                                     August 11, 1987
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              Honorable Carlos Valdez           Opinion No. ~~-766
              Nueces County Attorney
              901 Leopard, Room 206             Re: Constitutionality of section 2
              Corpus Christi, Texas 78401       of article 6869.1, V.T.C.S., which
                                                exempts a county from liability for
                                                job-related injuries incurred by a
                                                reserve officer

              Dear Mr. Valdez:

                   Yoy question the constitutionality of section 2 of article
              6869.1,   V.T.C.S.. under article I, section 13, of rhe Texas
              Constitution. You also refer to "amendment XIV" and to a "section
              1983 action." Consequently, this opinion assumes that you refer to
              the Fourteenth Amendment of the United States Constitution. See
              $2 U.S.C. 91983 (civil rights action for deprivation of federa-
P,            protected rights).

                   Article 6869.1 authorizes county commissioners courts to
              authorize county sheriffs or constables to appoint reserve deputy
              sheriffs or constables, respectively. -See §l(a). These reserve
              officers serve at the discretion of the sheriff or constable -- when
              the sheriff or constable considers it necessary to have additional
              officers to preserve the peace and enforce the law. See art. 6869.1,
              §l(c). The county commissioners court may compensatereserve deputy
              sheriffs and constables. See art. 6869.1, 51(d). Section l(f)
              provides that reserve officers, while actively engaged in their
              assigned duties, "shall be vested with the same rights, privileges,
              obligations and duties of any other peace officer of the State of
              Texas." Section 2 of article 6869.1, however, the section about which
              you inquire, provides:

                        The county and/or the sheriff or constable shall
                        not incur any liability by reason of the appoint-
                        ment of any such reserve deputy sheriff or deputy
     .



                   1. Article 6869.1, V.T.C.S.. has been repealed, effective
              September 1, 1987, and replaced with section 85.004 of the Local
              Government Code. See Acts 1987. 70th Leg., ch. 149, §61. 49. The
              substance of section2 of article 6869.1 has been retained as sub-
              section (g) of section 85.004.


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Ronorable Carlos Valdes - Page 2   (JM-766)




          constable who incurs any personal injury while
          serving in such capacity.

In Attorney General Opinion M-990 (1971). the attorney general
determined that the county and the sheriff or constable are not liable
for any injury to the person or property of a reserve officer incurred
in the performance of the officer's duties and that the county need
not include reserve officers in its workers' compensation plan.

     The basis for your constitutional claims is not entirely clear.
Article I, section 13. of the Texas Constitution contains a "due
course of law" requirement. See also Tex. Const. art. I, E19.
Section 13 prohibits legislative bodies from arbitrarily withdrawing
all legal remedies from a person with a well-established common-law
cause of action. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983). A
statute that unreasonably abridges a justiciable right to obtain
redress for injuries is void under section 13 as a denial of due
process. 648 S.W.2d at 665. The "right" to recover for personal
injuries from a governmental body, however, is not a well-established
common-law right. The doctrine of sovereign immunity bars actions
against counties for the acts of its agents except in the circum-
stances specified in the Texas Tort Claims Act. Tex. Civ. Prac. &
Rem. Code 8101.001; Vela v. Cameron County, 703 S.W.2d 721, 724 (Tex.
APP. - Corpus Christ1 1985, writ ref'd n.r.e.1; Attorney General         ?
Opinion JR-748 (1987) (and cases cited therein).

     The "right" of government employees to recover from the sovereign
for injuries incurred in the course of the employee's duties is
governed by the workers' compensation statutes. See V.T.C.S. art.
8309h; cf. City of Gatesville v. Truelove, 546 S.W‘?d 79 (Tex. Civ.
APP. -so     1976, no writ) (city employee may recover against city
under Tort Claims Act for actions of another city employee when
city has no workers' compensation plan). Article III, section 60,
expressly authorizes the legislature to authorize counties to provide
workers' compensation for its employees. Article 8309h provides that
all political subdivisions shall extend workers' compensation benefits
to their employees. See Attorney General Opinion H-338 (1974). As
originally enacted, article
                      -     8309h did not include volunteer policemen
or policemen paid only on a "piecework" basis. See &      The legisla-
ture amended section l(2) of article 8309h to provide that a political
subdivision 3    include volunteer policemen in its workers' com-
pensation program.' -See Acts 1981, 67th Leg., ch. 569, §l. at 2312.




