                      November 20, 1972

Honorable W. T. McDonald, Jr.       Opinion No.   M-1267
County Attorney
Brazes County Courthouse            RFi: The effect of Articles
Bryan, Texas    77801                    6869.1 and 4413(29aa)
                                         6 2A, Vernon's Civil
                                         Statutes upon Article
                                         484 of the Texas Penal
                                         Code, and the duration
                                         of reserve deputy con-
Dear Mr. McDonald:                       stable appointments.
     You have requested the opinion of this office in regard to
the two questions as follows:
             "The question presented,is whether the
          enactment of Article 6869.1 and Article 4413
          (29ai), Sec. 2A(a); by the 62nd Legislature
          repealed Article 484, Vernon's Texas Penal
          Code, or did the legislature intend for the
          old statute (Articles484) to remain in opera-
          tion, and therefore require a deputy constable
          to comply withboth Article 6869.1 and Article
          484, in order to carry a weapon and act as a
          peace officer.
             The second question presented is for what
          period of time does the authority by the Commis-
          sioner's Court extend, ie: (1) annually, (2)
          during the term of office of the constable, or
          (3) until the Commissioner'sCourt rescinds
          their authority (assuming the Court does have
          the authority to rescind)?'
     Article 6869.1 reads as follows:
             "Section 1. (a) The Commissioners Court
          of any county in the State may.authorize the




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         sheriff of the county to appoint reserve
         deputy sheriffs, or any constable of the
         county to appoint reserve deputy constables,
         who shall be subject to serve as peace offi-
         cers during the actual discharge of their
         official duties upon call of the sheriff,
         in the case of deputy sheriffs, or of the
         constable, in the case of deputy constables.

             (b) The Commissioners Court may limit
          the number of reserve deputy sheriffs or
          reserve deputy constables who,may be appointed.

             (c) Such reserve deputy sheriffs shall
          serve at the discretion of the sheriff and may
          be called into service at any time the sheriff
          considers it necessary to have additional offi-
          cers to preserve the peace and enforce the law;
          and such reserve deputy constables shall serve
          at the discretion of the constable and may be
          called into service at any time the constable
          considers it necessary to have additional offi-
          cers to preserve the peace and enforce the law.

             (d) Such reserve deputy sheriffs and deputy
          constables shall serve without Pay but the
          Commissioners Court may provide compensation
          for the purchase of uniforms and/or equipment
          used by.such individuals.
             (e) Such reserve deputy sheriffs and deputy
          constables, prior to their entry upon duty and
          simultaneously with their appointments, shall
          file an oath and bond in the amount of Two Thou-
          sand Dollars ($2,000), payable to the sheriff,
          in the case of reserve deputy sheriffs, and
          payable to the constable, in the case of reserve
          deputy constables, and filed with the county
          clerk of the county in which.said appointment
          is made.
             (f) Such reserve deputy sheriffs, while on
          active duty at the call of the sheriff and while
          actively engaged in their assigned duties; and
          reserve deputy constables, while on active duty
          at the call of the constable.and while actively


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Honorable W/T.      &lcDonald,Jr.;page ‘3   (M-1267)

         engaged intheir ~assigned.duties,shall,be vested
         with the same rights, privileges, obligations
         and duties of any other peace officer of the
         State.of Texas.
             Sec. 2. The county and/or the sheriff or
          constable shall notincur any liability by
          reason of the appointment of any such reserve
          deputy sheriff or deputy constable who-incurs
          any personal injury while serving in such
          capacity.*
     Section   2A   of Article 4413 (29aa) reads as follows:

             (a) The Commission on Law,Enforcement
          Officer Standards and Education shall estab-
          lish'minimum training standards for all reserve
          law'enforcement officers wh&ch.must be fulfilled
          before a person,appointed as a reserve law en-
          forcement officer may carry a weapon or other-
          wise act as a peace officer.
             (b) The Commission shall establish minimum
          physical, mental, educational, and moral stan-
          dards for all reserve law enforcement officers."
     Article 483.of the Texas Penal Codesprovides the penalty
for one unlawfully carrying arms. Article 484 of the Penal
Code exempts certain people.from Article 483.. The pertinent
portions of particle 484 read as follows:
             "The preceding article shall not apply to
          a person in actual service as a militiaman,
          nor to any'peace officer in the.actual dis-
          charge of his official duty,~. . . nor to any
          deputy constable, or special policeman who
          receives a compensation of.forty dollars or
          more per month for his services as such,offi-
          cer, .and‘who is appointed in conformity with
          the statutes authorizing such appointment;. . ."
     The provision that Article 483 shall not apply
             II
              . . . to any deputy constable. : . who re-
          ceives,a compensation of $40.00 or more per
          ~month for his services as such officer, and

