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TheAttorney General ofTexas

JIMMATTOX **Attorney** General December29. 1983

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**cewl eullsl~**  **P.**0.Box

**12545** ***uaun. TX**  **7871% 2545**  **m?l47sE41 T.bx**  **ews74.1j(l7** Tabulpbr**512J475am** Hooorablc RayKell6r ctlairman CommitteeonLavEnforclmeut Texas Eouse of Representatives P. 0. Box2910 Austin. 

### Texas 78769
**714****J*ckwn.** **sun4 700**  **tblbh lx**  **752mA506 214n424044** 

**1001 Terar.** **sun. 700**  **Hourton. lx.**  **77002-2111 7l2i222.5am** 

**4200 N.** **Tefafh. Sulb**  **S McAllm.**  **TX. 7550%15afi**  **512mB24547 :** 

An Equ*l ODporrunnp Afflrm.IlW Acflon Empfoyw **Opinion No.**  34-102

**lb?:** Whether a coaatable or sheriff mayappoint full-time deputies who receive no cow pensation Dear Repreeentatlve Keller:
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 apeace officer by acity or a countywhowill receive no compensation muat nevertheless perform some legitimate law enforcement dutiee. It is not a proper purpose for a deputizing 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 maybe .deputired as a peace..officer often trained, educated and certified soften at public expense solely 

### toenable that person to secure private employmentin 6 (Iecurlty related fi6ld. See JM-57 (1983). ThePrivate Investigator6 and Private Security Agcie6 Act **m6kea an**  **exception** 

### from **its** licensing requirements for aaperson whoha6 full-Mm6 employmentas a peace officer.” :.V.T.CiS. art. 4413(29bb). 

### ‘)3(a)(3). In this opinion welimit 

### ourinswer’to,the simple **question** of:whether speace officer mum rcceivc compeoePtion. Wedo:not sddre66 the una6ked questions ,:concerning the legality :oz liability vhicb mighty-ari66 

### fromthe practice-of -permitting p66ce officers to **UtiliZ6** public property and **suthority .in**  the **pursuit** of **personal** snd **private gain**  

### in **connection** with 

### employmentinthe private 6ector. 

### .Cf.V.T.C.S: art. 4413(29bb), - C28(d).
.. 1)
A county maynot be required to pay ~deputy peace officers in accordance with a binding salary c’lassiflcation schedule. Article 12699, V.X.C.S.. amendedthis 

### ,year; **Acts** 1983. 68th Leg., ch. 433. **at** 2632, requfres **counties** of morethan 75.000 population to

**6et up**  classifications in the Sheriff ’6

. . . [department.] providing for dutieo under suchHonorable KayKeller - Page 2 (Jn-102)

classificationa and salary for each classification; 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 suchperiod as heperforms such duties. Furthermore, article 12699. as amended, provides for a county wide vote uponapetition 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 

### ofacivil service system within the sheriff ’s department follovlng a favorable vote amongthe department’s employees. See **Acts 1983,**  **68th** Leg., ch. 570. at 3410. Thecivil service commlesl~may adopt rules andregulations relating to the classification of andbenefits 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 

### incounties 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 

### Inthe sheriff ’6 office. Hovever, the statute applies only to “full-time paid employee[s].” Id. 13(2). Deputies whoare paid are required to be compensated onabasls substantially comparable to the private sector. Id. 14. Acounty wide election is required to adopt the provisions 0Grticle SlS4c-1. Id. 15(c). See Commissioners’ Court..,of_,..

El Paso 

### Countyv. El Pax County Sheriff ’s Deputies Association; 620S.W.2d 900 (Tex. Civ. App. - El Paso 1981,writ ref ’d n.r.e.). Eachposition 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 

### ofpeace officers. See Gonzales v. State. 110S.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 moredeputies for their respective counties. to continue in office during **the** pleasure of **the** sheriff. whoshall have power and authority to perform all the acts and duties of -\

p. 429Honorable RayKeller - 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. Thesheriff 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 mayappoint Deputiee in accordance with the provisions of Section 2of this Act. 6ndeach 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 theDeputy or Deputies requested in order to properly handle the business of his office originating in the Precinct in which such Constablc ha6been elected giving the nameof 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 madewithout 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 maybe appointed pursuant to articles 6869.1. V.T.C.S. The coa4ssioner6' court is entitled by the statute to limit the numberof 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 wasprohibited from.. I Honorable RayKeller - Page 4 (.j&lD2)

compensating reserve peace officerrr). **Acte** 1971, 62ndLeg., 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 onLawEnforcement Standard6 and Education. V.T.C.S. art. 4413(29aa). This statute requires testing and training **for** physical andmental fitness. l4inimunstandards for legal education andweapons training are required. This law does not require peace officers tobc paid.Article 3902. V.T.C.S.. is the general statute **providing** for the appointment of ssslstants anddeputies for **county** officisls. Seealso 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 a6follow:

Whenever anydistrict. 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 amountto be paid

. . . . said court shall mak6 its **order** authorizing the appointment of such deputies, assistants, andclerks 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. Uponthe entry of such order th6 officers applying for such essi6tants. deputies or clerks shall be authorized to appoint them.


### SeeRenfrov. Shropshire, 366 S.W.2d 688 (Tex. Civ. App. - Rastlsnd 1978, writ ref'd 0.r.e.). Article 3912kauthorizes 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. 431Honorable RayKeller - 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
TOMGREEN First Assistant Attorney General DAVIDR. RICHARDS Executive Assistant Attorney General Prepared byDavid Brooks Assistant Attorney General APPROVED: OPINIONCOMMITTEE Rick Gilpfn. Chairman JonBible David Brooks

. Colin Carl **SuEan** Garrison JimWoellinger NancySutton

I _I*