                                                  KEN PAXTON
                                             ATTORNEY GENERAL OF TEXAS




                                                     May 16, 2018



The Honorable Luis V. Saenz                                      Opinion No. KP-0201
Cameron County District Attorney
964 East Haffison Street, Fourth Floor                           Re: Authority of a Justice of the Peace to
Brownsville, Texas 78520                                         hire and supervise a bailiff-and-warrant
                                                                 officer (RQ-0197-KP)

Dear Mr. Saenz:

        You state that the Cameron County Commissioners Court authorized two county justices
of the peace to each employ a "bailiff/warrant officer," one for Precinct 5, Place 2 and one for
Precinct 5, Place 3. 1 Atthe direction of the commissioners court, you tell us each justice entered
into an Interdepartmental Memorandum of Understanding ("Memorandum") with the constable
for Precinct 3, listing the bailiff/waffant officer's functions and qual~fications., and providing for
the officer's supervision. Request Letter at 1-2. 2 The Memorandum with each justice refers to
the position as a "waffant officer" or "warrant bailiff," and provides that the justice will appoint
and supervise the warrant bailiff who serves the justice's court. Memorandum at 1. The
Memorandum provides that the waffant bailiff will ( 1) perform courtroom and related functions in
aid of the justice, and (2) serve waffants, subpoenas, garnishment, and other process issuing from
the court that are typically served by peace officers. The Memorandum provides that the constable
for Precinct 3 will ''sponsor the commission of each warrant officer's [Texas Commission on La"'.
Enforcement ("TCOLE")] certification/license as an accommodation to the judge," provide the
waffant bailiff with public safety and law enforcement training, and authorize the warrant bailiffs
to carry handguns and. other weapons and equipment "in keeping with reasonable and accepted
standards for courtroom duties." Id. Finally, the Memorandum requires the constable for Precinct
3 to supervise and control the warrant bailiff when performing law enforcement duties. Id.

        You first ask whether a commissioners court may "authorize a Justice of the Peace to hire
and directly supervise a bailiff/warrant officer." Request Letter at 1. The statutes do not designate
any county or precinct employee's titie as "warrant officer," "warrant bailiff," or any similar term. 3

          1
           See Letter from Honorable Luis V. Saenz, Cameron Cty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y
 Gen. at 1 (Dec. 4, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinions-rqs ("Request
 Letter").
          2
           See Interdepartmental Memorandum of Understanding between Justice of the Peace, Precinct 5, Place 2
 and Constable, Precinct 3, and Interdepartmental Memorandum of Understanding between Justice. of the Peace,
 Precinct 5, Place 3 and Constable, Precinct 3 (attached to Re,quest Letter). The memoranda contain identical terms.
          3
           The statutes refer to a "warrant officer" in three different senses, none specifically in the context of a county
 or precinct employee. First, a warrant officer may be a person holding a particular rank in the Texas National Guard.
The Honorable Luis V. Saenz - Page 2                  (KP-0201)



Chapter 53 of the Government Code governs the appointment of bailiffs, but only those who serve
specific district and county courts. See generally TEX. Gov'T CODE§§ 53.001-.128. 4 A justice
of the peace may designate a clerk, whose duties may include administering oaths and affidavits,
maintaining the central docket and judgment index, and "perform[ing] the other duties required by
law and assist the judge in handling matters before the court." Id. § 27.056. 5 However, no statute
specifically addresses the authority of a justice of the peace to appoint a bailiff by that title.

        Nevertheless, a precinct officer such as a justice of the peace "who requires the services of
deputies, assistants, or clerks in the performance of the officer's duties" may apply to the
commissioners court for authority to appoint the employees. TEX. Loe. Gov'T CODE § 151.001 (a).
In counties with a population of more than 190,000, such as Cameron County, the precinct officer
may seek authority "to appoint any other kinds of employees." 6 Id. A commissioners court
receiving such an application may authorize the appointment of the requested employees. Id.
§ 151.002. Accordingly, these statutes authorize a justice court to appoint and supervise an
employee to perform the traditional duties of a court bailiff, although any of the duties that require
additional qualifications, such as duties performed as a peace officer, may be subject to other law.
Id. §§ 151.001, .002.

