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
p. 2119