     2. This opinion does not address the interaction of section l(2)
of article 8309h. V.T.C.S., which appears to authorize workers'
compensation for reserve police officers, with section 2 of article      ?
6869.1, which disclaims liability for reserve officers' injuries.



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Honorable Carlos Valdez - Page 3   (~~-766)




Consequently, there does not exist an established cause of action
under these provisions that is subject to being taken away without
"due course of law." See Gotcher v. State, 106 S.W.2d 1104 (Tex. Civ.
APP. - Austin 1937, noyit).

     You also mention the Fourteenth Amendment to the United States
Constitution. -You do not indicate which clause or aspect of this
provision is Implicated by article 6869.1. The due process clause of
the Fourteenth Amendment prohibits state action that deprives "any
person of life, liberty, or property, without due process of law."
U.S. Const. amend. 14, $1. This constitutional restraint limits state
power to terminate certain rights and entitlements affecting property
and liberty interests without providing notice and a hearing. See
Bishop v. Wood, 426 U.S. 341 (1976); Goldberg v. Kelly, 397 U.S. 254
(1970). As indicated, by virtue of the doctrine of sovereign immunity
and the terms of article 6869.1, reserve officers have not had a right
to recover for injuries sustained during the performance of their
official duties. A right to recover in tort against the state for
personal injuries exists only when the state consents to suit.

     The equal protection clause of the Fourteenth Amendment prohibits
the discriminatory treatment of similarly situated persons. In Texas
Board of Private Investigators and Private Security Agencies v. Bexar
County Sheriff's Reserve, 589 S.W.2d 135 (Tex. Civ. App. - San Antonio
1979, no writ), reserve officers challenged the constitutionality of a
statute that exempted regular peace officers but not reserve officers
from the requirements of obtaining a security officer commission
before carrying a handgun while employed as a private security
officer.   The parties agreed that the appropriate test of the
constitutionality of the statute is the "rational basis test." 589
S.W.2d at 136. The court found chat there exist major distinctions of
training, supervision, and experience between regular and reserve
peace officers that provide a rational basis for the different
statutory requirement. 589 S.W.2d at 137. Similar considerations
apply to the case at hand. The differences between regular and
reserve peace officers could rationally support the legislative
decision CO exclude reserve peace officers from the workers' compensa-
tion statutes.

     You note that under article 6870,' V.T.C.S., the county and the
sheriff or constable are expressly made liable for injuries inflicted
by reserve officers in the same manner and to the same extent that




     3. Article 6870, V.T.C.S., has been repealed, effective
September 1, 1987, and replaced with subsection (d) of section 85.003
of the Local Government Code. -
                              See Acts 1987, 70th Leg., ch. 149, 051,
49.



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Honorable Carlos Valdez - Page 4 (JM-766)




they are liable for injuries inflicted by regular officers. See
Attorney General Opinion M-990. It is not clear what you meanby
mentioning this provision. The fact that sheriffs or constables are
liable for injuries inflicted & reserve officers to the same extent
as they are liable for injuries inflicted by regular officers does not
mean that the sheriff or constable must have the same liability for
injuries inflicted 0" reserve officers as they have for injuries
inflicted on regular officers. Liability for the actions of the
agents and employees of a governmental body is a different question
than the question of the liability of a government body to its agents
and employees for injuries incurred in the performance of their
duties.

                              SUMMARY

               Section 2 of article 6869.1, V.T.C.S., does
          not violate the "due course of law" provision of
          article I, section 13, of the Texas Constitution.
          Nor does section 2 of article 6869.1 violate
          either the due process or equal protection clause
          of the Fourteenth Amendment to the United States




                                        s h
          Constitution.

                                          Very   ruly yours


                                                 k
                                          JIM     MATTOX
                                          Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILFIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




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