Honorable W.C. Lindsey Opinion No. M-246
Criminal District Attorney
Jefferson County Courthouse Re: Whether police “reserve”
tieaumont, Texas 77701 officers may be legally con-
stituted otherwise than under
Art. 1269m, V.C.S. and related
Dear i4r. Lindsey: questions?
The City of Port Arthur Police Department is under the
State Civil Service Act, Article 1269m, V.C.S. To supple-
ment and assist the regular police force the City has by ordi-
nance ~40. 2859 attempted to provide for a police "reserve'
force. Members of the police "reserve" force are appointed
by the Chief of Police, and are unpaid volunteers. You are
concerned with your duties of law enforcement over police
reservists bearing arms and making arrests, etc. and have
asked the following questions concerning this situation:
(1) In view of the City having adopted Article 1269m
V.C.S., may police .reserve. officers be legally con-
stituted on a basis other than under the terms and re-
quirements of that lx
(2) If police "reserve- officers may not be othervise
constituted than under Article 1269m, may they be con-
stituted thereunder by a special classification having
only part-tima duties of a supplementary or auxiliary
nature but having full police power and authority?
(3) Does Article 1563-2, Texas Penal Code, requiring
minimum monthly pay for police officers, apply to
"reserve" officera as presently constituted or if
constituted under the Civil Service Law, and is the
minimum pay to be provided without respect to number
of hours worked in a month?
(4) Do the exceptions under Article 484, Texas Penal
Code, include "reserve* officers as presently con-
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honorable W.C. Lindsey, Page 2, (M-246)
stituted, or must the reserve officer be compensated
at least $40.00 monthly as a special policeman?
(11 In answer to Question 1, it is the opinion of this
office that a city which has adopted Article 1269m and placed
its regular police force under the provisions of this act is
without authority to create a police "reserve" unless all
members of such "reserve" are incorporated within the frame-
work and protection of Article 1269m. Article 1269m, Section 8,
provides, in part, as follows:
"The Commission shall provide for the classifi-
cation of all firemen and policemen. Such classi-
%zation shall be nrovided bv ordinance of the Citv
Council, or legislitive body: Said City Council, *
or legislative body, shall prescribe by ordinance
the number of positions of each classification.
Jo classification now in existence, or that may
be hereafter created in such cities, shall ever be
filled except by examination held in accordance with
the provisions of this law. All persons in each
classlfxatlon shall be paid the same salary and in
ddrtion thereto b id longevity or seniority
iay that he may beee%tlizYto. This shall not
prevent the Head of such Department from dt-
signating some person from the next lower
classification to fill a position in a higher
classification temporarily, but any such person
so designated by the Head of the Department
shall.be paid the base salary of such higher
position plus his own longevity pay during
the time he performs the duties thereof. The
temporary performance of the duties of any such
position by a person who has not been promoted
in accordance with the provisions of this Act
shall never be construed to promote such per-
son. All vacancies shall be filled by perman-
ent appointment from eligibility lists furnished
by the Commission within ninety (901 days after
such vacancy occurs.
Firemen and policemen shall be classified
as above provided, and shall be under civil
service protection except the Chief or Head
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Honorable W.C. Lindsey, Page 3, (M-246)
of such Fire Department or Police Department,
by whatever nams he may be known." (Emphasis
added.)
Section 9 of the statute provides, in part, as
followa:
"The Commission shall make provisions for open,
competitive and free examinations for persons making
proper application and meeting the reguirements as
herein prescribed. All eligibility lists for ap-
plicants for original positions in the Fire and
Police Departments shall be created only as aa
result of such examinations, and no appointmsnts
shall ever be made for any positron rn such Depart-
ments except as a result of such examination, which
shall be based on the applicant's knowledge of and-
gualrficatlons for fire fzghtznq and work m the
Fire Department, or for police work and work in
the Police Department, as shown by competitive
examinations in the presence of all applrcants
for such position, and shall provide for thorouqh
Xnquzry rnto the applicant's general education
and mental ability.* (Emphasis added.)
In City of San Antonio v. Hahn, 274 S.W.Zd 162 (Tex.Civ.
