      ‘. ’ .” ’




                                     The Attorney                 General          of Texas
                                                             December 29. 1983
JIM MATTOX
Attorney General


supwmacewl eullsl~                Hooorablc Ray Kell6r                                      Opinion    No.    34-102
P. 0. Box12545                    ctlairman
*uaun. TX 7871% 2545
                                  Committee on Lav Enforclmeut                              lb?:    Whether a coaatable    or
m?l47sE41
T.bx ews74.1j(l7
                                  Texas Eouse of Representatives                            sheriff   may appoint full-time
Tabulpbr 512J475am                P. 0. Box 2910                                            deputies    who receive no cow
                                  Austin. Texas   78769                                     pensation

714 J*ckwn. sun4 700
                                  Dear Repreeentatlve          Keller:
tblbh lx 752mA506
214n424044
                                           You have requeeted our opinion regarding                     the authority       of county
                                   ,sheriff6     and constable6          to appoint       deputy peace officers              who will
                                    receive no compensation.               It is our opinion          that etate lav does not
                                    require     lawfully        appointed       deputy peace         officers       to necessarily
                                    receive     any compensation.               However,      we believe         that     any person
                                    conmisaioncd as a peace officer                by a city or a county who will receive
1001Terar.sun. 700                  no compensation            muat nevertheless            perform       some legitimate            law
Hourton. lx.     77002-2111         enforcement        dutiee.       It is not a proper             purpose for a deputizing
7l2i222.5am                         authority      to designate        an individual       as a peace ,officer           vho will     do
                                    nothing      for     the     political       entity     facilitating         his     appointment.
                                    Purthermore, we do not believe                  that a person may be .deputired as a
                                    peace..officer       often trained,          educated and certified           soften at public
                                    expense solely to enable that person to secure private employment in 6
                                    (Iecurlty related         fi6ld.     See JM-57 (1983).           The Private        Investigator6
                                    and Private         Security       Agcie6         Act m6kea        an   exception        from its
4200 N. Tefafh. Sulb S
McAllm. TX. 7550%15afi              licensing     requirements for aa person who ha6 full-Mm6                       employment as a
512mB24547       :                  peace officer.”         :.V.T.CiS.     art. 4413(29bb). ‘)3(a)(3).              In this opinion
                                    we limit our inswer’to,the               simple question       of:whether       s peace officer
                                    mum rcceivc         compeoePtion.          We do :not sddre66 the una6ked questions
                                  ,:concerning        the legality        :oz liability         vhicb     mighty -ari66      from the
                                    practice-of       -permitting      p66ce officers        to UtiliZ6       public property and
                                    suthority     .in   the pursuit        of personal      snd private        gain     in connection
                                    with employmentin the private                 6ector.     .Cf.
                                                                                               -     V.T.C.S:      art.   4413(29bb),
 An Equ*l     ODporrunnp            C28(d).                                                ..              1)
 Afflrm.IlW    Acflon   Empfoyw

                                         A county may not be required    to pay ~deputy peace officers      in
                                   accordance with a binding     salary c’lassiflcation  schedule.   Article
                                   12699, V.X.C.S..  amended this ,year;Acts 1983. 68th Leg.,    ch. 433. at
                                   2632, requfres counties  of more than 75.000 population   to

                                                  6et   up  classifications            in    the Sheriff’6         . . .
                                                  [department.]    providing          for     dutieo under          such
Honorable   Kay Keller    - Page 2    (Jn-102)




            classificationa     and salary   for each classifica-
            tion;      and   thereafter    any    member   of    any
            Sheriff’s    . . . Department who lo called     upon to
            perform the duties under any such classification
            shall    be paid the salary    provided  therefore   for
            such period as he performs such duties.

Furthermore,  article     12699. as amended, provides      for a county wide
vote upon a petition    signed by 25% of the qualified       voters to require
that  the county pay certain        minimum salsrles    for each “rank.     pay
grade, or classification”     within the sheriff’s   office.

