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 Whether a municipal police 

officer may 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 mewhers elf a reserve police force and wbetber they may retain 

a fee for such "of'f-duty" service. 

The police officers of a home rule city are peace officers whose 

duty it is "to preserve the peace within [their] jurisdiction." See 

Code Grim. Proc. arts. 2.12(4), 2.13; V.T.C.S. art. 999. A peace 

officer's duties 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 vested with 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, usually deemed 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 purpose of exercising their duties and for certain 

government liability purposes. See Attorney General Opinions JM-140, 

JM-57. 

- 

These considsrations, however, apply primarily to emergency 

sltuatione, &, ,where the peace officer witnesses a trims when he is 

not oa active duty. You ask about the establishment of an official 

reserve police fame, comprised of regular peace officers, to handle 

the execution of ,arrest warrants outside of their regular hours. A 

bowe rule city ha.8 broad power to establish a 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 Colorado River Authority v. City of San 

Marcos, 523 S.W.2il 641. 645 (Tex. 1975). You ask specifically about 
Donorable Dan V. Deot - Page 2 @M-462) 

the establishaent of a reserve police force pursuant to article 998a. 

V.T.C.S. 

Article 998a 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, shall be appointed 

at the discretion elf the chief of police and shall 

eerve as peace cfficers during the actual discharge of officia:. duties. 

(b) The goveming body shall establish qualifications and standards of training for members of 

the police reseme force, and may limit the size - 

of the police resmve 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 approved by 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 isace officer. 

(d) Members af the police reserve force serve 

at the discretion of the chief of police and may 

be called into setvice at any time the chief of 

police considers :Lt necessary to have additional 

officers to pret.eme the peace and enforce the 

law. 

. . . . 

(g) Reserve police officers shall 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 officers without 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, article 998s places soma limits on 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 police officers must also comply 

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

with certain officer standards and education requirements); Texas 

Board of Private Investigta:ors and Private Security Agencies v. G 

County Sheriff's Reserve, ?i89 S.W.2d 135. 137 (Tex. Civ. App. - San 

Antonio 1979, no writ); Dixon v. klcUil.len, 527 F. Supp. 711 (N.D. Tex. 

1981); cf. Attorney GenG?L Opinion H-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 

those held by regular poUce officers. See V.T.C.S. art. 9980, O(c). 

Further, the statute indicates that rese~officers shall act 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 regular and reserve peace officers 

are inconsistent. 

Moreover, becsuse you ask about the regular members of the bone 

rule city's police force, article 5154c-1. V.T.C.S., the Fire and 

Police Employee Balations Act. rrmst also be addressed. See 120(e) 

(preemptive effect). This statute applies to "each sworn-&tified 

full-tine paid employee . . . who regularly servas In a professional 

Law enforcement capacity in the police department of any city. . . ." 

Sec. 3(2). The act requires the provision of compensation and 

ewploynent conditions whj.ch prevail in comparable private sector 

employment. Sec. 2(a). When a police officer for a city works 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 baruaininn srwisions of the act. uursuant to section. 

5, it must also co&y w&l; those provisions. - * 

The second aspect of your question is whether the compensation 

for these police officers may take-the form of a per-warrsnt fee. 

Because you asphasise the $25 fee authorized in article 45.06 of the 

Texas Code of Criminal Procedure. the context of your question implies 

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 prescribe such 

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

the issuance and service of a warrant of arrest 

for 'an offense under Section 38.11, Penal Code, or 

under Section 149. Uniform Act Regu&ating Traffic 

on Eighways (Article 6701d. Vernon's Texas Civil 

Statutes); and t1.e special expenses described in 

Article 17.04 de;lling with the requisites of a 

personal bond and a special expense for the 

issuance and servtce of a warrant of arrest. after 

due notice. uot to exceed $25, shall be 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 fees must be paid into the city 

treasury. They may not be paid as compeusatioa to the arresting 

officer. 

With regard to receiving fees from other sources, it is wellestablished that peace officers may not accept compensation from third 

parties or private sources for the performance of their official 

duties. Attorney General Cpinions 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 theae officers must come directly from the city. Cf. 

V.T.C.S. art. 999b; Attorney General Opinion JM-160 (1984) (interlox 

agreement for police proorction). As indicated, such compensation 

=st also comply with the requirements of article 5154c-1, V.T.C.S. 

SUMMARP 

The members OE the regular police force of a 

home rule city may legally serve arrest warrants 

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 rrmst also comply 

with the prevai:ling wage and working condition 

prwisions of article 5154c-1, V.T.C.S. 

HATTOX 

Attorney General of Texas 

J 

JACK HIGETOWRR 

First Assistant Attorney Goneral 

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

MARY KELLER 

Executive Assistant Attomq General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

alai-, opinion Canmittee 

Prepared by Jennifer Riggs 

Assistant Attorney General 

p. 2119