-_
OFFICE OF THE AT~dR~iiliY ~GENERAL OF. TEXAS
AUSTlN
GROVER SELLERS
ATTORNEY GLNLRAL
5
Honorable perry L. fonee
county Attornry
~..warie county
Austin, TeXtW
Dear
y0Ur -letter or r8-
cent data requea to savaral ques-
tiolia,rhioh PR)
ptlona ~4~ptivi&38,
olr ‘483 shall not
oonstable, or SQPS-
61 a OOlapMsdtiOA Or
r month ror hia aenloes
f# appOfAtOd in OOAfOrm-
tutee au#iho+ing woh appoint-
*spsalal COAstable* or r4eQutJ
is pafd jiC.00per. Aght by tm
keepfag order in h night olut,
nothing by the ootmty, ba legal-
ly SAtitkid to oarry a' pistol, a8 one oomiD8
within the quoted eXc9ptioA?
2. Eay suoh *special constable-, or *deputy
constable* be lawfully paid by a private ‘indi-
vidual,’or must he receive his oom?ensation as
such oifioer from the oouiztyor tbrougfifees of
orfice?
.
‘.
Honorable Parry L. JOANN, Paw. 8
5. II it legal for a de uty oonetablr to ao-
oept money for keeping order f A a night olub dth-
Cgt tUrA.bg said money into the GouXty Treasury,
even though he giver the raid night olub more of
blr tlms and attention than is required in the
00UrBa Of hlg dutier a6 deputy constable, ard al-
though he ia paid nothf~g by the oouaty?
4. Otiy ona dapputyoonstable in Trarir
aountp 14 reoelring a salary from the oounty ror
hlr remloe8 aa suoh ofrloer. xmerer four ?r e-
oial deputy ooAstablesa have been appointed a f+
wove& .by the Oomniadonerr* court, in’aooord-
am* with.Artiole 6879a, T@rnont8 Annotatd Uiril
Statutea, said deputy ooonatablaereoefring no
salary, although they do reoeits atore than forty
dollars per month from private iAdirldual.8to
keep order in night olubs. Are these *6Jeolal
deput oonstablesn legally permitted to oarry
Plato r8, under Article 484, supra?
5. Assting that operators of a drug StOra,
groowy store or other burrfaeoemust take large
suas of aoney to the bank, and a6 a praotioal mat-
ter the sheritr~r department nor the polioe dr-
paz&eAt OaAAot rovids aA armed eaoort, MY tuoh
oparatorr or the!r eaployeeeslegally am them-
soltee with pietola for the purpose of prqteotiw
the money while it is so oonveyed to the bank?
6. Article 48s of ,the Peaal Code OOAdetDnS
th6 aarryiing0r arms in oertaln aeserablise. I8
a'aight olub where,people assemble to drink beer,
daAoe, suoh a plaoe ot assembly or
aAd 8onti3tlmes
amusement as 'tooome Wer the provisions of suoh
AlMole?
7. KOUld the type oi offioer referred to iA
queatlon 1, above, ooffie
within the provisions Of
Artiole 485 ii he carried a pistol in a llrghtolub
suah as is desoribed IA questiOA 61
8. Could even the Owner OS suoh.tight olub,
a8 desoribed in question 6 ,legally arm himself
or ..~
an agent to keep order iA suoh 'ep assembly?
]
Honorable Parry L. Jonea, Page 3
- 9. 18 a hotel lobby a plaoa of assembly aa
oontamplated by Art1010 485, Penal coda?
10. It the aAnwar to question 9 ia in the
aiflrrnatlra, oould the hot.1 management legal1
an a hotel deteotim to keep order In ruoh loi;
by?
Your iiret quertloa lnrolve8 s8varal.oonaIdarations.
In the flrat plaoe you IWfOr to a rspeolal OOArtablow. What
18 a lrpeoial oonrtablam? *a statute raiarra to (Art. 484,
Penal Bode) 8~aoIiIrr a *aDeolal polloeaan~ ~bue "daputr OOA- V~ ti?)
#tablo*.
