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 reservedeputy conDear Mr. McDonald: stable appointments. You have requested the opinion of this office in regard to the two questions as follows:

"The question presented,iswhether the enactment of Article 6869.1 and Article 4413 (29ai),Sec. 2A(a);by the 62nd Legislature repealed Article 484,Vernon's Texas Penal Code, or did the legislature intend for the old statute (Articles 484) to remain in operation, and therefore require a deputy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 andArticle 484, in order to carry a weapon and act as a peace officer. The second question presented is forwhat period of time does the authorityby 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 (assumingthe Court does have the authority to rescind)?' Article 6869.1 reads as follows:

"Section 1. (a) The CommissionersCourt of any county in the State may.authorize the

-6215-Honorablew. T. &Donald, Jr-, Page 2 (~-1267)

sheriff of the county to appoint reserve deputy sheriffs,or any constableof the county to appoint reservedeputy constables, who shall be subject to serve as peace officers during the actualdischarge 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 CommissionersCourt may limit the number of reservedeputy sheriffs or reserve deputy constableswho,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 additionalofficers 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 additionalofficers to preserve the peace and enforce the law. (d) Such reserve deputy sheriffs and deputy constables shall servewithout Pay but the CommissionersCourt 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 simultaneouslywith 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 filedwith 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 assignedduties; and reserve deputy constables,while on active duty at the call of the constable.andwhile actively

-6216-HonorableW/T. &lcDonald, Jr.;page ‘3 (M-1267) engaged intheir ~assigned.duties,shall,bevested 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 liabilityby reason of the appointment of any such reserve deputy sheriff or deputy constablewho-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'enforcementofficers wh&ch.mustbe 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 establishminimum physical, mental, educational, and moral standards for all reserve law enforcementofficers." Article 483.of the Texas Penal Codes provides the penalty for one unlawfully carrying arms. Article 484 of the Penal Code exempts certainpeople.from Article 483.. The pertinent portions ofparticle484 read as follows:

"Thepreceding article shallnot 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 specialpolicemanwho receives a compensation of.forty dollars or more per month for his servicesas such,officer, .and‘whois appointed in conformitywith 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 ~monthfor his services as such officer, and
-6217-HonorableW. T. McDonald, Jr., page 4 (M-1267)

who is appointed in conformitywith the statute authorizing **such** appointment.

. .(( refers only to deputy constables appointedpursuant to Articles 6879 and 6879a,Vernon's Civil Statutes,but it does not apply to a reserve deputy constable appointedpursuant to Article 6869.1, Vernon's Civil Statutes. Section l(d) of Article 6869.1 provides that such reserve deputy constables "shallserve without pay." No such restriction applies to a deputy constableappointedpursuant to Articles 6879 and 6879a. When a reserve deputy constablehas fulfilled the requirementa set forth in Section 2A (a)of Article 4413 (29aa),Vernon's Civil Statutes, such

*reserve law enforcementofficer may carry a weapon or otherwise act as a peace officer" as authorized in thatArticle. Further that part of Section l(f) of Article 6869.1 relating to reservedeputy constablesprovides that

U'

. . . reserve deputy constables,while on active duty at the call of the constable and whi3.eactively engaged in their assigned duties, shall be vestedwith the same rights, privileges, obligations and duties of any. other peace officer of the State of Texas." Therefore, a reserve deputy.constablewhile 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 concerningthe duration of the appointment, the Commissioner'sCourt may authorize the appointmentwhich will run for the duration of the constable's tenure of office or such time the Commissioner'sCourt may direct., Pursuant to Section l(b) of Article 6869.1, the Commissioner's Court may limit the number of reservedeputy constables authorized to be appointed. Once the Commissioner'sCourt has authorized such appointments, the constablemakes the actual appointment of the reserve deputy constables. 'TheCommissioner'sCourt does. not have the power to remove a person,so appointed. See Attorney

-6218-Honorablew. 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 constablethe power to make the appointment,but it fixes no definite term of office. Section l(c) of that Article provides

II

. . .suchreserve deputy constablesshall 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 authorizedby the Commissioner's Court. Since this power and authority is given by statute, it cannot be contractedaway so as to bind the constable to retain his reservedeputy in such a position for any fixed period. See Murray v. Harris, 112 S.W.Zd 1091 (Tex.Civ.App.1938, error dism.). Therefore,.areserve deputy constable is appointed for no certain time. He serves at the pleasure of the constable and within theperiod of time authorizedby the Commissioner's Court. SUMMARY Article 484 of the Texas Penal Code was not repealedby the enactment of Articles 6869.1and 4413 (29aa)S?A, Vernon's Civil Statutes,which provide,for the appointment and qualificationsof reservedeputy constables. The appointmentof deputy constables is governedby 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 authorizedby the Commissioner'sCourt.



# &i2%2=.
.’ , C. MARTIN General of Texas Preparedby Thomas M. Pollan AssistantAttorney General APPROVED: OPINION COMMITTEE
-6219-HonorableW. 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 ExecutiveAssistant NOLA WHITE First Assistant

-6220-