                                 The Attorney         General         of Texas
                                                 November 24, 1981
MARK WHITE
Attorney General


                               Honorable Jim Hapel                     Opinion No.   W-394
Supreme Court Building
P. 0. Box 1254a
                               Criminal District Attorney
Austin, TX. 78711              Brasoria County Courthouse              Re: Whether articles 998, 999
512/475-2501                   Angleton, Texas   77515                 and 999a. V.T.C.S.. apply to
Telex 9101874-1367                                                     towns incorporated under pro-
TekoDier     5121475-9286                                              visions of chapter 11 of Title
                                                                       28,  V.T.C.S.; or.     in the
1507 Main St.. Suite 1400                                              alternative,  what  provisions
Dallas. TX. 75201                                                      for the appointment of peace
214!?42B944                                                            officers apply when a town has
                                                                       been     incorporated    under
                                                                       chapter 11 of Title 28
4924 Alberta Ave., Suite 160
El Paso. TX. 79905
915l533.3494                   Dear Mr. Mapel:

                                    You have inquired whether the provisions of articles 998. 999 and
1220 Dallas Ave., Suite 202
Houslon, TX. 77002
                               999a, V.T.C.S., would apply to a town organized under the provisions
713/6-
                               of chapter 11 of Title 28, V.T.C.S. Your concern arises from the
                               possibility that a town under your jurisdiction might appoint an
                               unauthorized person to act as a peace officer leaving that person open
SO5 Broadway, Suite 312        to possible criminal prosecution under section 37.11 of the Texas
Lubbock. TX. 79401
SOB!747-5239
                               Penal Code.

                                    The town in question was incorporated under provisions which are
4309 N. Tenth, Suile   B       codified as chapter Il. Title 28. Its population has declined until
McAllm. TX. 78501
                               it has reached the present level of thirty (30) persons. You state
51216824547
                               there is still an acute need for local law enforcement beyond the
                               level that can be provided by the sheriff of Brazoria County. At the
200 Main Plaza. Suile 400      present time, the office of city marshal is vacant because none of the
San Antonio,   TX.   78205     residents are interested in seeking election to such office. At all
51212254191
                               times since incorporation the town has operated under the provisions
                               of chapter 11 of Title 28.

                                    It is clear that articles 998. 999 and 999a do not apply to any
                               town which has not met the prerequisites set out in article 961,
                               V.T.C.S. Article 961 provides in mandatory language in its last
                               sentence: "The provisions of this title shall not apply to any city,
                               town or village until such provisions have been accepted by the
                               council in accordance with this article."




                                                            p. 1339
Honorable Doyle W. Neighbours - Page 2     etw-394)




     Under your set of facts, the town council is authorized in
section 7, article 1146 to appoint "such officers, other than those
mentioned in this chapter. as shall be deemed necessary to carry out
the provisions of the same." In the case of Early v. State, 97 S.W.
82 (Tex. Crim. App. 1906). the court held that the predecessor to
article 1146 empowered the board of aldermen of such a town or village
to appoint policemen.    It should be noted there is no residence
requirement in chapter 11, Title 28 for the officers appointed under
article 1146.

     As long as the person appointed under article 1146 does not have
a "dual office holding" problem, see Attorney General Opinion V-70
(1947), and is properly certifiedby     the Law Enforcement Standards
Commission, he would be lawfully authorized to act as a peace officer.

                               SUMMARY

               Articles 998. 999, and 999a. V.T.C.S., do not
          apply to towns incorporated under chapter 11,
          Title   28,   unless   said   town   follows   the
          prerequisites of article 961. V.T.C.S. Chapter 11
          towns may utilize the provisions of article 1146
          to lawfully appoint the needed peace officers.

                                         w-t-&%&


                                          Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by W. Reed Lockhoof
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
W. Reed Lockhoof
Jim Moellinger




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