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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