Mext, 10 note tb language of the Artlolr under
ooAsid8rat~oA. Aa OOdiiha and AOw EitOAdiAgUpOA Our Stat-
ute books as Article rL84,Penal Coda, the partinant provi-
alons read a8 r0110w8:
npho preceding artiole shall not a ply to
.. .. .. any ofrloar IA the aotual $P soharge
eaoe ofrloer
Offf olal duty, nor to the oarrying or
OS No off Of arms
On one'9 own pramI or plaoa of bualmss,
bualmas. nor
to peT;~'I~f
t0 pa~;i;tf tri:;;;z,
"?;;a;~, AOr
nor-toto any deputy oonatable,
ooiMable,
or ag PO who reoelvae
reoeitae a oompansatlon
of forty aollara or more par month Sor hi8 88x-v-
'ioes at3 euoh ofrloer, aAd who Is appointaa.in oon-
'Iormlty with the statute8 authorlzlng Buoh appolnx-
mant; l . .” ( El!lp na a lc l Our 8. )
Prior to the oodlrioatlon of 1935, the above artl-
018 war known aa Artiole 476 or the Penal Codr of 1911; It
was amended by the Fourth Called Sessi~n‘Of the Thirty-fifth
Leglalaturb (Acts 1918, Fourth Called Sass. C. 91, 31; 19
0. L. 1941, and a8 than raanaotad read a8 iollowe:
*The preoadlng artiola shall AOt apply to
any paaoe ofrloar In the actual discharge
&*hia orflolal duty, nor to tha aarrying of anus
OA OA8'8 Own pr8miS9s Or place Of bUsIAaS8, nor
to persona travalllng provided. this arcaptlon
ahall not apply to any deputy constable, or epe-
olal policeman who does not racalva a OOmpansa-
%lon of forty dollars or more per month i'or his
earvloas aa ouch officer, and who la not appocnted
‘in OOArOrmity wlth tha statutes of this Stat8 au-
thorlzlng such appolntmaat; . . .v (Emphasis ours.)
I.:,:
Honorable Perry L, Jones, Page 4
As reoodlfled in 19e5, and an it stand6 today, does
the statute require & deputy aonsteble, in order to oome wlth-
in the exoeption, t0 *reoelve a oompsnsatlon of forty dollars
or more per aonth for hi8 servl~ea?~
Another lnoldental quretlon oonoerns the authority
o f a privateo itizento e& p lo y
eith e ra lapeoial* or a *de-
puty ooastablea to keep order la a nlght olub, and to pay the
ma of $4.00 per night (or any sum) ror suoh re~loee.
The only referrnoes we find in the statute8 to as e-
oial oonstablerw, ae suoh, are round in Artloles 108 and 1I&-
-e Oode of Criminal Prooedure. They may be appointed by
any magistrate, only to *suppress rlotr, unlawful aesemblier
and other disturbances at eleotions*; when duly appointed in
aooordance with th4 provlslona of the olted artloles of the
Code, they ham all the power6 Of peaoe Oifioeks generally,
for the limited purpose tor whloh they are appointed. Con-
zales v. state, 55 Tex. Cr. R. 430, 110 S. 8’.740.
We find no allusion in the Codes to the term *e
olal deputp oonstable. The Leglelature has attempted to
thorize *apeoial-deguty aherlrrsr In qertaln counties (Art.
iii121-3, 12 ‘Vernon@e Annotated cfvll Statutea)t but we rlntl
no leglelative eftort to orsate or authorize suoh apeoial
I otrloers to serve with or under oonstables,
We do know that there is provlslon ror the deslg-
nation or persons other than regular oitloere to serve pro-
oess and warrants or arrest in certain oases of emergenoy
and on at leaat one oooaslon the
(Arts. 231, 888, c. c...;p..);
person 60 named was denominated a *deputy oonstablen (Ste-
phenson V. State, 93 Tex.’Cr. R. 578, 249 9, W, 492). The
cited case holds that gftlzen$IappOint8a under these statutes
oan lawfully oarry a pistol while 80 engaged. Bowever, we
do not thlnk these statutes are pertinent to your problem.
ArtiOh 484, supra, speoiflea tba exenptlon rrom
prosecution ior unlawfully boarlng arms, lnsotar as the ot-
ricer here alluded to 1s oonoerned, to a *deputy oanatable”.
Irrespective oi the applicability of the clause, *who ie ap-
pointed in conformity with the statutes authorizing suoh ap-
pointment*, as contained in such statute, we think such would
have been contemplated. Xn other words, where the artlole
uses the tern *deputy constablee, one who h.asbeen duly and
legally appolnted, qualified and is aotlng as suoh, is oon-
tesplated, and is intended to have the benefit of the law.
45
Honorable Ferry Lo Joneg, Page, S’ ..,A
_.:
ALthough Article 484 Penal code, 1925, supra,
rrtanaingalone, may be rusoeptfble ot construotlon as to
whether- the undereoored portion with referenoe to reoei~ing
compensation ol forty dollars or more.per month ir applloa-
ble to a deputy oonstable, we think the 1eg;islatlvehistory
of the act olearly indloater that it 1s. Notesthe under-
soared portloa or the amendment 0r 1918, suqra. See Stephen-
son vr State, 93 Tex. Or; R. 570 249 5. WI 492, a~pra, where-
in it is ‘pointed out that the evident purpoee oi the amendment
was to dlsoourage a5l prevent the useless add proalrououa
oarrylng of aims under the guleo of speoolaldeputies. Also,
;;in~~~O-b372, Attorney deneral of TexaC, approved~January
1 l j,
‘...