      Article    2372h-8. V.T.C.S.,    now applicable      to counties   of more
than l.SOO.000 population permits the establishment           of a civil service
system within      the sheriff’s    department   follovlng     a favorable   vote
among the department’s employees.        See Acts 1983, 68th Leg., ch. 570.
at 3410.     The civil  service commlesl~may      adopt rules and regulations
relating   to the classification    of and benefits    paid to deputy sheriffs
and other      department employeee.       The statute      does not apply      to
constables.      See also V.T.C.S.     art.   2372h-4.     (comprehensive   civil
service system in counties of 200,000).

       The Fire and Police          Employee Relations        Act. article   SlS4c-1.
V.T.C.S.,     permits collective       bargaining’ to determine the wages to be
paid In the sheriff’6         office.     Hovever , the statute applies       only to
“full-time      paid employee[s].”       Id. 13(2).     Deputies who are paid are
required to be compensated on abasls              substantially    comparable to the
private    sector.    Id. 14. A county wide election            is required to adopt
the provisions       0Grticle        SlS4c-1.     Id.  15(c).     See Commissioners’
Court.., of _,..El Paso County v.          El Pax      County Sheriff’s      Deputies
Association;      620 S.W.2d 900 (Tex. Civ. App. - El Paso 1981, writ ref’d
n.r.e.).

        Each position of deputy sheriff      or constable,     whether compensated
or     not,   Oust first      be .approved     by    the    co+ssioners’        court.
:Nevertheless , .the,.sherlff     or constable     is authorized      to cnlfst      the
 assistance    of .citizens    for   the supression       of civil      disturbances.
 V.T.C.S.    art. 6886 (authority      of constable      to call     citizen    to his
 aid);   Code Crlm. Proc. arts.     6.05. 6.06, 8.01. 8.05.          Article   8.09 of
 the Code of Criminal Procedure provides that such “special                constables”
 have the authority of peace officers.          See Gonzales v. State. 110 S.U.
 740 (Tex.     Grim. App. 1908).       Article~69.         V.T.C.S..     specifically
 provides for the appointment of deputy sheriffs:

             Sheriffs  shall  have the power.     by writing.  to
             appoint one or more deputies  for their respective
             counties.   to  continue  in   office   during   the
             pleasure of the sheriff.  who shall have power and
                                                                                           -\
             authority  to perform all  the acts and duties of




                                       p. 429
Honorable   Ray Keller         - Page 3   (~14-102)




            their   principals;     and every person so appointed
            shall,   before    he enters upon the duties   of his
            office,     take    and   subscribe  to  th6 official
            oath   .   .   .   .

See also V.T.C.S. arts.  6869s (repeated    twice in the Civil    Statutes),
6869b. 6869c. 6869e-1. 6869f.   The sheriff    is respoosiblc  for the acts
of hi6 deputie6.     V.T.C.S.  art.   6870.      Article  68796, V.T.C.S..
provide6 for the appointment of deputy constables:

            The duly     elected   Constablc  in    each Justice
            Precinct  may appoint Deputiee in accordance with
            the provisions   of Section 2 of this Act. 6nd each
            and every instance    said Deputy Constables   shall
            qualify  as required of Deputy Sheriffs.

Section     2   of  the   statute  provides    for    the   constable             to make
application      to the commissioners'     court   for    the approval              of the
appointment     of deputies in his office:

             said      Constable      shall       first      make      written
             application      to the Comaissioners'            Court of his
             County shoving        that    it   is    necessary     for    such
             Constable to have the Deputy or Deputies requested
             in order to properly         handle the business           of his
             office    originating    in the Precinct          in which such
             Constablc ha6 been elected giving the name of each
             proposed      appointee;     and if        the Commissioners'
             Court shall     find that the Constable Is in need of
             a Deputy or Deputies             requested      to handle      the
             businees originating        In his Precinct,        then and in
             that : event.       and    in     that      event    -1y.      the
            .Commlssioners' Court shall approve and confirm the
             :piinnent       of the Deputy or Deputies provided by
                        .