        You ask secondly whether a justice court employee is eligible to be commissioned as a
Texas peace officer. Request Letter at 1. To be a peace officer in Texas, a person "must be both
licensed by [TCOLE] and be utilized in a capacity that is designated by Texas statute." Cleveland
v. City ofElmendorf, 388 F.3d 522,529 (5th Cir. 2004) (citing TEX. CODE CRIM. PROC. art. 2.12).
Article 2.12 of the Code of Criminal Procedure defines "peace officer" as the persons elected,
appointed, or commissioned to the positions listed in that statute. TEX. CODE CRIM. PROC. art.
2.12; see also TEX. 0cc. CODE§ 1701.001(4) (defining "peace officer"). Employees ofajustice
court are not listed among the persons defined as peace officers in article 2.12 and therefore are
not peace officers by virtue of that employment. However, the statute does not prevent those
employees from qualifying as a peace officer in some other capacity recognized by the statute.

       Third, you ask whether a constable in one precinct may "carry the commission" of an
employee of a justice court in a different precinct. Request Letter at 1. A constable does not
possess ad hoc authority to commission a person as a peace officer for positions not defined as a
peace officer position under article 2.12 or other law. TEX. CODE CRIM. PROC. art. 2.12(2); see

See TEX. GOV'T CODE § 432.001(14). Second, warrant officers are listed as security personnel in the statute
governing certain court security funds, although the statute does not otherwise define the term. See TEX. CODE CRIM.
PROC. art. 102.017(d-1)(14). Finally, chapter 30 of the Government Code authorizes certain municipal courts of
record to employ warrant officers but does not define the term. See TEX. Gov'T CODE § 30.00009(b). This office
determined that a similar statute authorized a municipality to give a peace officer the title of warrant officer, and
further, the officer's duties could include serving process and other papers and acting as a bailiff of municipal court.
Tex. Att'y Gen. Op. No. JM-1222 (1990) at 2-3.                                    ·
         4 The judge of specified courts may request the sheriff to deputize the court's bailiff. TEX. Gov'T CODE

 § 53.007(a), (b). Some specified bailiffs are statutorily designated as peace officers. See id.§ 53.0071.
          5The Local Government Code also authorizes a commissioners court to provide for "secretarial personnel"

 for a precinct officer such as a justice of the peace. TEX. Loe. Gov'r CODE§ 151.901.
         6The 20 IO decennial census lists the population of Cameron County as 406,220. See U.S. CENSUS BUREAU,

 U.S. DEP'T OF COMMERCE, 20 IO Census of Population: Texas Quickfacts, http://www.quickfacts.census.gov.
The Honorable Luis V. Saenz - Page 3          (KP-0201)



also TEX. 0cc. CODE§§ 1701.001(4) (defining "peace officer" as "a person elected, employed, or
appointed as a peace officer under Article 2.12 ... or other law"), 1701.303(a) (requiring the "law
enforcement agency or governmental entity that hires a person for whom a license is sought" to
file the application with TCOLE). A constable possesses the authority to employ a deputy
constable, who may qualify as a peace officer. See TEX. Loe. Gov'T CODE § 86.0ll(a); TEX.
CODE CRIM. PROC. art. 2.12(2). A constable seeking to employ a deputy constable, however, must
"show that it is necessary to appoint a deputy in order to properly handle the business of the
constable's office that originates in the constable's precinct." TEX. Loe. Gov'TCODE § 86.01 l(a).
A commissioners court may approve the appointment of a deputy constable "only if the
commissioners court determines that the constable needs a deputy to handle the business
originating in the precinct." Id. While no opinion addresses the question, a court is likely to
conclude that a constable in one precinct does not possess the authority to employ, appoint, and
commission a deputy to primarily perform duties for a justice court located in a different precinct.
We do not address your remaining question, which you conditioned on an affirmative answer to
your second and third questions.
The Honorable Luis V. Saenz - Page 4         (KP-0201)



                                      SUMMARY

                      Sections 151.001 and 151.002 of the Local Government
              Code authorize a justice court to appoint and supervise an employee
              to perform the traditional duties of a court bailiff for the court,
              although any duties that require additional qualifications, such as
              duties performed as a peace officer, may be subject to other law.

                      Employees of a justice court are not peace officers by virtue
              of that employment, although the statute does not prevent those
              employees from qualifying as a peace officer in some other capacity
              recognized by article 2.12 of the Code of Criminal Procedure.

                     A court is likely to conclude that a constable in one precinct
              does not possess the authority to employ, appoint, and commission
              a deputy to primarily perform peace officer duties for a justice court
              located in a different precinct.

                                             Very truly yours,




                                             KEN PAXTON
                                             Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee
