,:ff()&-nev Ge+--- - I::
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Hon. Fred V. blsrldlth
County Attorney
!wzn” c$lnt Y
, ~OXziS
Drar Fir: Opinion 100. O-4372
Ro, ?harItf of
“:?mtfiia
th
Bxmlen CotiatyoWl eppoint
‘-a deputy aherWr Mthout
I. M5tponaeti0a b.eLngpaid to
,’ zQuoh,deputy,and related
msttera.
Your letter ot naeet’~dste, raqueatinq the opinion
oi~thls department mV.oertala queetium? atatad therein, Is,
In part, 8s roliowai
“Csn the ?keilff ai ration @Otinty appoint e
deputy shevlrt without aampeneetion beide.peld to
suoh dbputy? ‘Y,
,.3.stinah.Cdtityhe* a.populetIon of 38,308
$k$gto tha 1?&0~Fadsral Centaur.dy authority
12a, 9~0. 13,tha CQN~BSIQ~~~E Court iixed
the bsluziesof oounty Qffioers, ino1ud.l~ 9herFtt.
Our Oamalsaionare Court hse suthorizad and fixed sel-
aria8 iQr’~twQ~daputIaaIn tha C’harIrf*sottloa, end
thoaa appointments have been msda. One daputy rhsrirr
rbeldbp lagthe City of Tarrell, in Juetlaa Praoinat
NQ.>~;3ti,ICauWan CcGnty.
WlaJustIoe precinct No. 3 la lool*tadTerre11
Aviation, Ltd., en sirport situetwd upon lend beloag-
1% to Ksulmu!n County end being oparnted by l&j. T. ??.
Long snd assooiatae In limited pertnerehip, v&loh Is a
school for the fllr,httraining of Rrltlsh oadsts, e.nd
knoun (IS Brltieh Flight Training Sohool Co. 1. T.hls
sohool Is the reoirient Or many gretultlee from botk
the City of Terre11 end County of Kaufman. es well es
frm the Zafenso Plant Corporation. Forr,erlp,sure
.imerIoen cndeta alone Hlth the British were trained
there, but now only Rritiah. The predeoeseor in the
‘-herifr*aoffloe, fa: li:le with request fran the
aahool’a offlclals, appointed two or three deputy
Hon. Fred V. Mtridlth, page 2
sharlfra,among tha employeea of the school; these
OQ~XI~S~~Q~K were merely honorary, and married no
compen8atloa, a8 the raohoolwanted to hare swt
officers on the premises who %ould he authorized
to aot in oaae of hreaohts of the ptaea, aiaoe the
eohool la looattd out at the edge of the olty.
- "Terre11 Atiat1on, Ltd., through Ita paramnel
managar, haa now raquesttd our Yherlff to appoint
a deputy there, and rtqueating that the -ergtent of
tha Guard at the aehool be ao appointed. Our ?htrIff
attbndad the aohoal of Instruction for newly eltoted
"htriffs at Damp Yabry. and has some sort oi recolleo-
tloa that et this sohool he was edvlstd that he could
appoint no deputy sheriff Who we3 QOt paid ocmpenae-
tion oi at least fbO.00 per ronth. He atema to reoolltct
that there waa either a deofsion on this point, or an
tttorney general's opinion to this errtot, and hssi-
tatea to give t raply to Terre11 Avlatlon, Ltd., oon-
ceming their request until L.tia oorrtotly advised. If
there be tush, I would appreaiatt aitation or oopy of
oplnlon.
*I note from the provlfilonsof Art. 6869, that a
fheritf may appoint dtputIat* . . . not txoetdlng three
In the Juatlot preolnot In which la looatad the oounty
site oi auah oounty, and one in each Juatioa prtaInot....*
The City of Tame11 Is lotattd, ad well aa Terre11 Avltv
tloa, Ltd., In Juatlce preoinot Ho. 3, and the .Sharlfi
already haa oae duly oonatituted deputy, drawing monthly
ooapanabtion by salary, residing In this preolnot. I find
no apeolal aot of the Legislature wlth raapeat to deputlaa
ror the 3herIff In oountlea of a population Or 38,308,e8
la KatimrP County.
*xi the Sheriff of x8urman Gounty appointed, with
tha aanotlon and approval of the ComnissIonara Court, a.
deputy ahtrlff to sot only on tha prtmLees of Terre11
Aviation, Ltd., tiithoutoompeneetlon from the ttld Kaufman
County, and without feea Or offlot, would auah appointee
ba tuthorized to aarry a pistol and be a duly conatltuttd
poaoe orricer, hi:6sots as auoh on said prtmlsea
r):sd ba
legally performed?