The statute ;a160 impoees a fine     of  not more than $1,000 on any
constable  or deputy~vhere the appointment is made without the consent
and approval   of the cmissioners'    court.   V.T.C.S.  art. 6879a. 13.
The con6table.   like the sheriff, is responsible    for the acts of his
deputiee.   V.T.C.S.  art. 6879b.

       Reserve deputy eheriffs     snd constables   may be appointed pursuant
to articles 6869.1. V.T.C.S.        The coa4ssioner6'    court is entitled    by
the statute     to limit the number of such resewe       peace officers.     Id.
Cl(b).    The c~isaioneru'      court may. but is not required.      to prov=
compensation and reimbursement of expenses incurred by reserve peace
officers.     Id. II(d);   see Attorney Cenersl Opinion M-1026 (1971) (the
lau es originally     enactedprovided    that the county was prohibited     from
. .   I




          Honorable   Ray Keller    - Page 4     (.j&lD2)




          compensating   reserve    peace officerrr).       Acte   1971, 62nd Leg.,        ch.   506,
          Ii(d).

                 In Attorney General Opinion H-1002 (1977) it va6 concluded that a
          sheriff   lacked authority   to appoint uncertified     "special   deputlee"   to
          patrol   an annual county celebration.       Similarly,   in Attorney General
          Opinion V-1050 (1950).     it was concluded that sheriffs        and constables
          did not have th6 authority        to issue    "sp6clal   cessions"       without
          obtaining commissioners'     court authoritation'under     article  3902.

                Deputy peace officers     must meet the standards  promulgated by the
          Mssion       on Law Enforcement Standard6 and Education.      V.T.C.S.  art.
          4413(29aa).    This statute    requires  testing and training  for physical
          and mental fitness.     l4inimun standards for legal education and weapons
          training  are required.     This law does not require peace officers   to bc
          paid.

                Article   3902. V.T.C.S..   is the general statute providing    for the
          appointment of ssslstants     and deputies for county officisls.     See also
          V.T.C.S    art.  3912k.   Although the portion6    of article    3902, vhlch
          limit the coarpensation of deputies in counties of certain population.
          are either unconstitutional     as special  laws or impliedly repealed.   its
          lntroductorg    paragraph provides in pertinent   part a6 follow:

                      Whenever any district.        county, or precinct officer
                      shall     require       the      services        of     deputies,
                      assistants.     or clerks      in the performance of his
                      duties,      he     ahall       apply       to      the    County
                      Caamissioners'      Court of his county for authority
                      to appoint     such deputies,         assistants      or clerks.
                      6tating    by worn      application       the number needed.
                      the position      to be filled.        and the amount to be
                      paid . . . .       said    court     shall     mak6 its     order
                      authorizing      the appointment          of    such deputies,
                      assistants,    and clerks end fix the compensation to
                      be paid them . . . .            provided     that in no case
                      shall    the tiissioners'             Court or        any .member
                      thereof    atteppt'to      influence      the appointmnt        of
                      any person as deputy, assistant               or clerk in any
                      office.     Upon the entry of such order th6 officers
                      applying    for such essi6tants.           deputies     or clerks
                      shall be authorized to appoint them.

          See Renfro v. Shropshire,    366 S.W.2d 688 (Tex. Civ. App. - Rastlsnd
          1978, writ ref'd   0.r.e.).  Article 3912k authorizes   the coaualssioners'
          court to fix the compensation and expenaes of county officials           and
          employees.    This   statute does not prohibit     county employees from
          serving vlthout compensstion.




                                               p. 431
Honorable   Ray Keller   - Page 5     (313-102)




                                    SUMMARY

               Conatables   and sheriffs   are   authorized                to
            appoint deputies to eerve without   compensation               in
            positions approved by the commissionera’   court.




                                                    Attorney   General   of Texas

TOM GREEN
First Assistant    Attorney   General

DAVID R. RICHARDS
Executive Assistant      Attorney   General

Prepared by David Brooks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpfn.   Chairman
Jon Bible
David Brooks     .
Colin Carl
SuEan Garrison
Jim Woellinger
Nancy Sutton




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