Untitled Texas Attorney General Opinion

‘. ’ .” ’ The Attorney General of Texas December 29. 1983 JIM MATTOX Attorney General supwmacewl eullsl~ Hooorablc Ray Kell6r Opinion No. 34-102 P. 0. Box12545 ctlairman *uaun. TX 7871% 2545 Committee on Lav Enforclmeut lb?: Whether a coaatable or m?l47sE41 T.bx ews74.1j(l7 Texas Eouse of Representatives sheriff may appoint full-time Tabulpbr 512J475am P. 0. Box 2910 deputies who receive no cow Austin. Texas 78769 pensation 714 J*ckwn. sun4 700 Dear Repreeentatlve Keller: tblbh lx 752mA506 214n424044 You have requeeted our opinion regarding the authority of county ,sheriff6 and constable6 to appoint deputy peace officers who will receive no compensation. It is our opinion that etate lav does not require lawfully appointed deputy peace officers to necessarily receive any compensation. However, we believe that any person conmisaioncd as a peace officer by a city or a county who will receive 1001Terar.sun. 700 no compensation muat nevertheless perform some legitimate law Hourton. lx. 77002-2111 enforcement dutiee. It is not a proper purpose for a deputizing 7l2i222.5am authority to designate an individual as a peace ,officer vho will do nothing for the political entity facilitating his appointment. Purthermore, we do not believe that a person may be .deputired as a peace..officer often trained, educated and certified soften at public expense solely to enable that person to secure private employment in 6 (Iecurlty related fi6ld. See JM-57 (1983). The Private Investigator6 and Private Security Agcie6 Act m6kea an exception from its 4200 N. Tefafh. Sulb S McAllm. TX. 7550%15afi licensing requirements for aa person who ha6 full-Mm6 employment as a 512mB24547 : peace officer.” :.V.T.CiS. art. 4413(29bb). ‘)3(a)(3). In this opinion we limit our inswer’to,the simple question of:whether s peace officer mum rcceivc compeoePtion. We do :not sddre66 the una6ked questions ,:concerning the legality :oz liability vhicb mighty -ari66 from the practice-of -permitting p66ce officers to UtiliZ6 public property and suthority .in the pursuit of personal snd private gain in connection with employmentin the private 6ector. .Cf. - V.T.C.S: art. 4413(29bb), An Equ*l ODporrunnp C28(d). .. 1) Afflrm.IlW Acflon Empfoyw A county may not be required to pay ~deputy peace officers in accordance with a binding salary c’lassiflcation schedule. Article 12699, V.X.C.S.. amended this ,year;Acts 1983. 68th Leg., ch. 433. at 2632, requfres counties of more than 75.000 population to 6et up classifications in the Sheriff’6 . . . [department.] providing for dutieo under such Honorable Kay Keller - Page 2 (Jn-102) classificationa and salary for each classifica- tion; and thereafter any member of any Sheriff’s . . . Department who lo called upon to perform the duties under any such classification shall be paid the salary provided therefore for such period as he performs such duties. Furthermore, article 12699. as amended, provides for a county wide vote upon a petition signed by 25% of the qualified voters to require that the county pay certain minimum salsrles for each “rank. pay grade, or classification” within the sheriff’s office. Article 2372h-8. V.T.C.S., now applicable to counties of more than l.SOO.000 population permits the establishment of a civil service system within the sheriff’s department follovlng a favorable vote among the department’s employees. See Acts 1983, 68th Leg., ch. 570. at 3410. The civil service commlesl~may adopt rules and regulations relating to the classification of and benefits paid to deputy sheriffs and other department employeee. The statute does not apply to constables. See also V.T.C.S. art. 2372h-4. (comprehensive civil service system in counties of 200,000). The Fire and Police Employee Relations Act. article SlS4c-1. V.T.C.S., permits collective bargaining’ to determine the wages to be paid In the sheriff’6 office. Hovever , the statute applies only to “full-time paid employee[s].” Id. 13(2). Deputies who are paid are required to be compensated on abasls substantially comparable to the private sector. Id. 14. A county wide election is required to adopt the provisions 0Grticle SlS4c-1. Id. 15(c). See Commissioners’ Court.., of _,..El Paso County v. El Pax County Sheriff’s Deputies Association; 620 S.W.2d 900 (Tex. Civ. App. - El Paso 1981, writ ref’d n.r.e.). Each position of deputy sheriff or constable, whether compensated or not, Oust first be .approved by the co+ssioners’ court. :Nevertheless , .the,.sherlff or constable is authorized to cnlfst the assistance of .citizens for the supression of civil disturbances. V.T.C.S. art. 6886 (authority of constable to call citizen to his aid); Code Crlm. Proc. arts. 6.05. 6.06, 8.01. 8.05. Article 8.09 of the Code of Criminal Procedure provides that such “special constables” have the authority of peace officers. See Gonzales v. State. 