementswhich
: shall-include all salaries and expenses of
~-saidoffice; and sala court shall make its
-order authorizing,theappointmentof such
deputies, assistants and clerks and fix the
.~ compensationto be paiclthem within the
limitationsherein prescriber3 and determIne
the number to be appointed as in the dlscre-
tion..ofsaid court may,be proper. . . Upon
the entry of such order,the officers apply-
ing'for such assistants, deputies OP clerks
shall be authorized to appoint them;.pro-
~videdthat said compensationshall not ex-
* cee,dihe maximum amount hereinafter set out.
Ed. .
,. ,.
Article 6699, V.C.S.o
'The ,Commissioners
Court of,each county,
acting in conjunctionwith the Sheriff, may
employ not more than two (2) regular deputies,
nor more than two (2) 'additionaldeputies for
special emergency to aid saia regular depu-
.ties,to be known as county traffic officers
to enforce the highway~laws of this State reg-
~ulating the use of the public highways by mo-
tor vehicles. Said deputies shall be, when-
ever practicable,motorcycle riders, and shall
be assigned to work under the direction of the
Sheriff. . . .*
Article 6869,'V.C.S.:
'Sheriffs shall have the power, by writ-.
ing, to appoint one or more deputies for
their respective counties, to continue in of-
fice during the pleasure of the sheriff, who
shall hava power and authority to perform
all the acts and duties of their principals;
and every person so appolntea shall, before
4?5
Hon. A. C. Winborn; page 3 (V-1050)
he enters upon the dukk`` I-Eb.L%d%z, +&%
landsubscribe to the official oath, which
shall be indorsed on his appointment,togeth-
er with the certificate of the officer admin-
sisteringthe same;.and such appointment and
.oath shall be recorded in the office of the
County Clerk and deposited in said office.
The number ~ofdeputies appointed by the sher-
iff of any one county shall be limited to not
exceeding three in the Justice precinct in
which is located the county site of such
county, and one in each Justlce~precinct, and
a list.of these appointments shall be posted
up ina conspicuous place in the Clerk's of-
fice. An indictment for a felony of any aep-
uty sheriff appointed shall operate a revoda-
tion of his appointment as such deputy sher-
iff. Provided further, that if in the opin-
ion of the Commissioners'Court fees of the
sheriff's office are not sufficient to justi-
fy the payment of salaries of such deputies,
the Commissioners'Court shall have the power
to pay the same out of the General Fund of
said county."
Article 68&c, V-C-S.:
. "In counties having a population in ex- '
cess of one hundred ninety seven thousand
five hundred (197,500) according to the last
preceding Federal Census, the provisiOns of
*~Article 6869, Revised Civil Statutes ,of~'Texas',-
of 1925, as amended, insofar as such limits
the number of deputies allowable to sheriffs
,shall.notapply, but the sheriff in any such
~county~shallhave the number of deputies al-
'.~,``lowed,him by the Commissioners'Court of such
couuty."
Article 687ga, V.C.S.:
~FSection1. The duly elected Constable
in each Justice Precinct having a city or town
of less than eight thousand (8,000) population
according to the preceding Federal Census may
appoint one (1) Deputy ana no more; and each
Justice Precinct having a city or town of
eight thousand (8,000) and less than forty
thousand (40,000) population according to the
Hon. A. C. Winborn, page 4 (V-1050)
_.~ .~.
preceding Federal Census may appoint two (2)
Deputies and no more; and in each Justice Pre-
cinct having a town or city of forty thousand
(40,000) population or more according to the
preceding Federal Census may appoint five (5)
Deputies and no more, and each and every in-
stance said Deputy Constables,shallqualify as
required of Deputy Sheriffs.
"Sec. 2. When the Constable in each and
every instance named and described in the pre-
ceding section of this Act shall desire to
make appointment of a Deputy or Deputies, as
the case may be, said Constable shall first
make written application to the Commissioners'
Court of his County showing that it is neces-
sary for such Constable to have the Deputy or
Deputies requested in order to properly han-
dle the business of his office originating-in
the Precinct in which such Constable has been
elected, giving the name'of each proposed ap-.
polntee; and if the Commissioners'Court
ehall find that the Constable is in neeU of
the Deputy or Deputies requested to handle the
business originating in his Precinct, then and
in that event, and in that event only, the
Commissioners1Court shall approve and confirm
the appointment of the Deputy or Deputies pro-
vided by this Act.
"Sec. 3. Any person who serves as a Dep-
uty Constable without the provisionshereof
having been compl,iedwith relative to his ap-
pointment or any Constable who issues a Deputy-
ship without the consent and approval of the
Commissioners'Court shall be fined not less
thanFifty Dollars ($50.00)nor more than Ones
Thousand Dollars ($l,OOO.OO)."
