October 19, 1948
Hon. John C. Marburger Opinion Bo. V-699
County Attorney
Fayette County Re: Authority of a Sheriff
La Grange, Texas to appoint more depu-
ties thsn those auth-
orieed by Article 6869.
Dear Sir:
Your request for an oplnlon reads, in part:
&dag a sheriff appoint more Qe-
utSe:&an those authorized by Art 6869
ig.C.S. In a county having a population of
about 30,000?
R2. IS such special deputy sheriff
commissions are authorized by la%?, woulU
it be necessary to follow the strict pro-
cedure outlined in Art. 3902 R.C.S. in or-
der to make such special Deputy appoint-
ments valid?
“3 . ‘if the sheriff should issue such
special deputy sheriff oommisslons to more
persons than those authorized by Art. 6869,
would it be unlawful for such special de-
puty sheriffs to carry a pistol?
“4. Would thse special deputy sheriffs
have anymore authof;ltg to make arrests than
any other citisen?
We quote the following provisions of Article
6869 :
USherifSs shall have the power, by
vriting, to appoint one or more deputies
for their re.spective counties, to conttiue
in office during the pleasure of.the sher-
iff, who shall have power and authority to
perform all the acts and duties of their
principals; ana every person so appointed
c4n Ron. ~ohn C. Marburger, page 2 (V-699)
shall, before he enters upon the duties of
his oSSlc8, take and SubSCrib to the of-
ficial oath, which shall be lndorsed on
his ~appolntment, together with the certi-
ficate Of the officer adminiStering the
same; and such appointment and oath shall
be recorded in the office OS the County
Clerk and deposited in said office. The
number of deputies appointed by the sher-
iff of any one county shall be limited to
not exceeding three in the Justice pre-
cinct in which is located the county site
of such county, and one in each Justice
precinct, and a list of these appointments
shall be posted up in $ conspicuous place
lnthe Clerk's oSSlce.
Article 3902, V, C. S., prOVid88, in part:
."Whenever any district, county or
precinat officer shall require the ser-
vices of deputies, aSSiStantS OrIC18rkS
in the performance of his dUti8s.he Ahall
apply to the County Commissioners' Court
of his county for authority to appoint such
deputies, assistants or clerks, stating by
.sworn application the numb8r neeUed, the
position to be filled and the amount to be
palcl. Said application shall be accompanied
by a statement showing the probable receipts
from fees, commlsslons and compensation to
be collected by saiU office during the Pis-
cal year and the probable disbursements which
shall include all salaries and expenses ~of
said office; and said court shall make.its
order authorliing the appointment of such
deputies, assistants and clerks and fix the
compensation to~be paid them aithin the li-
mitations herein prescribed and determine
the number to be appointed as inthe diSCr8-
tion of said court may be proper; provided
that in no case shall the Commissioners*
Court or any member thereof attempt to in-
fluence th8 appointment Of any person as
deputy, assistant or cl.erk in any ~OffiCe."
Your first question is answered by Attorney
General's Opinion No. O-3925, which'helb:
Hon. John C. Marburger, page 3 (V-699)
511
"It Is therefore ~0u.rO&i.& that'th8
sheriff OS Uilbarger County is entitled to
employ, in addition to a first deputy, as
many additions1 deputies as he is authorlz-
8d to employ by an order .of ths commission-
ers' Court, acting upan application of th8
sheriff filed in accordaftce with the pro-
ViSiOllS Of &'tiCl8 3902.
This conclusion was based on Attorney Gener-
eCl'; Opinion lie. O-12 which held that Article 6869, V.
which applied to sheriffs under the Fee Law had
bien'&perseded insofar as it applied to Galveston Coun-
ty by Article 3902, V. C. S.
we quote the following from Attorney General's
Opinion No. O-925:
“In the case.oS Trammel vs. Shelton,
45 SW 319, the relevant provision oS&ti-
cle 686 substantially the same as &act-
ed in 1 8$9, which grants authority to the
sheriff to appoint deputies and limits
their number, was held'to be directowi
Such autHorlty as was by this art1018 and
peviously,at common law given tb ths sher-
iif, was by general law superseded and vest-
ed in the coPrmissioriers~court tider the
provisions of &W.cle 3902, supra. Such:a
cbnstructl0n,as-,would harmonlee the two art-
icles 6869 and 3902, supra, should b8 iven
with the latter article controlling. &Xi18
said titiole 6869 seeks to limit the dis-.
0retion to be exercised by the Sh8riff, w8
cannot say that such article would as a mat-
ter of law, restrict the power of the com-
misslO&ersl court under Article 3902, as
amended, should the facts warrant the nec-
essity for the appointment.by the shekiff
of more deputies thanwould be permitted
uuc¶er the provisions of Article 6869."
I .
In Opinion Ro.~ 0-6372 rendered by a former ad-
ministration, it is Stated:
"Th8rsfor8, in answsr to your first
~question, gouare respectfully advised
that it is our opinion that the Sheriff
of Kauf'man County can appoint a deputy
512 Hon. John C. Marburger, Page 4 (V-699)
sheriff with the approval.oS th8 commis-
alonerat court, to serve without compen-
sation.
"It Is our.Surther opinion that;a
deputy Sheriff who 18 appointed in con-
formity with the foregoing statutes and
who is serving without.compensation would
have the same authority to act in dlscharg-
ing hisofficial d\tles as any otherdeputy
sheriff appointed.
The appointment of deputies is governed by the
provisions of Article 3902;V. C.,S. and said appoint-
ments must be made in compliance with the procedure out-
lined therein. .The number.of deputies is not limit88 to
that permitted under Article 6869, V..C. S. .A cltieeh
appointed in compliance with the provisions of Article
3902 possesses.all the authority of a.deputy Sheriff as
set out InArticle M.V.. C. C..P., and has the 'right
to carry a pistol While discharging official dUti8S.
k4iicles 231 and.888, V, C..G. .P..pPOVid8.fOI!the ap-
pointment of a vspeclal deputy for theL.purpose:of exe-
cuting criminal~~process andwhile discharging his duty,
he has a right to carry a plstol. Messer v; Stats, $0
S.W. 488 and Stephenson v. State, 24gLW.:492. There-
fore, only those nappolnt8es" who.are appointed.ln com-
pliance with the.provlsions of Artic1.e 3902, V. C. S.
or who ares executing criminal process by.virtue of the
provisions of ~tlcles~23l and 888, .V,C.C.P..have the
authority of deputy sheriff and the right to carry pis-
tols. Other "appointees" have no more authority than
private Individuals.
Article 6869, V. C. 'S.,'.whichapplied
to sheriffs under the fee law, has been
superseded by Article 3902, V. C. S;, and
the Officer's Salary Law Insofar as it ap-
plies to salarg~counties. The number of
deputies which may b8 allowed the sheriff
under the provisions of Article 3902 is
not limited to the number permitted under
k'tiCl8 6869.
Deputies appointed in compliance with
the provisions of Article ,3902, V. C. 2. "'
possess ,all:the authority of regular de-
Hon. John C. Marburger, page 5 (V-699) 513
puties and may carry a pistol. IS the ap-
pointment iS not in COIIIpliSnCewith &tic18
3902, such appointees possess no more auth-
ority than a private individual Unl888 it 18
a special 'appointment under the provisions
of Articles 231 or 888, V.C.C.P., to exe-
cute criminal process.
Yours very truly,
ATTORNEY GENERAL OF TFXAS
JR:w
APPROVED: 1