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Honorable W. T. McDonald, Jr., page 4    (M-1267)


         who is appointed in conformity with the
         statute authorizing such appointment. . .((
refers only to deputy constables appointed pursuant to Articles
6879 and 6879a, Vernon's Civil Statutes, but it does not apply
to a reserve deputy constable appointed pursuant to Article 6869.1,
Vernon's Civil Statutes. Section l(d) of Article 6869.1 provides
that such reserve deputy constables "shall serve without pay."
No such restriction applies to a deputy constable appointed pur-
suant to Articles 6879 and 6879a.
     When a reserve deputy constable has fulfilled the requirementa
set forth in Section 2A (a) of Article 4413 (29aa), Vernon's Civil
Statutes, such
             *reserve law enforcement officer may
          carry a weapon or otherwise act as a peace
          officer" as authorized in that Article.

Further that part of Section l(f) of Article 6869.1 relating to
reserve deputy constables provides that
             U'
              . . . reserve deputy constables, while
          on active duty at the call of the constable
          and whi3.e 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."
Therefore, a reserve deputy.constable while on active duty comes
within Article 484 of the Texas Penal Code which provides that
Article 483 shall not apply
             "to any peace officer in the actual dis-
          charge of his official duty. . ."
     In response to your second question concerning the dura-
tion of the appointment, the Commissioner's Court may authorize
the appointment which will run for the duration of the constable's
tenure of office or such time the Commissioner's Court may direct.,
Pursuant to Section l(b) of Article 6869.1, the Commissioner's
Court may limit the number of reserve deputy constables autho-
rized to be appointed. Once the Commissioner's Court has autho-
rized such appointments, the constable makes the actual appointment
of the reserve deputy constables. 'The Commissioner's Court does.
not have the power to remove a person,so appointed. See Attorney


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Honorable w. T: McDonaldi Jr&t Page 5      (M-1267)


General of Texas Opinion O-7081 (1946). As to the individual
appointee, Article 6869.1 confers upon-the constable the power
to make the appointment, but it fixes no definite term of office.
Section l(c) of that Article provides
            II
             . . .such reserve deputy constables shall serve
            at the discretion of the constable. . .'I
and as such, both the appointment and tenure are discret5onary
with the constable, the tenure being subject to the space of time
authorized by the Commissioner's Court. Since this power and
authority is given by statute, it cannot be contracted away so
as to bind the constable to retain his reserve deputy in such a
position for any fixed period. See Murray v. Harris, 112 S.W.Zd
1091 (Tex.Civ.App. 1938, error dism.). Therefore, .a reserve
deputy constable is appointed for no certain time. He serves
at the pleasure of the constable and within the period of time
authorized by the Commissioner's Court.
                            SUMMARY
          Article 484 of the Texas Penal Code was not
     repealed by the enactment of Articles 6869.1 and
     4413 (29aa) S?A, Vernon's Civil Statutes, which
     provide,for the appointment and qualifications of
     reserve deputy constables. The appointment of
     deputy constables is governed by the provisions
     of Articles 6879, 6879a and 4413 (29aa) 92.
           Reserve deputy constables are appointed for
      no certain time but they serve without pay at the
      pleasure of the constable and within the period of
      time authorized by the Commissioner's Court.



                                                     , .’
                                                 &i2%2=.
                                                C. MARTIN
                                                General of Texas
 Prepared by Thomas M. Pollan
 Assistant Attorney General
 APPROVED:
 OPINION   COMMITTEE


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Kerns Taylor, Chairman
W: E. Allen, Co-Chairman
Jay Floyd
Ben Harrison
Bob Lattimore
David Longoria
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLA WHITE
First Assistant




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