110 S.U. 740 (Tex. Grim. App. 1908). Article~69. V.T.C.S.. specifically provides for the appointment of deputy sheriffs: Sheriffs shall have the power. by writing. to appoint one or more deputies for their respective counties. to continue in office during the pleasure of the sheriff. who shall have power and -\ authority to perform all the acts and duties of p. 429 Honorable Ray Keller - Page 3 (~14-102) their principals; and every person so appointed shall, before he enters upon the duties of his office, take and subscribe to th6 official oath . . . . See also V.T.C.S. arts. 6869s (repeated twice in the Civil Statutes), 6869b. 6869c. 6869e-1. 6869f. The sheriff is respoosiblc for the acts of hi6 deputie6. V.T.C.S. art. 6870. Article 68796, V.T.C.S.. provide6 for the appointment of deputy constables: The duly elected Constablc in each Justice Precinct may appoint Deputiee in accordance with the provisions of Section 2 of this Act. 6nd each and every instance said Deputy Constables shall qualify as required of Deputy Sheriffs. Section 2 of the statute provides for the constable to make application to the commissioners' court for the approval of the appointment of deputies in his office: said Constable shall first make written application to the Comaissioners' Court of his County shoving that it is necessary for such Constable to have the Deputy or Deputies requested in order to properly handle the business of his office originating in the Precinct in which such Constablc ha6 been elected giving the name of each proposed appointee; and if the Commissioners' Court shall find that the Constable Is in need of a Deputy or Deputies requested to handle the businees originating In his Precinct, then and in that : event. and in that event -1y. the .Commlssioners' Court shall approve and confirm the :piinnent of the Deputy or Deputies provided by . The statute ;a160 impoees a fine of not more than $1,000 on any constable or deputy~vhere the appointment is made without the consent and approval of the cmissioners' court. V.T.C.S. art. 6879a. 13. The con6table. like the sheriff, is responsible for the acts of his deputiee. V.T.C.S. art. 6879b. Reserve deputy eheriffs snd constables may be appointed pursuant to articles 6869.1. V.T.C.S. The coa4ssioner6' court is entitled by the statute to limit the number of such resewe peace officers. Id. Cl(b). The c~isaioneru' court may. but is not required. to prov= compensation and reimbursement of expenses incurred by reserve peace officers. Id. II(d); see Attorney Cenersl Opinion M-1026 (1971) (the lau es originally enactedprovided that the county was prohibited from . . I Honorable Ray Keller - Page 4 (.j&lD2) compensating reserve peace officerrr). Acte 1971, 62nd Leg., ch. 506, Ii(d). In Attorney General Opinion H-1002 (1977) it va6 concluded that a sheriff lacked authority to appoint uncertified "special deputlee" to patrol an annual county celebration. Similarly, in Attorney General Opinion V-1050 (1950). it was concluded that sheriffs and constables did not have th6 authority to issue "sp6clal cessions" without obtaining commissioners' court authoritation'under article 3902. Deputy peace officers must meet the standards promulgated by the Mssion on Law Enforcement Standard6 and Education. V.T.C.S. art. 4413(29aa). This statute requires testing and training for physical and mental fitness. l4inimun standards for legal education and weapons training are required. This law does not require peace officers to bc paid. Article 3902. V.T.C.S.. is the general statute providing for the appointment of ssslstants and deputies for county officisls. See also V.T.C.S art. 3912k. Although the portion6 of article 3902, vhlch limit the coarpensation of deputies in counties of certain population. are either unconstitutional as special laws or impliedly repealed. its lntroductorg paragraph provides in pertinent part a6 follow: Whenever any district. county, or precinct officer shall require the services of deputies, assistants. or clerks in the performance of his duties, he ahall apply to the County Caamissioners' Court of his county for authority to appoint such deputies, assistants or clerks. 6tating by worn application the number needed. the position to be filled. and the amount to be paid . . . . said court shall mak6 its order authorizing the appointment of such deputies, assistants, and clerks end fix the compensation to be paid them . . . . provided that in no case shall the tiissioners' Court or any .member thereof atteppt'to influence the appointmnt of any person as deputy, assistant or clerk in any office. Upon the entry of such order th6 officers applying for such essi6tants. deputies or clerks shall be authorized to appoint them. See Renfro v. Shropshire, 366 S.W.2d 688 (Tex. Civ. App. - Rastlsnd 1978, writ ref'd 0.r.e.). Article 3912k authorizes the coaualssioners' court to fix the compensation and expenaes of county officials and employees. This statute does not prohibit county employees from serving vlthout compensstion. p. 431 Honorable Ray Keller - Page 5 (313-102) SUMMARY Conatables and sheriffs are authorized to appoint deputies to eerve without compensation in positions approved by the commissionera’ court. Attorney General of Texas TOM GREEN First Assistant Attorney General DAVID R. RICHARDS Executive Assistant Attorney General Prepared by David Brooks Assistant Attorney General APPROVED: OPINION COMMITTEE Rick Gilpfn. Chairman Jon Bible David Brooks . Colin Carl SuEan Garrison Jim Woellinger Nancy Sutton I _I*