                      The Attorney              General of Texas
                                         December     15,     1978
JOHN L. HILL
Attorney General

                   Honorable Fred Toler                            Opinion No. H- 12 8 6
                   Executive Director
                   Texas Commission on Law Enforcement             Re: Whether        citizens  sum-
                     Officer Standards & Education                 moned as special police force are
                   1106 Clayton Lane, Ste. 220-E                   subject    to   requirements   of
                   Twin Towers Office Building                     article 4413(29aal.
                   Austin, Texas 78723

                   Dear Mr. Toler:

                          You ask whether citizens summoned into service as a special police
                   force by a mayor pursuant to article 995, V.T.C.S., are subject to the
                   requirements of article 4413(29aa), V.T.C.S., a statute relating to minimum
                   physical, mental, moral and educational      standards for law enforcement
                   officers. Article 995, enacted more than one hundred years ago, provides:

                                 Whenever the mayor deems it necessary, in order to
                              enforce the laws of the city, or to avert danger, or to
                              protect life or property, in case of riot or any outbreak
                              or calamity or public disturbance, or when he has
                              reason to fear any serious violation of law or order, or
                              anv outbreak or anv other danaer to said city, or the
                              inhabitants thereof, he shall summon into se&ice as a
                              yecial police force, all or as many of the citizens as
                              in his judgment may be necessary. Such summons may
                              be bv proclamation or other order addressed to the
                              citiz&    generally, or those of any ward of the city, or
                              subdivision thereof, or may be by personal notification.
                              Such special police force while in service, shall be
                              subject to the orders of the mayor, shall perform such
                              duties as he may require, and shall have the same
                              power while on duty as the regular police force of said
                              city.

                   (Emphasis added). Acts 1875, 14th Leg., 2d Session, ch. C, at 119.
                          If such persons must meet article 4413(29aa) requirements, then others
                   similarly situated must meet them, too. Article 995 applies only to general




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        Honorable Fred Toler    -   Page 2        (~-1286)



        law cities, but some home rule cities have included similar provisions in their
        charters.  Attorney General Opinion M-246 (1968). Moreover, article 2.14, Code of
        Criminal Procedure, provides that police officers meeting resistance may also
        “summon a sufficient number of citizens to overcome the resistance.”     All persons
        summoned by the officer are bound to obey, and if they do not obey are required to
        be reported to the appropriate prosecuting attorney.   Code Crim. Proc. arts. 2.15,
        2.14. Before the new Penal Code was adopted in 1973, a failure or refusal to aid a
        magistrate or officer in the performance of his duty (e.g., a refusal to respond to
        an article 995 summons) when he was lawfully required to do so was made subject
        to a one hundred dollar fine by former Penal Code article 348.

              Article 4413(29aa!, V.T.C.S., creates the Commission on Law Enforcement
        Officer Standards and Education and empowers it, among other things, to certify
        persons as being qualified to be “peace officers” designated by article 2.12, Code of
        Criminal Procedure. According to this legislative act, unless persons appointed as
        peace officers within the meaning of the Act have been so certified, they commit a
        crime by accepting the appointment. V.T.C.S. art. 4413(29aa), SS 2(c), 2(h), 6(b),
        6(c), 6(e). This statute was enacted in 1965 while former Penal Code article 348
        was still in force.

               Thus, the Legislature placed the citizens of this state in a legal dilemma in
        1965 if, when it enacted the law creating the Commission it intended that article
        4413f29aa) apply to citizens summoned as a special police force by a mayor, or
        summoned by a police officer to aid him. As the law would stand in that event,
        citizens who failed for any reason to obey such an order could have been guilty
        before 1973 of a crime under former Penal Code section 348; however, if they
        obeyed without first being certified by the Commission, they could have been guilty
        of a different crime under article 4413(29aa). We do not believe such was the
        legislative intent. -See Polke v. State, 118S.W.2d 793 (Tex. Crim. App. 1938).

              Statutes that deal with the same general subject are considered in pari
        materia and are to be read together, harmonizing conflicts if possible.
        Houston Ind. School Dist., 29 S.W.2d 312 (Tex. 1930). The intended thrust o7-Yartlc e
        4413(29aa) is revealed by section 2(b) thereof which authorizes the Commission to

                   Establish minimum educational, training, physical, mental
                   and moral standards for admission to em lo ment as a peace
                   officer: (1) in permanent positions,--f-f-
                                                          and 2 in temporary or
                   probationary status.

