November 20, 1972 

Honorable W. T. McDonald, Jr. 

County Attorney 

Opinion No. M-1267 

Brazes County Courthouse RFi: The effect of Articles 

Bryan, Texas 77801 6869.1 and 4413(29aa) 

6 2A, Vernon's Civil 

Statutes upon Article 

484 of the Texas Penal 

Code, and the duration 

of reserve deputy conDear Mr. McDonald: stable appointments. 

You have requested the opinion of this office in regard to 

the two questions as follows: 

"The question presented,is whether the 

enactment of Article 6869.1 and Article 4413 

(29ai), Sec. 2A(a); by the 62nd Legislature 

repealed Article 484, Vernon's Texas Penal 

Code, or did the legislature intend for the 

old statute (Articles 484) to remain in operation, and therefore require a deputy constable 

to comply withboth Article 6869.1 and Article 

484, in order to carry a weapon and act as a 

peace officer. 

The second question presented is for what 

period of time does the authority by the Commissioner's Court extend, ie: (1) annually, (2) 

during the term of office of the constable, or 

(3) until the Commissioner'sCourt rescinds 

their authority (assuming the Court does have 

the authority to rescind)?' 

Article 6869.1 reads as follows: 

"Section 1. (a) The Commissioners Court 

of any county in the State may.authorize the 

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Honorable w. T. &Donald, Jr-, Page 2 (~-1267) 

sheriff of the county to appoint reserve 

deputy sheriffs, or any constable of the 

county to appoint reserve deputy constables, 

who shall be subject to serve as peace officers during the actual discharge of their 

official duties upon call of the sheriff, 

in the case of deputy sheriffs, or of the 

constable, in the case of deputy constables. 

(b) The Commissioners Court may limit 

the number of reserve deputy sheriffs or 

reserve deputy constables who,may be appointed. 

(c) Such reserve deputy sheriffs shall 

serve at the discretion of the sheriff and may 

be called into service at any time the sheriff 

considers it necessary to have additional officers to preserve the peace and enforce the law; 

and such reserve deputy constables shall serve 

at the discretion of the constable and may be 

called into service at any time the constable 

considers it necessary to have additional officers to preserve the peace and enforce the law. 

(d) Such reserve deputy sheriffs and deputy 

constables shall serve without Pay but the 

Commissioners Court may provide compensation 

for the purchase of uniforms and/or equipment 

used by.such individuals. 

(e) Such reserve deputy sheriffs and deputy 

constables, prior to their entry upon duty and 

simultaneously with their appointments, shall 

file an oath and bond in the amount of Two Thousand Dollars ($2,000), payable to the sheriff, 

in the case of reserve deputy sheriffs, and 

payable to the constable , in the case of reserve 

deputy constables, and filed with the county 

clerk of the county in which.said appointment 

is made. 

(f) Such reserve deputy sheriffs, while on 

active duty at the call of the sheriff and while 

actively engaged in their assigned duties; and 

reserve deputy constables, while on active duty 

at the call of the constable.and while actively 

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Honorable W/T. &lcDonald, Jr.;page ‘3 (M-1267) 

engaged intheir ~assigned.duties, shall,be vested 

with the same rights, privileges, obligations 

and duties of any other peace officer of the 

State. of Texas. 

Sec. 2. The county and/or the sheriff or 

constable shall notincur any liability by 

reason of the appointment of any such reserve 

deputy sheriff or deputy constable who-incurs 

any personal injury while serving in such 

capacity.* 

Section 2A of Article 4413 (29aa) reads as follows: 

(a) The Commission on Law,Enforcement 

Officer Standards and Education shall establish'minimum training standards for all reserve 

law'enforcement officers wh&ch.must be fulfilled 

before a person,appointed as a reserve law enforcement officer may carry a weapon or otherwise act as a peace officer. 

(b) The Commission shall establish minimum 

physical, mental, educational, and moral standards for all reserve law enforcement officers." 

Article 483.of the Texas Penal Codes provides the penalty 

for one unlawfully carrying arms. Article 484 of the Penal 

Code exempts certain people.from Article 483.. The pertinent 

portions of particle 484 read as follows: 

"The preceding article shall not apply to 

a person in actual service as a militiaman, 

nor to any'peace officer in the. actual discharge of his official duty,~ . . . nor to any 

deputy constable, or special policeman who 

receives a compensation of.forty dollars or 

more per month for his services as such,officer, .and‘who is appointed in conformity with 

the statutes authorizing such appointment;. . ." 

