JIM MAnOX Attorney General

Telex 91om74.1397 Telecopier 51214750266

714 Jwkson, Sulte 700 oaib,Tx. 7S2024S96 2lu142.9944

4924 Alberta Ave.. Suite IS0 El Paso. TX. 79903.2793 915M3-344

1001 Texas, Sulte 700 liouston. TX. 77w2-3111 71-

SW Broadway, Suite 312 Lubbock, TX. 79401.3479 Sw747-5239

uo8 N. Te”th. Suite 9 McAllbn, TX. 79591-1995 512m92.4547

200 MSh plaza, suite 4w San Antonlo, TX 792052797 512l22Sa91

An Equal OpportunItyI Afflnnatl~ ActiOn Employer 

## The Attorne’y General of Texas
Elarch 31, 1986

Eonorable

Dan 71. l)ent District

Attorney P. 0. Box 400 Hillsboro.

Texas 76645 ~ini0l.i NO. J&f,62
Ret Whethera municipal police officermay serve warrants for a fee
Dear Mr. Dent:
You ask whether members of the regular,police force of a home rule city may legally~'serve arrest 'warrants

during their "off-duty" honrs es mewherself a reserve

police force and wbetber theymay retain a fee for such "of'f-duty" service. The policeofficersof a home rule city are peace officers whose duty it is "to preservethe peace within [their]jurisdiction."See Code Grim. Proc. arts. 2.12(4), 2.13; V.T.C.S. art. 999. A peace officer'sduties include the semice of arrest warrants. See Code Grim. Proc. arts. 2.13, 2.16. Peace officers must be certifieaby the state. V.T.C.S. art. 4413(29aa). 12(c); Attorney General Opinion E-1002 (1977). They are vestedwith the privileged authority

to makearrests, see Code Grim. Proc. art. Penal CodcS46.02, 46.03. 14.03, and to possess handguns. A commissioned

peace officer is, unlike other city employe,es, usuallydeemed to be "011 duty" at all times and is obligated

to emrcise his authority whenever there is a breach of peace within his jurisdiction. Attorney General Opinion .JM-140 (1984) ; see Attorney General Opinion JM-57 (1983). Thus, your reference= city ,policc officers serving in a reserve force during their "off-duty"

hours must be qualified; they would nevertheless be "on-duty"for the purposeof exercising their duties and for certain government

liability

purposes. See AttorneyGeneralOpinionsJM-140, JM-57. -
These considsrations, however, apply primarily to emergency sltuatione,

&, ,where

the peace officer

witnesses

a trimswhen he is not oa active duty. You ask about the establishment of an official reservepolice fame, comprised of regularpeace officers,to handle the execution

of ,arrest warrants outside of their regularhours. A bowe rule city ha.8 broad power to establisha police force. Tax. Coast. art. XI, g5; V.T.C.S. art. 1175, 027; ses Kling v. City of Austin,.

62 S.W.2d 689, 690 (Tex. Civ. App. - Aan 1933, M writ). Ky not, however, enact ordinances which contravene the general laws of this state. Lower ColoradoRiver Authority v. City of San Marcos, 523 S.W.2il 641. 645 (Tex. 1975).You ask specifically aboutDonorable Dan V. Deot - Page 2 @M-462)

the establishaent

of a reserve

police forcepursuantto article998a. V.T.C.S. Article998a prwides, in part:

(a) The governing

body of say city, towu, or village may prov:lde for the establishment of a police reserve j’a~rce. Members of the police reserve force, if authorized, shallbe appointed at the discretion

elf the chief of police and shall eerve as peace cfficers during the actual dischargeof officia:.

duties. (b) The goveming body shall establishqualifications

and standards

of training

for membersof the police reseme force, and may limit the size - of the policeresmve force. (c) Ho persos appointed to the police reserve force may carry Z weapon or otherwise *ct es a peece officer un% he has been approvedby the gwcrning body. %ter approval,he may carry a weepou only whe; authortied by the Chief of Police,and when mischarging official

duties as a .duly constituted

isaceofficer. (d) Membersaf the police reserve force serve at the discretion

of the chief of police and may be called into setviceat any time the chief of police considers :Lt necessaryto have additional officers to pret.eme the peace and enforce the law.

. . . . (g) Reservepolice officersshall act only in a enpplement*ry

7r acit y to the regular police force aud shall ?n no case assume the full time duties of ragulrz: police officerswithout first complying

with ai1 requirements for such regular Police officers. (h) This Act does uot limit the power of the mayor of any f,eneral-law city to summon into service a specis:L police force, as provided by Article 995, Revised Civil Statutes of Texas, 1925. (Emphasis

added). Thus, article998s places soma limitson a home rule city's basic authority to establish a regular reserve police force. See also V.T.C.S.

