# The Attorney General of Texas February 4, 1980

Honorable Henry Wade Criminal District Attorney 6th Floor, Records Building Dallas, Texas 75202 Opinion No. ~w-137 Re: Overtime policies for peace officers under article 5167a, V.T.C.S. Dear Mr.Wade: You askfor an interpretation ofarticle 5167a,V.T.C.S., asamended by the recent legislature:

Except in cases of emergency, as determined by the sheriff or constable of such county, it shall be unlawful for any county having more than five hundred thousand (500,000) inhabitants according to the last preceding Federal Census to require any Peace Officer to work more hours during any calendar week than the number ofhours inthe normal work week of the majority of the employees of said county other than Peace Officers. IfaPeace Officer elects to work extra hours during any calendar week, the county shall compensate the officer for the overtime work on a basis consistent with the overtime provisions ofthe county personnel policy. Acts 1979,66th Leg., ch 531,at IRS. Youfirst ask whether this statute isunconstitutional onthe basis that the emergency provision is vague and indefinite. A vague statute violates due process only when the required course of conduct is stated in terms so vague that men of common intelligence must guess at what is required Texas Liquor Control Board v. Attic Club, Inc., 457 S.W.2d41(Tex. 1970). Article 51674 V.T.C.S., does not impose a criminal penalty. Thus, it isnot subject to such an exacting standard .for vagueness as a criminal statute would be. Barron v. Marusak, 359S.W.2d77(Tex. Civ. App.- Austin 1962, nowrit). The Court ofCriminal Appeals considered a similar statute, which was attacked on the ground that the emergency provision was void for uncertainty. Bradford v. State, 160S.W. 702 (Tex. Crim. App. 1915). It upheld the statute, stating that such exceptions and emergencies must

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necessarily be phrased in general terms, and that it would be unreasonable if the legislature had to specify each emergency inorder to enact avalid law. See also Attorney General Opinion G-6050 (1944). Youalso suggest that the statute isuncertain because “peace officer” isnot defined In our opinion, “peace officer” within this statute covers only deputy sheriffs, deputy constables, and any other peace officers subject to the control of the sheriff orconstable. The sheriff or constable is responsible for determining when an emergency exists that requires peace officers to work overtime. It istherefore reasonable to conclude that the statute covers only peace officers whotake orders from the sheriff or constable and **does** not include all those peace officers listed in section 2.12 of the Code of Criminal Procedure as well as other statutes. & Attorney General Opinions H-1157(1978);H-549 (1975).You next ask whether a deputy sheriff or deputy constable may be required bythe sheriff or constable to work more hours during a calendar week than the normal work week of the majority ofthe county’s employees ifan emergency has not been determined by the sheriff or constable. Article 2372h, V.T.C.S., provides in all counties having a population of 500,000 or mope, the commissioners court has authority to establish the hours of work for, employees including deputy sheriffs and deputy constables. Article 5167a,V.T.C.S., clearly states that the county may not require the peace officers to work longer than the stated time if no emergency has been determined In our opinion, the sheriff and constable in these counties exercise only the county’s power to require peace officers to work extra hours during anemergency. These officers donot have additional authority to require overtime workinthe absence ofan emergency. Younext ask whether a sheriff or constable may permit his deputies to work extra hours ifno emergency exists. The emergency exception only applies incases where peace officers are required to work overtime. Where a peace officer elects to work overtime, the constable or sheriff may permit him to do so, but he must be compensated for the overtime workonabasis consistent with county personnel policy. Younext ask whether the commissioners court may require peace officers to work overtime in an emergency or non-emergency situation. It is clear that peace officers **CaMOt** berequired to work overtime inanon-emergency situation. Youhave called to our attention no statute which authorizes the commissioners court to direct the activities of deputy sheriffs and constables in an emergency situation. See generally Attorney General Opinion H-985 (1977)(powers andresponsibilities ofdeputy sheriffs). Younext ask whether article 5167a,V.T.C.S., requires the payment of overtime to peace officers absent a county personnel policy which provides for the payment of **Overtime.** If a peace officer elects to work extra hours during any calendar week, “the **County** shall compensate the officer for the overtime work ona basis consistent with the overtime provision of the county personnel p~licy.~’ Ifthe county personnel policy makes **II0** provision forovertime pay, then the county need not pay overtime to peace officers whovoluntarily workextra hours.

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Your next twoquestions ask whether the county must pay overtime topeace OffiCeI's ifthey are required to work extra houn in anemergency. Inour opinion, the requirement that peace officers receive overtime compensation applies only where a peace officer elects to work extra hours pursuant to the last sentence ofarticle 5167a,V.T.C.S. It does not apply when the peace officer isrequired to workovertime inanemergency. You ask whether the county personnel policy could provide for compensatory time off to peace officers and other employees in lieu of the payment of overtime. If the overtime provisions of the county personnel policy provide for compensatory time for extra hours worked, we believe the county may use this method of compensating peace officers who elect to work extra hours. We note that a rider to the General Appropriations Act refers to time off as “compensation” for overtime work. Acts 1979, 66th Leg., art. V,S2e. Inouropinion, the useofthe term “compensate” inarticle 5167a, V.T.C.S., wasnot intended torefer to monetary compensation alone. Youfinally ask whether the following policy would be in conflict with article 5167a, V.T.C.S.: The county personnel policy prohibits all overtime work bypeace officers and other employees, but provides that sn elected official or department head may inunusual situations seek prior approval from the commissioners court to require employees to work more than forty hours a week. This policy would conflict with article 5167a, because it provides for required overtime work by peace officers under circumstances where cm emergency hasnot been declared bythe sheriff orconstable. SUMMARY Article 51674 V.T.C.S., provides that peace officers subject to the direction of the sheriff or constable may not be required to work overtime except in cases of emergency determined by the sheriff or constable. The sheriff or constable may permit his deputies to work extra hours if no emergency exists, but they must be compensated ona basisconsistent with county personnel policy. If the county personnel policy &es not provide for overtime pay or provides compensatory time instead of money, then peace officers who elect to work overtime may be compensated according to it. Overtime pay need not be provided peace officers when they are required to work extra hours consistent with the provisions of article 5167a.V.T.C.S.

JOHN W.FAINTER, JR. First Assistant Attorney General MARK’ WHITE Attorney General ofTexas

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TEDL.HARTLEY Executive Assistant Attorney General Prepared bySusan Garrison Assistant Attorney General APPROVED: OPINIONCOMMITTEE C.Robert Heath, Chairmen Jim Allison David B.Brooks BobGammage Susan Garrison Rick Gilpin SueLowe

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