“:
we hereby~‘reiterateth’elanguage of our raid Opln-
ion O-6372:
*The provisions contained in Arti 484,
Vernon’s Annotated Penal C~ode,regarding compen-
aatlon or )40.00, or more, per month, is appll-
oable to deputy oonetablea and speolal po$ioemen,
. . .*
In our Opinion No. O-773, to which you referred in
your letter submlttlng the above questione, It Is stated1
“. . . it la the opinion ot this department
that a dep’utysherlit who preserves the peaoe at
a publio oelebratlon and danoe would be .aoting
within the scope of hle ottioial duties and would
not be entitled to receive extra aompeneation from
the oounty or iron thtra pereona, a different, or
a greater or less oompensa>lon ror his ofrloial
servloes than that whloh has been presorlbed by
law.*
In the ease of the question as submitted by YOU,
we express our opinion that either a *apeolal* or ndeputyW
constable, oonoedlng his appointment to be legal, would be
charged with the oi’flclalduty to preserve tinepeace, ii
Freseot 11:a night club, and as such officer, he uould not
be authorized to receive .,;4.00 a riight, nor any otbr sum
as compensation from an individual “for keeping order in a
Light club”. 34 Tex. Jur. 534, 1117, and casea olted. The
compensation of public officers must be fixed by the Legls-
izture or by some governi% body exptesely authorized so to
First Saptist Church v. City of acrt S’orth, (Tex. Come.
$) 26 2, :;, (2d) 196, afflroing judgment (Tex. Clr. App.)
,,a”
3. -2, (26) 130. I
1
~,’ 46
Honorable perry L. hones, page 6
In view of our erpreseioru above, wfilshwe bellerr
are amply supported by the authorities, ou are aahba that
it 18 -our opinion that a nepeoial oonsta1:lea or la ep uty
eoA-
stable* keeping order in a night olub urder the oiroumstanoes
recited ia your firat uestion, a8 a mtter or law, would not
oome within the q&ept Pon8 and exemptions preearibed by Art-
iale 484, Eenal Q&W Bupra, ‘should he be prodeeded against
for unlawfully’o$Zrppingthe aI& prohfbltod by Artlolr 483,
Penal Code; ‘.
Y0Ur seOOnd qUS8tiOA has been partially’OOhelaerea
above, For ofrioial duties,ruoh oMioer would not.be OP.
titled to receive aAy comQonsatfoA other than that,whleh has
beeA protiaea by law. 84 Ter. Jurr 534, mpra. pr any
other duties, AOt ooming rithtn the soope of a p-04 ofiieer,
oi oourse, thp oorapensationwould be a matter 0r privatr OOA-
traot. But rhen a disturbanoe of the peaoe beoame imminent
or aotual, if’.an ortioer, one la oharged immediately with a
apeoifio duty to preserve the peaoq. See Artlo 37, Code
of Criminal Frooedure, 1925. Xhile it is tiue that ArtiOle
38, c. c. P., in derlnlng peso8 oiri0ers statsa that a OOA-
.atable is suoh and’omits any referenoe to a deput eonatable,
in ‘#&laon V. State, 117 Tex, Or. H. 63, 38 9. B. T26) 733,
it 1s pointed out that @iale 36 waa enaoted lor\gprior to
tha time that provlelon was made tor the appolptmant of a0-
puty oonstabler, and the ease oontalne this st,atetintl
1. . . We think it was the intention or the
Legislature iA providing for the appoidtment of
deputy oonstables to impose upon suoh Ofricer
ths duties required or peace officers. ft each
were not the oaae, the oitil statutes to tiloh
referenoe has been made are without eifioaor.
.* (ReterrlAg to the statutes providing ior
&uty oonstabler.)
Your third questlon le also partially covered by
the dl ecusdon above.
However, merely because one 1s a deputy constable,
he would not be re-,llired
to give all of his tine to the duties
or the ofrice which he holds. In our Rplnlon No. O-5091 it
was held that a oofietiblaon a salary basis could draw his
Salary as constable,;although he was also employed by a Rail-
road as a trainman. ‘It is well known that many peace offioers,
eepaolally precinct ofricere, must eutiplemanttheir offlola].
