   The Attorney                 General of Texas
                     February         4,    1980




Honorable   Henry Wade                           Opinion No. ~w-137
Criminal District Attorney
6th Floor, Records Building                      Re: Overtime policies for peace
Dallas, Texas 75202                              officers  under  article  5167a,
                                                 V.T.C.S.

Dear Mr. Wade:

      You ask for an interpretation         of article 5167a, V.T.C.S., as amended by
the recent legislature:

               Except in cases of emergency, as determined by
            the sheriff or constable of such county, it shall be
            unlawful for any county having more than five
            hundred thousand (500,000) inhabitants according to
            the last preceding Federal Census to require any
            Peace Officer to work more hours during any
            calendar week than the number of hours in the normal
             work week of the majority of the employees of said
            county other than Peace Officers. If a Peace Officer
            elects to work extra hours during any calendar week,
            the county shall compensate      the officer for the
            overtime    work on a basis consistent      with the
            overtime provisions of the county personnel policy.

Acts 1979, 66th Leg., ch 531, at IRS.

       You first ask whether this statute is unconstitutional on the basis that
the emergency provision is vague and indefinite.       A vague statute violates
due process only when the required course of conduct is stated in terms so
vague that men of common intelligence        must guess at what is required
Texas Liquor Control Board v. Attic Club, Inc., 457 S.W.2d 41 (Tex. 1970).
Article 51674 V.T.C.S., does not impose a criminal penalty. Thus, it is not
subject to such an exacting standard .for vagueness as a criminal statute
would be. Barron v. Marusak, 359 S.W.2d 77 (Tex. Civ. App. - Austin 1962,
no writ). The Court of Criminal Appeals considered a similar statute, which
was attacked on the ground that the emergency provision was void for
uncertainty.    Bradford v. State, 160 S.W. 702 (Tex. Crim. App. 1915). It
upheld the statute, stating that such exceptions and emergencies           must




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Honorable Henry Wade     -   Page Two        (Mw-137)



necessarily be phrased in general terms, and that it would be unreasonable if the
legislature had to specify each emergency in order to enact a valid law. See also Attorney
General Opinion G-6050 (1944).

       You also suggest that the statute is uncertain because “peace officer” is not defined
In our opinion, “peace officer” within this statute covers only deputy sheriffs, deputy
constables, and any other peace officers subject to the control of the sheriff or constable.
The sheriff or constable is responsible for determining when an emergency exists that
requires peace officers to work overtime. It is therefore reasonable to conclude that the
statute covers only peace officers who take orders from the sheriff or constable and does
not include all those peace officers listed in section 2.12 of the Code of Criminal
Procedure as well as other statutes. & Attorney General Opinions H-1157 (1978); H-549
(1975).

       You next ask whether a deputy sheriff or deputy constable may be required by the
sheriff or constable to work more hours during a calendar week than the normal work
week of the majority of the county’s employees if an emergency has not been determined
by the sheriff or constable.    Article 2372h, V.T.C.S., provides in all counties having a
population of 500,000 or mope, the commissioners court has authority to establish the
hours of work for, employees including deputy sheriffs and deputy constables.        Article
5167a, V.T.C.S., clearly states that the county may not require the peace officers to work
longer than the stated time if no emergency has been determined         In our opinion, the
sheriff and constable in these counties exercise only the county’s power to require peace
officers to work extra hours during an emergency.    These officers do not have additional
authority to require overtime work in the absence of an emergency.

       You next ask whether a sheriff or constable may permit his deputies to work extra
hours if no emergency exists. The emergency exception only applies in cases where peace
officers are required to work overtime.  Where a peace officer elects to work overtime,
the constable or sheriff may permit him to do so, but he must be compensated for the
overtime work on a basis consistent with county personnel policy.

       You next ask whether the commissioners court may require peace officers to work
overtime in an emergency or non-emergency situation. It is clear that peace officers
CaMOt    be required to work overtime in a non-emergency situation. You have called to our
attention no statute which authorizes the commissioners court to direct the activities of
deputy sheriffs and constables in an emergency situation. See generally Attorney General
Opinion H-985 (1977) (powers and responsibilities of deputy sheriffs).

       You next ask whether article 5167a, V.T.C.S., requires the payment of overtime to
peace     officers absent a county personnel policy which provides for the payment of
Overtime.       If a peace officer elects to work extra hours during any calendar week, “the
County    shall compensate the officer for the overtime work on a basis consistent with the
overtime provision of the county personnel p~licy.~’ If the county personnel policy makes
II0 provision     for overtime pay, then the county need not pay overtime to peace officers
who voluntarily work extra hours.




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    Honorable Henry Wade     -   PageThree    (NW-1371



           Your next two questions ask whether the county must pay overtime to peace OffiCeI's
    if they are required to work extra houn in an emergency. In our opinion, the requirement
    that peace officers receive overtime compensation applies only where a peace officer
    elects to work extra hours pursuant to the last sentence of article 5167a, V.T.C.S. It does
    not apply when the peace officer is required to work overtime in an emergency.

           You ask whether the county personnel policy could provide for compensatory time
    off to peace officers and other employees in lieu of the payment of overtime.        If the
    overtime provisions of the county personnel policy provide for compensatory time for
    extra hours worked, we believe the county may use this method of compensating peace
    officers who elect to work extra hours.          We note that a rider to the General
    Appropriations Act refers to time off as “compensation” for overtime work. Acts 1979,
    66th Leg., art. V, S 2e. In our opinion, the use of the term “compensate” in article 5167a,
    V.T.C.S., was not intended to refer to monetary compensation alone.

           You finally ask whether the following policy would be in conflict with article 5167a,
    V.T.C.S.: The county personnel policy prohibits all overtime work by peace officers and
    other employees, but provides that sn elected official or department head may in unusual
    situations seek prior approval from the commissioners court to require employees to work
    more than forty hours a week. This policy would conflict with article 5167a, because it
    provides for required overtime work by peace officers under circumstances where cm
    emergency has not been declared by the sheriff or constable.

                                          SUMMARY

               Article 51674 V.T.C.S., provides that peace officers subject to the
               direction of the sheriff or constable may not be required to work
               overtime except in cases of emergency determined by the sheriff
               or constable. The sheriff or constable may permit his deputies to
               work extra hours if no emergency exists, but they must be
               compensated on a basis consistent with county personnel policy. If
               the county personnel policy &es not provide for overtime pay or
               provides compensatory time instead of money, then peace officers
               who elect to work overtime may be compensated according to it.
               Overtime pay need not be provided peace officers when they are
               required to work extra hours consistent with the provisions of
               article 5167a. V.T.C.S.




                                                 MARK’ WHITE
                                                 Attorney General of Texas
    JOHN W. FAINTER, JR.
    First Assistant Attorney General




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Honorable Henry Wade    -    Page Four        (NW-137)


TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Susan Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairmen
Jim Allison
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
Sue Lowe




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