        (Emphasis added). The authority to certify persons as being “qualified under the
        provisions of this Act” to be peace officers is given immediately afterward in
        section 2(c). We think these provisions reach only persons seeking employment as
        peace officers, and not citizens involuntarily pressed into service as keepers of the
        peace. See Code Crim. Proc. arts. 6.05 (citizens called to aid peace officer!, 8.01,
        8.05 (of?&rs may call for aid). -Cf Code Crim. Proc. arts. 8.08, 8.09 (special




                                             P.     5076
Honorable Fred Toler       -   Page 3 (H-128 6 )



constables),    art. 45.20 (execution         of justice’s   warrant);   V.T.C.S.   art.   998
(appointment    of regular police officer).

      This conclusion is suggested by an analysis of section 2A of article 4413(29aa),
added to the statute in 1971. That provision authoriies and requires the Commission
to establish minimum standards for reserve law enforcement officers, distinguish-
ing between reservists       and regularly employed policemen         [(including those
employed in temporary positions or on probationary status); see Attorney General
Opinions M-282 (1968); WW-997 (196l)l. The statutory authorit-        establish a police
reserve force is article 998a, V.T.C.S., also enacted in 1971. It contained from the
first a grandfather    clause allowing persons previously serving as reserve law
enforcement officers to serve as reservists until January 1, 1973, without fulfilling
the minimum standards established by the Commission on Law Enforcement Officer
Standards and Education.       Acts 1971, 62nd Leg., ch. 829, 5 6, at 2532. It was
apparently the understanding of the Legislature in 1971 that persons not regularly
employed as policemen, even though serving as reserve law enforcement officers,
were not subject to the provisions of article 4413(29aa) prior to its amendment.

       This legislative construction is in accord with the apparent thrust of the
statute,   which is to upgrade the responsible effectiveness          of regular law
enforcement personnel by encouraging the development of high standards capable
of practical local implementation.      We do not believe the Legislature intended by
the enactment of article 4413(29aa) to prevent officers from calling upon citizens
for aid when the need arises, or to require citizens to decide at their peril whether
answering the call would be lawful. Cf. Penal Code 5 9.51 (justification for use of
force). See Weatherford v. State, 21.W. 251 (Tex. Crim. App. 1893) (citizens
summoneflo      aid officers do not act at their own peril). See also Presle v. Ft.
Worth & D.C. Ry. Co., 145 S.W. 669 (Tex. Civ. App. - Amarillo -1912, no writ
{public policy protects one involuntarily aiding officer).

       Article 4413(29aa) does not expressly refer to article 995 or the power of an
officer to summon citizens to his aid, but it does contain the following language in
section 8:

               Except as expressly provided in this Act, nothing herein
               contained shall be deemed to limit the powers, rights, duties
               and responsibilities of municipal or county governments. . . .

The Commission has interpreted this language as excepting from its jurisdiction
those citizens summoned into service by a mayor under the powers vested in such
officers by article 995, V.T.C.S. Cf. Code Crim. Proc. arts.2.10, 2.09 (magistrates).
 Your administrative  interpretationof   more than a dozen years standing has not
been repudiated by the Legislature, and it is particularly  significant in the light of
the legislative treatment     accorded police reservists in 1971. Cf. V.T.C.S. art.
 998afh). We believe the courts of this state would hold that personsummoned       by a
mayor to constitute a special police force pursuant to article 995 are not subject to




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Honorable Fred Toler      -   Page 4    (H-12 86 1



the requirements of article 4413(29aa) unless they subsequently become voluntarily
employed as peace officers.      Compare Whatle v. State, 8 S.W.2,d      174 (Tex.
                                                                  W.2,d 174  (Tex. Grim:
                                                                                     Crim.
App. 1928); Gonzales v. State,
                         State,-740
                                 110 S.W. 740
                                          -   (Tex.
                                               Tex. Grim.
                                                    Crim’ :~~~p~i908);
                                                            App. 1908);  Uhr  v. Lambert,
188 S.W. 946 (Tex. Civ. App. - San Antonio 1916, no writh     writ); Attorney General
Opinions H-1002 (1977); M-767 (1971); M-246 (1968); G-5621 (1946). While       citizens so
                                                                        While citizens   so
summoned may be peace officers for other purposes, they                are   not   persons
                                                                  ‘--J ;re not persons
“appointed as peace officers” within the meaning of article 4413(29aa).
                                                                  13(29aa).
                                     SUMMARY
            Persons summoned by a mayor to constitute a special police
            force pursuant to article 995, V.T.C.S., are not subject to
            the requirements  of article 4413(29aa) unless they sub-
            sequently become voluntarily employed as peace officers.




                                                        General of Texas
APPROVED:




DAVID M. KENDALL, First Assistant




C. ROBERT HEATH, Chairman
Opinion Committee

jsn




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