art. 4413(29aa),

16 (reserve

policeofficers

must also comply

p. 2116Boqorable Dan V. Deut - Page 3 (J&462)

with certain officer standards and education requirements); Texas Board of PrivateInvestigta:ors and Private Security Agencies

v. G County Sheriff's

Reserve,

?i89 S.W.2d 135. 137 (Tex. Civ. App. - San Antonio1979,no writ);Dixonv. klcUil.len, 527 F. Supp. 711 (N.D. Tex. 1981); cf. AttorneyGenG?L OpinionH-1286 (1978) (special ewergency police force under artic1.e 995. V.T.C.S.). The statute authorizes **granting reserve**  police **oE!Eicers** powers which are more limited than thoseheld by regular poUce officers. See V.T.C.S.art. 9980, O(c). Further,

the statuteindicates that rese~officers shallact only In a aupplementtary

capacity. sec. (g). Consequently. although

a member of the regular police force may perform extra duties during his "off-duty"time. we do n#x believe that article 998a governs this extra duty because **the** duties of regularand reservepeace officers are inconsistent. Moreover,

becsuseyou ask about the regularmembers of the bone rule city's police force, article 5154c-1.V.T.C.S., the Fire and Police Employee BalationsAct. rrmst also be addressed. See 120(e) (preemptive

effect). This statute applies to "each sworn-&tified full-tine

paid employee
. . . who regularlyservas In a professional Law enforcement

capacityin the police department of any city.

. . ." Sec. 3(2). The act requires **the** provision of compensationand ewploynent conditionswhj.ch prevail in comparableprivate sector employment. Sec. 2(a). When a police officerfor a cityworks during his "off-duty"hours for ,that city. he is working overtime. The prevailing

wertiwe wages and working conditions should therefore

be eonsulted. See generally Kierstead

vi City of San Antonio, 636 S.W.2d 522, 529 (Tex.Civ. App. -'?an Antonio 1982),aff'd in part, rev'd in Part on other grounds,643 S.W.2d 118 (1982). If a city has adopted the collective

baruaininnsrwisions of the act. uursuantto section. 5, it must also co&y w&l; thoseprovisions. - * The second aspect of your question is whether the compensation for **these** police officers may take-the form of a per-warrsnt **fee.** Becauseyou asphasisethe $25 fee authorized in article 45.06 of the Texas Code of Criminal Procedure.

the context

of your questionimplies that the fees for these officers would be those specified in article 45.06. This article provides,

in part: The governing

body of each incorporated city, town or village 13hall by ordinance

prescribesuch rules, not inconsistent with any law of this State, as way be proper to enforce, by axecution against the property of the defendant, or imprisonwent

of the defendant,the collection of all fines imposesi

by such court, and shall also have power to abopt such rules and regulations concerning the practice and procedure in such court as said governing body may deem proper,not inconsistent

**with** any Law of this State. All such fines; a special expense,not to exceed $25 for

p. 2117Honorable Dan V. Dent - Page 4 (JM-462)

the issuanceand service of a warrant of arrest for 'an offense

under Section38.11,Penal Code, or under Section 149. UniformAct Regu&ating Traffic on Eighways (Article6701d. Vernon'sTexas Civil Statutes);

and t1.e

special expensesdescribedin Article 17.04 de;lling with the requisitesof a personal bond and a special expense for the issuance

and servtce

of a warrantof arrest.after due notice.uot to exceed $25, shallbe paid into the city treasury-for the use and benefit of the city,~towu

or vil:h&. (Emphasis added). This statute

sakes it clear that these feesmust be paid into the city treasury. They may not be paid as compeusatioa to the arresting officer. With regard to receivingfees from other sources, it is wellestablished

that peace officers may not acceptcompensation from third parties or private sources for the performanceof their official duties. Attorney

GeneralCpinions

X4-57 (1983);

C-661 (1966);

O-1565 (1939);see also Weber v. cl Civ. App. ty o; Sachscgk,S;l S.;iMt;6:: ;h&(Tex;

- Dallas 1979. no writ ; cf. Y S.W.2d 248. 250-251 (Ter. Civ. AnuT- Amarillo 1948. writ ief'd n.r.e.) ; see ganeralL~~Tume~ v. Ohio;

~273 U.S. 510 (1927). Thus, any compensation

for theaeofficers

must come directlyfrom the city. Cf. V.T.C.S.

art. 999b;Attorney General

OpinionJM-160 (1984) (interlox agreement for police proorction). As indicated,such compensation =st also comply

with the requirements of article5154c-1, V.T.C.S.
SUMMARP The members OE the regularpolice force of a home rule city may legally serve arrestwarrants outside of their regular hours, hut may not receive,

as compensation

for such service,

the fee provided for in article 45.06 of the Code of Criminal Procedure. The city rrmstalso comply with the prevai:ling wage and working condition prwisions of article5154c-1, V.T.C.S.

HATTOX Attorney

General

of Texas **J**

JACK HIGETOWRR FirstAssistant

Attorney

Goneral

p. 2118Honorable Dan V. Dent - Page 5 (33-462)

MARY KELLER Executive

Assistant

Attomq General ROBERTGRAY Special

Assistant

Attorney

General
RICK GILPIN alai-, opinionCanmittee Prepared

by Jennifer

Riggs Assistant

Attorney

General

p. 2119