                               The Attorne’y General of Texas
                                                Elarch
                                                     31, 1986
JIM MAnOX
Attorney General


                               EonorableDan 71.l)ent                ~ini0l.i
                                                                           NO.   J&f,62
                               DistrictAttorney
                               P. 0. Box 400                       Ret Whether a municipalpolice
Telex 91om74.1397              Hillsboro.Texas 76645               officer may serve warrants for
Telecopier 51214750266                                             a fee

                               Dear Mr. Dent:
714 Jwkson, Sulte 700
oaib,Tx.    7S2024S96
2lu142.9944                        You ask whether members of the regular,policeforce of a home
                               rule city may legally~'servearrest'warrantsduring their "off-duty"
                               honrs es mewherselfa reservepolice force and wbetber they may retain
4924 Alberta Ave.. Suite IS0   a fee for such "of'f-duty"
                                                        service.
El Paso. TX. 79903.2793
915M3-344
                                    The police officersof a home rule city are peace officerswhose
                               duty it is "to preserve the peace within [their]jurisdiction." See
1001 Texas, Sulte 700          Code Grim. Proc. arts. 2.12(4), 2.13; V.T.C.S. art. 999. A peace
liouston. TX. 77w2-3111        officer'sduties include the semice of arrest warrants. See Code
71-
                               Grim. Proc. arts. 2.13, 2.16. Peace officersmust be certifieaby the
                               state. V.T.C.S. art. 4413(29aa). 12(c); Attorney General Opinion
SW Broadway, Suite 312         E-1002 (1977). They are vested with the privilegedauthorityto make-
Lubbock, TX. 79401.3479        arrests, see Code Grim. Proc. art. 14.03, and to possess handguns.
Sw747-5239                     Penal CodcS46.02, 46.03. A commissionedpeace officer is, unlike
                               other city employe,es,usuallydeemed to be "011duty" at all times and
uo8 N. Te”th. Suite 9          is obligatedto emrcise his authoritywhenever there is a breach of
McAllbn, TX. 79591-1995        peace within his jurisdiction. Attorney General Opinion .JM-140
512m92.4547                    (1984); see Attorney    General Opinion JM-57 (1983). Thus, your
                               reference= city ,policcofficers serving in a reserve force during
200 MSh plaza, suite 4w
                               their "off-duty"hours must be qualified;they would neverthelessbe
San Antonlo, TX 792052797      "on-duty"for the purpose of exercisingtheir duties and for certain
512l22Sa91                     governmentliabilitypurposes. -  See AttorneyGeneralOpinionsJM-140,
                               JM-57.
An Equal OpportunItyI
Afflnnatl~ ActiOn Employer
                                    These considsrations,however, apply primarily to emergency
                               sltuatione,&,    ,wherethe peace officerwitnessesa trims when he is
                               not oa active duty. You ask about the establishmentof an official
                               reservepolice fame, comprisedof regular peace officers,to handle
                               the executionof ,arrest warrants outside of their regular hours. A
                               bowe rule city ha.8broad power to establish a police force. Tax.
                               Coast. art. XI, g5; V.T.C.S. art. 1175, 027; ses Kling v. City of
                               Austin,.62 S.W.2d 689, 690 (Tex. Civ. App. - Aan    1933, M writ).
                               Ky      not, however, enact ordinanceswhich contravene the general
                               laws of this state. Lower Colorado River Authorityv. City of San
                               Marcos, 523 S.W.2il641. 645 (Tex. 1975). You ask specificallyabout
DonorableDan V. Deot - Page 2    @M-462)




the establishaentof a reservepolice force pursuantto article998a.
V.T.C.S.

    Article998a prwides, in part:

            (a) The governingbody of say city, towu, or
         village may prov:ldefor the establishmentof a
         police reserve j’a~rce.Members of the police
         reserve force, if authorized,shall be appointed
         at the discretionelfthe chief of police and shall
         eerve as peace cfficers during the actual dis-
         chargeof officia:.duties.

            (b) The goveming body shall establishquali-
         ficationsand standardsof trainingfor membersof
         the police reseme force, and may limit the size     -
         of the policeresmve force.

            (c) Ho persos appointedto the police reserve
         force may carry Z weapon or otherwise *ct es a
         peece officer un%  he has been approved by the
         gwcrning body. %ter approval,he may carry a
         weepou only whe; authortied by the Chief of
         Police,and when mischargingofficialduties as a
        .duly constitutedisace officer.

            (d) Members af the police reserve force serve
         at the discretionof the chief of police and may
         be called into setvice at any time the chief of
         police considers:Ltnecessary to have additional
         officers to pret.eme the peace and enforce the
         law.

             . . . .

            (g) Reserve police officersshall act only in
         a enpplement*ry 7r acity to the regular police
         force aud shall ?n no case assume the full time
         duties of ragulrz:police officers without first
         complyingwith ai1 requirementsfor such regular
         Police officers.

            (h) This Act does uot limit the power of the
         mayor of any f,eneral-law city to summon into
         service a specis:Lpolice force, as provided by
         Article 995, Revised Civil Statutes of Texas,
         1925. (Emphasisadded).

