                 .         September 30, 1968

IionorableW.C. Lindsey            Opinion No. M-282
Criminal District Attorney
Jefferson County Courthouse       Re:   Whether haws rule cities
Beaumont, Texas 77701                   not covered by Civil Service
                                        Act (Art. 1263m, V.C.S.)
                                        both below and above 10,OOQ
                                        population may organiae an
                                        auxiliary police force with
                                        the right to carry pistols
                                        end other weapon8 while on
                                        duty but not to receive caa-
Dear Mr. Lindsey:      _                pensation.
          Your recent letter requesting an opinion of this office
etates,     in part, as follows:
          *The City of Port Neches, Texas, has a popu&.ation
          of 6696 eccording to the 1960 Federal Census. The
          City of Port Neches is a home rule city agd in its
          Charter has reserved to its City Council the same
          general powets of appointment, term of office,
          qualifidationa and establishment of salaries for
          police officers as set forth in Article 998, V.A.
          C.S. Ry Ordinance the City Council has eeteblished
          an Auxiliary Polio* Force which his affiliated with
          and subject to the Port Recbes Police Department.
          This Ordinance does not provide fox the payment
          of compensation to the members of the Auxiliary
          Force, and in fact, none is made.
          "There are other home ride &ties lying within my
          district who have dmi+ar types of Charter provis-
          ions for estglbliehmentof Police Forces and who
          by ordinance;Yhaveestablished reserve police of-
          ficers without compensation. They do have a
          population in excess of 10,000 according to the
          1960 Federal Census."




                             - 1367 -
Hon. W.C. Lindsey, Page 2,   (M-   282)


In relation thereto you present the following questions:
      “1. May the City of Port Neches, not beinq
          covered by the Civil Service Act (Art.
          1269m, V.A.C.S.) and having a population
          of less than 10,000 organize an auxiliary
          police force when the members thereof do
          not receive compensation, and may these
          members carry weapons in the performance
          ,of their duties?
      "2. May the cities not having elec:ted to be
          covered by the Civil Service Act (Art.
          1269m, V.A.C.S.) but havin g a population
          of more than 10,000 according to the last
          Federal Census, organize an auxiliary police
          force when the-mer&ers thereof do not ;e-
          ceive compensation, and may these members
          carry weapons in the performance of their
          duties?"
      In Attorney General's Opinion Number WW-997 (19611,
this office has previously expressed the opinion that mem-
bers of the auxiliary police department of the City of Taft
were authorized by law to carry pistols in the performance
of their duties as police officers and to act as city police
even though they did not receive as much as $40.00 per month
compensation. That opinion was based upon the fact that such
,officerswere apparently appointed under the authority of
Article 998, Vernon's Civil Statutes: and that being so ap-
pointed they were a constituent part of the regular police
force and were not subject to the "special policeman" pro-
visions of Article 484, Vernon's Penal Code.
     Article 998 provides as follows:
     "The city or town council in any city or town in
     this State, incorporated under the provisions of
     this title may,!by ordinance, provide for the
     appointment, term of office and qualification of
     such police officers 8s may be deemed necessary,
     Such police officers so appointed shall receive
     a salary or fees of office, or both, as shall
     be fixed by the city council. Such council may,
     by ordinance, provide that such police officers
     shall hold their office at the pleasure of the
     city council, and for such term as the city
    Hon. W.C. Lindsey, Page 3, (M-282)


          council directs. Such police officers shall
          give bond for the faithful performance of their
          duties, as the city council may require. Such
          officers shall have like powers, rights and
          authority as.are by said title vested in city
          marshals. . .*
                                       ,
          Article 483, Vernon's Penal Code prohibits the carry-
    ing of pistols in this state, while Article 404 provides,
    in part, that:
          "The preceding article shall not apply to 0 D *‘any peace
          officer in the actual discharge of his official duty,
          ... nor to any ... specral policeman who receives
          a compensation of forty dollars or more per month
          for his services as such officer, and who is ap-
          pointed in conformity with the statutes authorizing
          such appointment; . . ." (Emphasis added) D
            In line with the Attorney General's Opinion No. WW-997
    (1961), supra, which the Legislature has not seen fit to void
    in the seven years since its issuance, it is the opinion of
    this office that if the members of your proposed police force,
    by whatever name such force may be designated; aireappointed
    under the provisions of, and in compliance with.the require-
    ments of Article 998, or similar home rule charter provisions,
    they will be peace officers and as such, while in the actual
   'discharge of their official duties, will be, by the provisions
    of Article   404 specifically exempted from the prohibitions
    of Article 4831 and accordingly, your first question is
    answered in the.affirmative.
          Article 1583-2, Vernon's Penal Code, prescribes minimum
    compensation for firemen and policemen in cities of 10,000
    population and over.  Section 2 of said Article 1583-2 reads
\.. as follows:
          "Any city official, or officials, who have charge
          of the Fire Department or Police Department, or
          who are responsible for the fixing.of the wages
          herein provided in any such city who viol&e any
          provisions of this Act, shall be fined not less
          than Ten ($10.00) Dollars or more than One Hund-
          red ($100.00) Dollars: and each day on which such
          city official, or officials, shall cause or permit
          any violation of this Act shall constitute and be
          a separate offense."
                                                        i .i
                       ',
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                                             3
     Hon.   W.C, Lindsey, Page 4, (~-282)


           It is the opinion of this office that even though    :
     there is no provision contained in said Article 1583-2
     which would make it a violation of Article 403 for such
     policeman to carry a pistol or other weapon while in the
     'actualdischarge of this duty if he were so employed with-
     out compensation in a city of over 10,000 population, the
     employs&t of such office; without compliance with the pay
     requirements of Article 1583-2 would constitute a violation
     on the part of the above-referred official and, therefore,
     your second question should be answered in the negative,
                             SUMMARY
            Auxiliary policemen appointed in accordance
            with Article 998, V.C.S., are not prohibited
            from carrying a pistol while in the actual
            discharge of their official duty even though
            they are paid no compensation for their
            services when they are so employed by a city
            having a population of less than 10oOOO by
            the preceding Federal Census and which city
            is not covered by the Civil Service Act Art,
            1269m, V,C.S.), but such employment without
            compensation in cities of over 10,000 would
            subject certain city officials to penal f$ne
            under the provisions of rtrcle 1583-2, VOPOCO
                                  A




     Prepared by Monroe Clayton
     Assistant Attorney General

._   APPROVED:
     OPINION COWMITTEE
     Hawthorne Phillips, Chairman
     Xerns Taylor, Co-Chairman
     Bob Lattimore
     Jim Vollers
     Harold Kennedy
     Robert Owen
     STAFF LEGAL ASSISTANT
     A.J, Carubbi, Jr,