Article 102, V.C.C.P.,:
"To suppress riots, unlawful assemblies
and other disturbances at elections, any.mag-
istrate may appoint a sufficientnumber of
special constables. Such appointmentsshall
be made to each special constable, shall be
~in~writing,dated and signed by the magistrate,
and shall recite the purposes for which such
appointment is made, and the length of time it
Hon. A. 6. Winborn; page 5 (V-1050)
Is to'continue. Before the same
j,_~..._-.-,---to~such~special~constable,
is
delivered
hershall take an
oath before the magistrate to suppress, by law-
ful means, all riots, unlawful assemblies and
breaches of the peace of which he may receive
i information,and to act impartiallybetween
1 all parties and persons interested in the re-
sult of the election."
1
In Attorney General's Opinions Nos. O-12, dat-
ed January 5, 1939, and O-3925, dated September 15, 1941,
it was held that Article 3902 repealed Article 6869 inso-
far as said Article limited the number of deputy sheriffs
that may be appointed. Article 3902 sets out specifical-
ly the manner in which the ap ointment of deputies is to
be made. A. 0. Opinion O-4338 , dated February 17, 1942.
Under Articles 6699 and 6699a, county traffic officers
(special aeputy sheriffs appointed for the purpose of en-
forcing traffic laws) are appointed by the Commissioners'
Court acting in conjunctionwith the sheriff. A. G. Opin-
ion No; 0-3028, &ate& January 30, 1941. In view of the
. foregoing it is our opinion that generally the appoint-,
ment of deputy sheriffs is governed by the provisions of-
Article 39.02while the appointment of certain deputy sher-,
iffs (county traffic officers) is governed by the provi-
.sionsof Articles 6699 and 6699a..
The appointment of cleputy'constablesis govern-
ed by the provisions of Articles '3902and 687ga. Under
Article 3902, the Commissioners'Court's only authority
is to authorize the appointment while under particle
6879a-the Commissioners1Court 'may confirm or reject the.
appointmentbut cannot reject for personal reasons for
the.court can only decide the necessity for a deputy.,"
A. G. Opinion No. O-305, dated February 11, 1939. It was
the evident purpose of Articles687ga '#toprohibit any
,person.fr.omclaiming to be a de facto deputy.constable."
A.'G.'~Opinion'No.O-140, dated February 4, 1939. A Jus-
tice of the Peace has no authority to appoint a deputy or
special.constablefor any purpose other than for the sup-
pression of riots, unlawful assemblies,and other,disturb-
.ances at elections. Such aonointmentmust be made strict-
ly in accordance with Articie 102, V.C.C.P. A. G.Opinion
No. O-379, dated April 1.8,1939.
In view of the foregoing it is our opinionthat
the appointment of,deputy constables is generally govern-
ed by the ~provisionsof Articles 3902 and 687ga, while a
magistrate,in order to suppress riots, unlawful assemblies,
-*-k5. -.
m?.T-*cI-----c- _--.
42Ei ~.
'HOIX.A. C~.Winbolan,Page 6 (V-1050)
and other disturbancesat electionsmay appoint a suffi-
cient number of special deputy constablesfor such purpos-
Art. 102 V.C.C.P Each of the following officers is
?simaaistratel'within the meaning of Article 102. V.C.C.P.:
.'The3uclgesof the SupI",eme
Court; the judges of the Court
of Criminal Appeals, the judges of the district court,
.the county judge, any county commissioner,the justices of
the peace, the mayor OF recorder of an incorporatedcity
or town." Art. 33, V.C.C.P. Sheriffs and Constables are
not, therefore,magistrates under Article 102. These offi-
cers,,when needing extra deputies, may procure them from
a "magistroate"under Article.102,V.C.C.P.
Under certain circumstancesapeace officer may'
call upon citizens to assisthim, in'an emergency, in the
di.schapge.ofhis duties. Articles 38, ~92and 320, V.C.C.P.
We do not understand the facts submitted by you to raise
any question as to the exercise of that power of peace of-
ficers.
In-Attorney.General'sOplnlon No. O-20?, dated
February3, 1939, it was held that the sheriff does not
have ,legalauthority to lssue'conrmisslonsto persons who
shave .jobsas watchmen or as poundmasters or any other.
person exce t by the method prescribed in Articles 3902“
and 6869. PAs stated above it was helclin a later opinion
that the provisions of Article 6869,relattigto the number
of'the'deputieswas repealed by the provisions of Article
3902.) In Opinion No. O-4338 it was held that a sheriff
Is not authotiisedto issue a commissionto one of'his dep-
uties to guard property of a private concern and devote
his entire time to this task.
In answer to your first question, therefore,
~lt'is!ouropinion thatno statutoryauthorltg~exists for
issuing to private individuals commissionsas special dep-
uty sheriffs or special deputy constableswhen such per-
sons do not perform any official duties or receive any sal-
ary.