App. 1955, error ref., n.r.e.1, this statute was held to be such
a comprehensive law as to cover everyone in the police department
of cities adopting the Act. Therefore, the city'8 ordinance is
without lawful effect in providing as it did for such *reserve"
police force.
(2) In answer to Question 2, it is the opinion of our
office that under Article 1269m one classification could be a
classification having only part-time duties of a supplementary
or auxiliary nature but having full police power and authority,
provided however, the officers in such classification must be
paid in accordance with Article 1583-2, Texas Penal Code.
(3) In answer to Question 3 , you are advised that it is
the opinion of this office that if a city has adopted Article
12698, and it has created a police reserve with all members
of 8ucb a group being incorporated witn the Ircuueworx and pro-
tection of Article 1269m, then Article 15E3-2 would require
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honorable W.C. Lindsey, Page 4, (M-246)
that such police reserve be paid the minimum monthly salary
of $195.00 per month. Although the city could determine the
number of hours every policeman should work each month, the
City would be required to pay the minimum salary regardless
of the number of hours worked by any policeman.
(41 In answer to Question 4, it is our opinion that
t1,
\!sL! 'rcacrvt" officers must be either a "peace officer"
or il "special policeman" as named in Article 484. If these
officers arc peace officers and if, as you advise, the City
of Port Arthur has adopted Article 1269m, then they would
be entitled to all of the benefits arising to police officers
thereunder, including a minimum salary of $195.00 per month
as provided by Article 1583-2. In this event, Article 484
would not prohibit the carrying of weapons by these individ-
uals.
3n the other hand, if the "reserve" officers are
"special policemen," Article 484 would prohibit the carrying
of weapons by individuals unless they received compensation
of $40.00 or more per month for their services as such officers.
It is our further opinion that the provisions of Articles
1269m and 1583-2 do not apply to individuals summoned by the
Xayor under Article 995 or under a similar provision contained
in the charter of a Home Rule City, but that under Article 484
persons so summoned must be compensated at the rate of $40.00
monthly in order to legally carry the arms which are prohibited
by Article 483, Texas Penal Code.
Article 995, V.C.S., is applicable only to general
law cities, and provides:
".:ilc?ncver
the mayor deems it necessary, in
ordtirto enforce the laws of the city, or to
avert danger, or to protect life or property,
in case of riot or any outbreak or calamity
or public disturbance, or when he has reason
to fear any serious violation of law or order,
or any outbreak or any other danger to said
city, or the inhabitants thereof, he shall
summon into service as a special police force,
all or as many of the citizens as in his judg-
ment may be necessary. Such summons may be
by proclamation or other order addressed to
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ilonorableW.C. Lindsey, Page 5, (M-2461
the citizens generally or those of any ward
of the city, or subdivision thereof, or may
be by personal notification. Such special
police force while in service, shall be sub-
ject to the orders of the mayor, shall per-
form such duties as he may require, and shall
have the same power while on duty as the
regular police force of said city."
In the case of 6ome rule cities, such as the City of
Port Arthur, the source of legal authority is the charter.
Article II, Section 16, of the Port Arthur City Charter
is worded similarly to Article 995 and gives the Mayor sub-
stantially the same power.
SUMMARY
A city which has adopted Article 1269m,
V.C.S. (Civil Service Act) and placed its regular
police force under this act is without authority
to create a police 'reserve", unless such reserve
is constituted under and strictly in accordance
with Article 1269m.
The only special classification for police
officers other than one placed within the frame-
work of the regular police force of a city that
has adopted Article 1269m is a special police
force that may be summoned by the Mayor in times
of emergency as provided by law. Article 995,
V.C.S., or a city charter conferring such power,
gives the Mayor the authority to summon citizens
into service as special policemen in time of emer-
gency. When these special police are in service
they have the same power as the regular police
force ; and Article 484 of the Texas Penal Code
requires that they must be paid the minimum of
$40.00 per month if they are to carry firearms.
When a city has adopted Article 1269m, Article
1583-2 of the Texas Penal Code requires that
the city pay all policemen covered by 1269m a
minimum salary of $195.00 month regardless
of the number of hours wor
llonorableW.C. Lindsey, Page 6, (M-246)
A'rcparedby Ronald Luna
irssistantAttorney General
irPPi