Untitled Texas Attorney General Opinion

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