The Attorney General of Texas 

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 Jim Hapel 

Criminal District Attorney 

Brasoria County Courthouse 

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 

officers apply when a town has 

been incorporated under 

chapter 11 of Title 28 

1220 Dallas Ave., Suite 202 

You have inquired whether the provisions 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 

unauthorized person to act as a peace officer leaving that person open 

Lubbock. TX. 79401 

to possible criminal prosecution under section 37.11 of the Texas 

SOB!747-5239 Penal Code. 

The town in question was incorporated under provisions which 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 city marshal is vacant 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 11 of 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 accordance with this article." 

p. 1339 
Honorable Doyle W. 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 Early v. State, 97 S.W. 

82 (Tex. Crim. App. 1906). the court held that the predecessor to 

article 1146 empowered the board of aldermen of such a town or village 

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 long as the person appointed under article 1146 does not have 

a "dual office holding" problem, see Attorney General Opinion V-70 

(1947), and is properly certifiedby the Law Enforcement Standards 

Commission, he would be lawfully authorized 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 

prerequisites of article 961. V.T.C.S. Chapter 11 

towns may utilize the provisions of article 1146 

to lawfully appoint the needed peace officers. 

w-t-&%& 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by W. Reed Lockhoof 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

W. Reed Lockhoof 

Jim Moellinger 

p. 1340