# The Attorney General ofTexas
November 24, 1981 MARK WHITE Attorney General

Supreme Court Building P. 0. Box 1254a Austin, TX. 78711 512/475-2501 Telex 9101874-1367 TekoDier 5121475-9286 Honorable JimHapel CriminalDistrictAttorney Brasoria CountyCourthouse Angleton, Texas 77515

1507 Main St.. Suite 1400 Dallas. TX. 75201 214!?42B944

4924 Alberta Ave., Suite 160 El Paso. TX. 79905 915l533.3494 Dear Mr. Mapel: Opinion No. W-394 Re: Whether articles 998, 999 and 999a. V.T.C.S.. apply to towns incorporated under provisions of chapter 11 of Title 28, V.T.C.S.; or. in the alternative, what provisions for the appointment of peace officersapplywhen a townhas been incorporated under chapter 11of Title 28

1220 Dallas Ave., Suite 202 You have inquiredwhether theprovisions of articles 998. 999 and Houslon, TX. 77002 999a, V.T.C.S., would apply to a town organized under the provisions 713/6- of chapter 11 of Title 28, V.T.C.S. Your concern arises from the possibility that a town under your jurisdiction might appoint an SO5 Broadway, Suite 312 unauthorizedperson to act as a peace officer leaving thatperson open Lubbock. TX. 79401 to possible criminal prosecution under section 37.11 of the Texas SOB!747-5239 Penal Code. The town in questionwas incorporatedunder provisionswhich are 4309 N. Tenth, Suile B McAllm. TX. 78501 codified as chapter Il. Title 28. Its population has declined until 51216824547 it has reached the present level of thirty (30) persons. You state there is still an acute need for local law enforcement beyond the level that can be provided by the sheriff of Brazoria County. At the 200 Main Plaza. Suile 400 present time, the office of citymarshal isvacant because none of the San Antonio, TX. 78205 residents are interested in seeking election to such office. At all 51212254191 times since incorporation the town has operated under the provisions of chapter 11of Title 28. It is clear that articles 998. 999 and 999a do not apply to any town which has not met the prerequisites set out in article 961, V.T.C.S. Article 961 provides in mandatory language in its last sentence: "The provisions of this title shall not apply to any city, town or village until such provisions have been accepted by the council in accordancewith this article."

p. 1339HonorableDoyleW. Neighbours - Page 2 etw-394)

Under your set of facts, the town council is authorized in section 7, article 1146 to appoint "such officers, other than those mentioned in this chapter. as shall be deemed necessary to carry out the provisions of the same." In the case of Earlyv. State, 97 S.W. 82 (Tex. Crim. App. 1906). the court held that the predecessor to article 1146empowered theboard of aldermen of sucha townorvillage to appoint policemen. It should be noted there is no residence requirement in chapter 11, Title 28 for the officers appointed under article 1146. As longas theperson appointed under article 1146does not have a "dual office holding" problem, see Attorney General Opinion V-70 (1947), and is properly certifiedby the Law Enforcement Standards Commission,hewould be lawfullyauthorized to act as a peace officer. SUMMARY Articles 998. 999, and 999a.V.T.C.S., do not apply to towns incorporated under chapter 11, Title 28, unless said town follows the prerequisitesof article 961.V.T.C.S. Chapter 11 towns may utilize the provisions of article 1146 to lawfullyappoint theneeded peace officers.



# w-t-&%&

Attorney General of Texas JOHNW. FAINTER,JR. FirstAssistantAttorney General RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral PreparedbyW. Reed Lockhoof AssistantAttorneyGeneral APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Jon Bible Rick Gilpin W. Reed Lockhoof JimMoellinger

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