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 ask for an interpretation of article 5167a, V.T.C.S., as amended 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 of hours in the normal 

work week of the majority of the employees of said 

county other than Peace Officers. If a Peace 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 of the county personnel policy. 

Acts 1979, 66th Leg., ch 531, at IRS. 

You first ask whether this statute is unconstitutional on the 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.2d 41 (Tex. 1970). 

Article 51674 V.T.C.S., does not impose a criminal penalty. Thus, it is not 

subject to such an exacting standard .for vagueness as a criminal statute 

would be. Barron v. Marusak, 359 S.W.2d 77 (Tex. Civ. App. - Austin 1962, 

no writ). The Court of Criminal Appeals considered a similar statute, which 

was attacked on the ground that the emergency provision was void for 

uncertainty. Bradford v. State, 160 S.W. 702 (Tex. Crim. App. 1915). It 

upheld the statute, stating that such exceptions and emergencies must 

p. 440 
Honorable Henry Wade - Page Two (Mw-137) 

necessarily be phrased in general terms, and that it would be unreasonable if the 

legislature had to specify each emergency in order to enact a valid law. See also Attorney 

General Opinion G-6050 (1944). 

You also suggest that the statute is uncertain because “peace officer” is not 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 or constable. 

The sheriff or constable is responsible for determining when an emergency exists that 

requires peace officers to work overtime. It is therefore reasonable to conclude that the 

statute covers only peace officers who take 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 by the 

sheriff or constable to work more hours during a calendar week than the normal work 

week of the majority of the county’s employees if an 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 an emergency. These officers do not have additional 

authority to require overtime work in the absence of an emergency. 

You next ask whether a sheriff or constable may permit his deputies to work extra 

hours if no emergency exists. The emergency exception only applies in cases 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 work on a basis consistent with county personnel policy. 

You next 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 be required to work overtime in a non-emergency situation. You have 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 and responsibilities of deputy sheriffs). 

You next 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 on a basis consistent with the 

overtime provision of the county personnel p~licy.~’ If the county personnel policy makes 

II0 provision for overtime pay, then the county need not pay overtime to peace officers 

who voluntarily work extra hours. 

p. 441 
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Honorable Henry Wade - PageThree (NW-1371 

Your next two questions ask whether the county must pay overtime to peace OffiCeI's 

if they are required to work extra houn in an emergency. In our 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 of article 5167a, V.T.C.S. It does 

not apply when the peace officer is required to work overtime in an emergency. 

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, S 2e. In our opinion, the use of the term “compensate” in article 5167a, 

V.T.C.S., was not intended to refer to monetary compensation alone. 

You finally ask whether the following policy would be in conflict with article 5167a, 

V.T.C.S.: The county personnel policy prohibits all overtime work by peace officers and 

other employees, but provides that sn elected official or department head may in unusual 

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 has not been declared by the sheriff or constable. 

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 on a basis consistent 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 of Texas 

P. 442 
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Honorable Henry Wade - Page Four (NW-137) 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Susan Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairmen 

Jim Allison 

David B. Brooks 

Bob Gammage 

Susan Garrison 

Rick Gilpin 

Sue Lowe 

p. 443