The provision that Article 483 shall not apply 

II . . . to any deputy constable. : . who receives, a compensation of $40.00 or more per 

~month for his services as such officer, and 

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Honorable W. T. McDonald, Jr., page 4 (M-1267) 

who is appointed in conformity with the 

statute authorizing such appointment. . .(( 

refers only to deputy constables appointed pursuant to Articles 

6879 and 6879a, Vernon's Civil Statutes, but it does not apply 

to a reserve deputy constable appointed pursuant to Article 6869.1, 

Vernon's Civil Statutes. Section l(d) of Article 6869.1 provides 

that such reserve deputy constables "shall serve without pay." 

No such restriction applies to a deputy constable appointed pursuant to Articles 6879 and 6879a. 

When a reserve deputy constable has fulfilled the requirementa 

set forth in Section 2A (a) of Article 4413 (29aa), Vernon's Civil 

Statutes, such 

*reserve law enforcement officer may 

carry a weapon or otherwise act as a peace 

officer" as authorized in that Article. 

Further that part of Section l(f) of Article 6869.1 relating to 

reserve deputy constables provides that 

U' . . . reserve deputy constables, while 

on active duty at the call of the constable 

and whi3.e actively engaged in their assigned 

duties, shall be vested with the same rights, 

privileges, obligations and duties of any. 

other peace officer of the State of Texas." 

Therefore, a reserve deputy.constable while on active duty comes 

within Article 484 of the Texas Penal Code which provides that 

Article 483 shall not apply 

"to any peace officer in the actual discharge of his official duty. . ." 

In response to your second question concerning the duration of the appointment, the Commissioner's Court may authorize 

the appointment which will run for the duration of the constable's 

tenure of office or such time the Commissioner's Court may direct., 

Pursuant to Section l(b) of Article 6869.1, the Commissioner's 

Court may limit the number of reserve deputy constables authorized to be appointed. Once the Commissioner's Court has authorized such appointments, the constable makes the actual appointment 

of the reserve deputy constables. 'The Commissioner's Court does. 

not have the power to remove a person,so appointed. See Attorney 

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Honorable w. T: McDonaldi Jr&t Page 5 (M-1267) 

General of Texas Opinion O-7081 (1946). As to the individual 

appointee, Article 6869.1 confers upon-the constable the power 

to make the appointment, but it fixes no definite term of office. 

Section l(c) of that Article provides 

II . . .such reserve deputy constables shall serve 

at the discretion of the constable. . .'I 

and as such, both the appointment and tenure are discret5onary 

with the constable, the tenure being subject to the space of time 

authorized by the Commissioner's Court. Since this power and 

authority is given by statute, it cannot be contracted away so 

as to bind the constable to retain his reserve deputy in such a 

position for any fixed period. See Murray v. Harris, 112 S.W.Zd 

1091 (Tex.Civ.App. 1938, error dism.). Therefore, .a reserve 

deputy constable is appointed for no certain time. He serves 

at the pleasure of the constable and within the period of time 

authorized by the Commissioner's Court. 

SUMMARY 

Article 484 of the Texas Penal Code was not 

repealed by the enactment of Articles 6869.1 and 

4413 (29aa) S?A, Vernon's Civil Statutes, which 

provide,for the appointment and qualifications of 

reserve deputy constables. The appointment of 

deputy constables is governed by the provisions 

of Articles 6879, 6879a and 4413 (29aa) 92. 

Reserve deputy constables are appointed for 

no certain time but they serve without pay at the 

pleasure of the constable and within the period of 

time authorized by the Commissioner's Court. 

&i2%2=. .’ , 

C. MARTIN 

General of Texas 

Prepared by Thomas M. Pollan 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

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Honorable W. T. McDonald, Jr., page 6 (M-1267) 

Kerns Taylor, Chairman 

W: E. Allen, Co-Chairman 

Jay Floyd 

Ben Harrison 

Bob Lattimore 

David Longoria 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFREDWALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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