In'answer.to your second question we would like
to point out thatsection 3 of Article 687ga, above quot-
ed, provides that 'any person who serves as a deputy con-
stable without the provisionshereof having been complied
with relative to his appofntment'OPany constable who is-
sues a deputyshipwithout the consent and approval of the
Conm~l.ssioners~
Court shall be fined not less than $50.00
nap more than $l,OOO,OO." It is our opinion that if a
constableappoints a deputy without complying with Article
429
Hon. A. C. Winborn, page 7 (V-1050)
6879a, he will be subject to the penal provisions contain-
_,-_ e.d 3s.-&,.ctlon .3.~.in``,a:.-s~ui,t~..breu&ht br the Counts ore ,Pis -
trict Attorney as the case may be.
In connectionwith the~above we call attention
'to the provisions of Article 5968, V.C.S., whereinit is
provided:
"All convictionsby a petit jury of any
county officers for any felony, or for any
misdemeanor Involving official misconduct,
shall work an immediate removal from office
of the officer so convicted. Each such judg-
ment of conviction shall embody within it an
order removing such officer."
In view-of the provisions of Article 5968 it
'is our opinion that any constable convicted of violating
the provisions of Article 6879a, V.C.S., may be removed
from office. We know of no statute applying to the sher-
iff with similar provisions as those contained in Sectlon
3 of Article 6879a. However, Article 483, V.P.C., pro-
vides that whoever shall carry on OF about his erson a
pistol shall be punished by fine not less ~than8100.60
nor moFe than $500.00 or by confinementin jail for not
less than one month nor more than one year.
Article 484, V.P.C., provides:
.' 'The preceding article shall not apply t.o
a person in actual service as a milItiaman.
*no% to any peace officer in the actual dis-~
charge of his official duty, nor to the car-
2ylng of arms on one's own premises or place
of business, nap to persons-traveling,nor
to any deputy constable, or special policeman
who receives a compensationof forty dollars
or more per month for his services as such of-
ficer, and who Is appointed in conformitywith
the statutes authorizing such appointment;nor
to the ,Game,Fish and Oyster Commissioner,~nor
to'any deputy, when In the actual~discharge of
his duties as such, nor to any game warden, or
local deputy Game, Fish and Oyster Commission-
er when in the actual discharge of his duties
in the county of his residence, nor shall it
apply to any game warden or deputy Game, Fish
and Oyster Commissionerwho actually receives .
from the State fees or compensationfor his
services." (Emphasis added.)
Hon. A. C. Winborn, page 8 (V-1050)
In construing the provisions of Articles 483
and 484, V.P.C., the court held in Stephenson v. State,
93 Tex. Grim. 578, 249 S.W. 492 (1923):
"The evident purpose of the Legislature
in the 1918 amendment was to discourage and
prevent the useless and promiscuouscarrying
of a;ms under the guise of special deputies,
etc. (Emphasisadded.)
In the case of Gandara v. State, 94 Tex. Grim.
535, 252 S.W. 166 (1923), a person commissionedas a,
deputy sheriff wasconvicted-of carrying a pistol "on or
about his person." The defendant contended that he was
exempted from the provisions of the act since he was a
peace officer within the meaning of Article 476, Acts
1918, V.P.C. (now Art. 484). The court pointed out that
the defendant was an automobile driver for hire and that
during the time the defendant held his commission as
deputy sherfff he had ma&no arrest, had served no civil
process, and was drawing no compensationas deputy sher-
iff. The court held that he was not in the discharge of
any official duty as deputy sheriff but was caprylng his
pistol simply as a protection to himself and his passen-
gem. See also: A. G. Opinions Nos. O-5809, dated March
20, 1945, and O-6372; dated January 31, 1945.
In view of the foregoing it is OUF opinion
that any person commissionedas a special deputy sheriff
as outlined in your request would not be authorized to
carry a pistol and could be convicted for violation of
the provisions of Article 483, V.P.C., if such person
"shall carry on or about his person . '. s any pistol.n
SUMNARY
No statutory authority exists for issuing
commissions as special deputy sheriffs and spe-
cial deputy constables to serve as "special
deputies" without compensation and without per-
forming any official duties. Any constable
who issues a deputyship without complying with
the provisions of Article 687ga, V.C.S., IS
subject to the penal provisions of the act.
Any person unlawfully coaunissionedas a deputy
sheriff and who performs no official duties as
deputy sheriff is subject to the penal provi-
sions of Article 483, V.P.C., prohibiting the
unlawful carrying of arms. Arts. 3902, 6699,
432
Ron. A. C. Winb,?rn,page 9 (V-1050)
6869c, SS79a, 5958: V.6.s.; Art.
483, 484, V.P.C.; Ste-
93 Tex.Crti.- 578 -24m.
v. State, 94 Tei. Crim.
535, S.W. 156 (1923); A G. Opinions Nos.
252
0-12, O-3925, O-4338, O-3026, O-305, O-140,
O-379, o-207; o-5809, and O-6372.
: ~Yoursvery truly,,
PRICE DANIEL
APPROVED: Attorney General
J. C. Davis, Jr.
County Affairs Divis+on
Charles D. Mathews
Executive Ass,istant B6R!!??
Assistant
Joe Greenhill \
First Assistant
JR:bh