    Thus, article998s places soma limitson a home rule city'sbasic
authority to establish a regular reserve police force. See also
V.T.C.S.art. 4413(29aa),16 (reservepolice officersmust also comply


                                p. 2116
BoqorableDan V. Deut - Page 3 (J&462)




with certain officer standards and education requirements);Texas
Board of PrivateInvestigta:ors   and Private SecurityAgenciesv. G
County Sheriff'sReserve,?i89 S.W.2d 135. 137 (Tex. Civ. App. - San
Antonio1979,no writ); Dixon v. klcUil.len,  527 F. Supp. 711 (N.D.Tex.
1981); cf. Attorney GenG?L Opinion H-1286 (1978) (specialewergency
police force under artic1.e995. V.T.C.S.). The statute authorizes
granting reserve  police oE!Eicers powers which are more limited than
those held by regularpoUce officers. See V.T.C.S.art. 9980, O(c).
Further,the statuteindicatesthat rese~officers shall act only In
a aupplementtary capacity. sec. (g). Consequently.althougha member
of the regular police force may perform extra duties during his
"off-duty"time. we do n#x believe that article 998a governs this
extra duty because the duties of regular and reserve peace officers
are inconsistent.

     Moreover,becsuse you ask about the regularmembers of the bone
rule city's police force, article 5154c-1. V.T.C.S., the Fire and
Police Employee Balations Act. rrmstalso be addressed. See 120(e)
(preemptiveeffect). This statute applies to "each sworn-&tified
full-tinepaid employee. . . who regularlyservas In a professional
Law enforcementcapacityin the police departmentof any city. . . ."
Sec. 3(2). The act requires the provision of compensationand
ewploynent conditions whj.chprevail in comparable private sector
employment. Sec. 2(a). When a police officerfor a city works during
his "off-duty"hours for ,thatcity. he is working overtime. The
prevailingwertiwe wages and working conditionsshould thereforebe
eonsulted. See generallyKiersteadvi City of San Antonio, 636 S.W.2d
522, 529 (Tex.Civ. App. -'?an Antonio 1982),aff'd in part, rev'd in
Part on other grounds,643 S.W.2d 118 (1982). If a city has adopted
the collectivebaruaininnsrwisions of the act. uursuant to section.
5, it must also co&y w&l; those provisions. - *

     The second aspect of your question is whether the compensation
for these police officers may take-the form of a per-warrsntfee.
Because you asphasisethe $25 fee authorizedin article 45.06 of the
Texas Code of CriminalProcedure.the contextof your questionimplies
that the fees for these officerswould be those specifiedin article
45.06. This articleprovides,in part:

             The governingbody of each incorporatedcity,
          town or village 13hallby ordinanceprescribesuch
          rules, not inconsistentwith any law of this
          State, as way be proper to enforce,by axecution
          against the property of the defendant, or
          imprisonwentof the defendant,the collectionof
          all fines imposesiby such court, and shall also
          have power to abopt such rules and regulations
          concerning the practice and procedure in such
          court as said governingbody may deem proper, not
          inconsistentwith any Law of this State. All such
          fines; a special expense, not to exceed $25 for


                              p. 2117
                                                                        J
HonorableDan V. Dent - Page 4 (JM-462)




         the issuanceand service of a warrant of arrest
         for 'anoffenseunder Section38.11,Penal Code, or
         under Section 149. Uniform Act Regu&atingTraffic
         on Eighways (Article6701d. Vernon's Texas Civil
         Statutes);and t1.especial expensesdescribedin
         Article 17.04 de;llingwith the requisitesof a
         personal bond and a special expense for the
         issuanceand servtceof a warrant of arrest.after
         due notice. uot to exceed $25, shall be paid into
         the city treasury-forthe use and benefit of the
         city,~towuor vil:h&. (Emphasisadded).

This statutesakes it clear that these fees must be paid into the city
treasury. They may not be paid as compeusatioato the arresting
officer.

    With regard to receivingfees from other sources, it is well-
establishedthat peace officersmay not accept compensationfrom third
parties or private sources for the performanceof their official
duties. AttorneyGeneralCpinionsX4-57 (1983);C-661 (1966);O-1565
(1939);see also Weber v. clty o; Sachscgk,S;l S.;iMt;6:: ;h&(Tex;
Civ. App. - Dallas 1979. no writ ; cf.     Y
S.W.2d 248. 250-251 (Ter. Civ. AnuT- Amarillo 1948. writ ief'd
n.r.e.); see ganeralL~~Tume~v. Ohio;~273U.S. 510 (1927). Thus, any
compensationfor theae officersmust come directlyfrom the city. Cf.
V.T.C.S.art. 999b; AttorneyGeneralOpinionJM-160 (1984)(interlox
agreement for police proorction). As indicated,such compensation
=st also complywith the requirementsof article5154c-1,V.T.C.S.

                            SUMMARP

            The members OE the regular police force of a
         home rule city may legally serve arrest warrants
         outside of their regular hours, hut may not
         receive,as compensationfor such service,the fee
         provided for in article 45.06 of the Code of
         Criminal Procedure. The city rrmstalso comply
         with the prevai:lingwage and working condition
         prwisions of article5154c-1,V.T.C.S.




                                             HATTOX
                                      AttorneyGeneralof Texas

JACK HIGETOWRR
First AssistantAttorneyGoneral


                              p. 2118
HonorableDan V. Dent - Page 5   (33-462)




MARY KELLER
ExecutiveAssistantAttomq    General
ROBERT GRAY
SpecialAssistantAttorneyGeneral

RICK GILPIN
alai-,   opinionCanmittee

Preparedby JenniferRiggs
AssistantAttorneyGeneral




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