honorable p*rrp 1. Tonea, Pa&‘9
lAoome8 with earnLAg derlrea from non-governaaeatalaotlvl-’
tieo, 4116 80 10% a8 the hold themselves available at all
tlmeer for whatever otiioIal dutisr that mi ht.oome up, r8
8ee DO legal obstaoler to prevent their a0 & ~g 60, pr0eaea
suoh employMAt does Aot antail aotlvitier inooasistent with
theit offioial dutl68. xA OSOO Oi AeeleOt Of OffiOiai duty,
the law provides a remedy. se Title 100, Revlsod 01~11
statute8 ~r’iwas, 192s; l 0ffidert--~eAoval or*, 8.Aa ease-
oially hrtiole8 S970; b9-73,et 8~3~
AS Jour question is stated, v~ do not believe the
deputy ooA0table 00ua legally be paid by private inairiaualr
order iti~ralght olubv. xi. a8 already 8tated
eputy ~eonstablr ma8 pmseat 111a atLight olub where
a dli&rbanoe aotually OOb~tieil or w&8 i~$If@fag he~~d~l4
have dAjOiJ@a on him byelaw a.*fear and ilirtilwt iutf t8 sot
in hi8 Official Oairacity‘t0 preserve the peaOOr If the OOULL-
ty of hia appolntmeat, -and wherein the night olub lo rltuated,
payr it8 preotnot of’rioerson a salary basis, suoh beputy
rould be bound, IA event 0s arreat aa eoAvlotioA 0s any of-
fender, to collect the rtatutory fees for hir aervioe8, from
the defeodaat, and through his prinoipal, t& constable, to
remit said ieet# to the Ofricerr~ Salary yund of the oouaty.
If the oounty hapkened to be paying its preoinot orrioera ,on
A tee basis, the prinoipal, Constable, would be sntltle4 to
the fee8, subjeot to aodounting at the 8na or the year. In *
Aeither event would the operator at the Aight 01~8 be liable
for tb8 fee (unlem he happened to be the ooavioteb aerenaant),
nor ooula the orrioera, or the ooucty, prooeed against him
to oolleot it.
1f the OOUAty pays it8 preolnot orrtaers OA r 8al-
ary basis and the oommisaiollbro* court authorizer the appoint-
ment and aooepta the servioeu of a deputy oonstabla, and flxe8
no salary ror auoh otrloer, he ie not legally entitled to
look to private souroes for oompensatiod for periorming his
otriolal duties. The zuthod of a polntment e ml the ooapensa-
tion, if any, to be pala auoh offE oera la fixed in .Wtioles
3902 and BBWa, Varl;on*s ?¬ated Civil Statutes of Texas. ‘
Xith reference to such aalarles, it la noted that the law
~ovides a mximm or *oeilingn bayor&d+.vhfoha oollabgor pre-
oinot ofricer may net ~50,but d&s not presorlbe a rninlm~~~
or ~rloorv.
It, for performing ah offioial duty, the deputy
constable does oolleiot compensation rros, a private source,
Ronorablr Perry L. Joma, Page 8
ruch aa a night olub operator, he Is doing that whloh Is um
authorlze?land Illegal, but whatever may be the outoome of
any proceedings brought against him for suah aonduot, the
oounty cannot oollsot the money and therefore the offioer
oonoerned aould noC be oompelled to “turn said mouey into
the Oounty Treasu+.
YIth refersnoe te your fourth questloo, we again
note the expression or term aa eoial de uty oonatablea~.
see ow diaouesion herelnabov8-Tal thL
A@ the question is stated, we express the oplnlon
that the pUQO4ted OfiiOtW0 in qUfJ8tiOfIa0 ~0% OOIbIO
Within
the forty dollar (#40.00) ooupenaation exemption, Thir for
the reason* also dlaouased above, with rererenoe to prlv6te
employnent 40 perform offioial duty.
It will not be Ino&bent on,you, as oouaty attorney,
to negative or otherwise antlolpate defenses, but we feel it
proper in thle oonheotion to rerer you to the line of case.8
be.aringon the defense that the aoouaed believed or had rea-
son to believe that he was an oftiaer and had the rfght to
carry a pistol. gee ior example, the Oases of Lyle T* State,
21 Tex. cr. R. 153, 17 3. iV.4251 Cferoll VI Sate, Terr Cr.
App., 57 3. V. 94; Blair v. State, 26 Tex. Or. x* 387, 9 3. w,
890 and Barnett v. State, 89 Texr Cr. RI 48 229 2. We 619.
However, a mistake of law Is no defe1188,ad in-oases whiah
we feel more almllar to the one0 of whloh you Inquire, appll-
oatlon ot the aorreot prlnolple will be found in fohnson vb
Sate, 73 Tex. Cr. W. 133, 164 3. V. 833, Patton v. 3tate,
61 ~61s.cr. R. 352, 135 9. #,- 556; Ransom 'I.State, 73 Tax.
Cr. R. 442, I.653. s, 932 and Gandara V. state, 94 Tex, Cr.
R. 535, 252 3. 6. 160.
In view of the last olted caae~, we are lnallhed ta
the view that in a case suoh as you mention, say such defense,
if interposed, would be held inagplioable and inadzlssible
a8 a Viatake of lnww.
you fifth question is answered in the ne,