‘. ’ .” ’ 

The Attorney General of Texas 

JIM MATTOX 

Attorney General 

December 29. 1983 

supwma cewl eullsl~ 

P. 0. Box 12545 

*uaun. TX 7871% 2545 

m?l47sE41 

T.bx ews74.1j(l7 

Tabulpbr 512J475am 

Hooorablc Ray Kell6r 

ctlairman 

Committee on Lav Enforclmeut 

Texas Eouse of Representatives 

P. 0. Box 2910 

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 may appoint 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 a peace officer by a city or a county who will 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 may be .deputired as a 

peace..officer often trained, educated and certified soften at public 

expense solely to enable that person to secure private employment in 6 

(Iecurlty related fi6ld. See JM-57 (1983). The Private Investigator6 

and Private Security Agcie6 Act m6kea an exception from its 

licensing requirements for aa person who ha6 full-Mm6 employment as a 

peace officer.” :.V.T.CiS. art. 4413(29bb). ‘)3(a)(3). In this opinion 

we limit our inswer’to,the simple question of:whether s peace officer 

mum rcceivc compeoePtion. We do :not sddre66 the una6ked questions 

,:concerning the legality :oz liability vhicb mighty -ari66 from the 

practice-of -permitting p66ce officers to UtiliZ6 public property and 

suthority .in the pursuit of personal snd private gain in connection 

with employment in the private 6ector. .Cf. V.T.C.S: art. 4413(29bb), 

- 

C28(d). . . 1) 

A county may not be required to pay ~deputy peace officers in 

accordance with a binding salary c’lassiflcation schedule. Article 

12699, V.X.C.S.. amended this ,year; Acts 1983. 68th Leg., ch. 433. at 

2632, requfres counties of more than 75.000 population to 

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

[department.] providing for dutieo under such 
Honorable Kay Keller - 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 

such period as he performs such duties. 

Furthermore, article 12699. as amended, provides for a county wide 

vote upon a petition 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 of a civil service 

system within the sheriff’s department follovlng a favorable vote 

among the department’s employees. See Acts 1983, 68th Leg., ch. 570. 

at 3410. The civil service commlesl~may adopt rules and regulations 

relating to the classification of and benefits 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 in counties 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 In the sheriff’6 office. Hovever , the statute applies only to 

“full-time paid employee[s].” Id. 13(2). Deputies who are paid are 

required to be compensated on abasls substantially comparable to the 

private sector. Id. 14. A county wide election is required to adopt 

the provisions 0Grticle SlS4c-1. Id. 15(c). See Commissioners’ 

Court.., of _,.. El Paso County v. El Pax County Sheriff’s Deputies 

Association; 620 S.W.2d 900 (Tex. Civ. App. - El Paso 1981, writ ref’d 

n.r.e.). 

Each position 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 of peace officers. See Gonzales v. State. 110 S.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 more deputies for their respective 

counties. to continue in office during the 

pleasure of the sheriff. who shall have power and 

authority to perform all the acts and duties of -\ 

p. 429 
Honorable Ray Keller - 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. The sheriff 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 may appoint Deputiee in accordance with 

the provisions of Section 2 of this Act. 6nd each 

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 the Deputy or Deputies requested 

in order to properly handle the business of his 

office originating in the Precinct in which such 

Constablc ha6 been elected giving the name of 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 made without 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 may be appointed pursuant 

to articles 6869.1. V.T.C.S. The coa4ssioner6' court is entitled by 

the statute to limit the number of 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 was prohibited from 
. . I 

Honorable Ray Keller - Page 4 (.j&lD2) 

compensating reserve peace officerrr). Acte 1971, 62nd Leg., 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 on Law Enforcement Standard6 and Education. V.T.C.S. art. 

4413(29aa). This statute requires testing and training for physical 

and mental fitness. l4inimun standards for legal education and weapons 

training are required. This law does not require peace officers to bc 

paid. 

Article 3902. V.T.C.S.. is the general statute providing for the 

appointment of ssslstants and deputies for county officisls. See also 

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 a6 follow: 

Whenever any district. 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 amount to be 

paid . . . . said court shall mak6 its order 

authorizing the appointment of such deputies, 

assistants, and clerks 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. Upon the entry of such order th6 officers 

applying for such essi6tants. deputies or clerks 

shall be authorized to appoint them. 

See Renfro v. Shropshire, 366 S.W.2d 688 (Tex. Civ. App. - Rastlsnd 

1978, writ ref'd 0.r.e.). Article 3912k authorizes 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. 431 
Honorable Ray Keller - 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 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by David Brooks 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpfn. Chairman 

Jon Bible 

David Brooks . 

Colin Carl 

SuEan Garrison 

Jim Woellinger 

Nancy Sutton 

I _I*