Hon. Fred V. Merldltb, page 3
“(2) Is them suoh a thing as an ‘honorary’
deguty ~shirlf?*a oamnlsslon? , . . .*
Article 3902, Vel7aon'S Annotetbd Civil Ctatutea,
provides, in part!
w?ammver any distriot, oounty, -or precinot
ofrloer Jhail r6quire the sarvioerrof deputies,
assistants or clerks in the ~pclrrormanoe or hia
duties, ha shall agply to the aounty aomm.%saion-
era’ oaurt or hl8 oaty for authorl~tyto appoint
suah deputlee, eumintsnts or olarks, stating by
sworn applioetion the number needed, the positian
to be filled and the amount to be paid. . . .*
In oonneotlon with ths foregdng statute, your atten-
tion ia dlreetcd to Artiole 6869, Vernon’s Annotated Civil
Xatutes, tiich provides in part as follows:
T ?herirrs shell have the povmr, by writing,
to appoint one or nors daputiea ror their respeo-
tire counties. . . . . the number-or deputier ap-
rainted by the sherltr or any one oounty shall be
llaited to not exaaedlng three of the Justice
eeoinots in whioh in looated the oouoty site of
sooh ocunty, and one in each Justfoe ?raalnet, and
a list of these appointments shall be postad up
in a aonspiououa plses in ths clerk’s ofrice.....*
This Dapartment has ruled prior to and einoa the.
enaotment of tha qrasant oftloersl salary bill, under whioh
Ksufmsn County la now runatloning thst Artiole 6869 has been
auperasded by Art. 3902 in so far as said statutes are Zn
c0nriict. This departm@nt held in Opinion No. C-12 that
Art. 6869 has been superseded by Art. 3902 in so rar as said
SthtUteS SrS in COnfliOt. 30 quote rran Opinion So. C-12,
in part, as follows:
“Thla depsrtesnt ie not In possession of any
deiinltu dsclsi~onaffeatlng the queatl.)nat hand,
and therefore must arrive at the oonaluslcju that
Art. 6869. . . . ::ihioh
applies t ths sheriffs
under the fee law haa been super 8 eded . . . . by
Art. 3902 . . . . and by the oriieersq salary law
0r the 7tat.eor Texas.
Hon. Fred v. i,:erldlth,
;?sze1,
. It rests %rlt;lnthe discretion of
Cotxt:;,
as to ths number or deputies which the
shollldemploy.e
It is stated In the case of Tarraat County vs. hith,
81 $. “‘. (261, 537:
“The Coremissioners'Court 0811limit the number
and salary of deputy aherifis but they have no ?ower
over the nanins of the individuals to be appointed,
and are espooially :rohiblted from attempting tiny
such last nemed influenoe. Fx. I. ;:rt.3902.”
In Gpl3loo No. 3-925, zendercd by this,deoartmem, it
IS stated:
“In the case o,i‘Trammelvs. Yheltos, 45 -. . ?i9,
the relevant provisiona of Art. 6869 substantially the
sa!:eas enacted In 1989 ~ which grants authority to the
Zheriif to egpolnt deputirs ~ni limit their number nas
held to bo directory. “ueh authority as was by thla
Artlole and creviouslp at common law p.fven Co :;he
?herlrf was SJ general law supermade& end invested in
the Commissioners1 Court under the provision6 or rirti-
ala 3902, eupra. Suoh e oon8truetion as would harmonize
the two srtlolas, 6869 end 3902, supre, should ba dven
-with the later article oontrolling. rhlle said :rtlele
d6i169 seek8 to llmlt the diaoretion to be exeroised by
the Sherirr, we osnnot say thst suoh Artiofe would, as
a matter of law, restrict the power of the Comxlsoionera’
Court under Artiola 3902, a a amended, should the Sects
warrant the neoessitp for the appointment by the SheriTZ
or more deputies then would he permitted under the pro-
visions or Artlole 6869.”
It WBB held in cur Opinion So. ~-1~96 that 9 aherlrr
hea authority, ;ulththe approval d the oonmissioners court. to
appoifit a deputy to servb without any compensation. ‘?crerore, in
anewer to your rirst questicz. you are respeotiullg advised that
it Ia our opinion that the lheriii of’ ?mdman County can oscolnt
a deputy sherLrr i3lththe approval or the onmmiasioncrs’-curt, to
serve without any compensation.
Hon. Fred V. Fdderidlth,
page 5
In connection 31th the foregoing ntrtement, we
dlreot your ettentlon to our Opinion No. C-4420, wherein it
la statedl .~
*In the went a Commleaiomers’ Court authorizes
the cherirr to appoint additional deputies to aerte
without pay, the order authorizing euoh appointment
should atate that the deputies to be appointed are
to be allowed no salary, else they mlsht be eble to
reooter for the mrrloes on 8 quantufnmerit basis.
Eerrlr County vs. Nerllle (Civil Appeels) 84 3. '7.
(26) 834."
In answer to your ssoond question, you ere advised
that,it is the opinion of this department that IIdeputy sheriff
appointed to serve without oompansatlon could legally oarry a
pistol when eotuslly engaged in the disoherge of hia orrieial
duty. (Tee *irticlea485 and 484, Vernon’@ Annotated Penal Code).
The provlslons omtalhed in Article 484, 'Ternon'siihnoteted
Fenal Code, regardlog ocmpensetlon of ,!40.00,or more, per month,
is applicable to deputy oonstebles and speolal polioemen end hee
no applio~tion to e deputy sherirr.
It is our further opinion thet a deputy sheriff who
la eppoizted in oonformlty with the foregoing stcatutes and who
IS serving without oompenssitlonwould have the aem authority
to aot in dlsoherging his offiolcl duties as any other deputy
sherifi appointed.
Your third question is, “Ia there euoh a thing as
en *honorary* deputy sharirr’s oommisaion:‘*
In emwer to this pus&ion, you are adviaod that we
hate been unable to- find any statuto or oase Tertaining to
t&10 c;uestion. Wo know of no law authorizing the iasuanoe of
an *honorargw doputg rherirr’s ~omnission.
Yours very truly,