August 11, 1987 

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Honorable Carlos Valdez 

Nueces County Attorney 

901 Leopard, Room 206 

Corpus Christi, Texas 78401 

Opinion No. ~~-766 

Re: Constitutionality of section 2 

of article 6869.1, V.T.C.S., which 

exempts a county from liability for 

job-related injuries incurred by a 

reserve officer 

Dear Mr. Valdez: 

P, 

Yoy question the constitutionality of section 2 of article 

6869.1, V.T.C.S.. under article I, section 13, of rhe Texas 

Constitution. You also refer to "amendment XIV" and to a "section 

1983 action." Consequently, this opinion assumes that you refer to 

the Fourteenth Amendment of the United States Constitution. See 

$2 U.S.C. 91983 (civil rights action for deprivation of federaprotected rights). 

Article 6869.1 authorizes county commissioners courts to 

authorize county sheriffs or constables to appoint reserve deputy 

sheriffs or constables, respectively. See §l(a). These reserve - 

officers serve at the discretion of the sheriff or constable -- when 

the sheriff or constable considers it necessary to have additional 

officers to preserve the peace and enforce the law. See art. 6869.1, 

§l(c). The county commissioners court may compensatereserve deputy 

sheriffs and constables. See art. 6869.1, 51(d). Section l(f) 

provides that reserve officers, while actively engaged in their 

assigned duties, "shall be vested with the same rights, privileges, 

obligations and duties of any other peace officer of the State of 

Texas." Section 2 of article 6869.1, however, the section about which 

you inquire, provides: 

. 

The county and/or the sheriff or constable shall 

not incur any liability by reason of the appointment of any such reserve deputy sheriff or deputy 

1. Article 6869.1, V.T.C.S.. has been repealed, effective 

September 1, 1987, and replaced with section 85.004 of the Local 

Government Code. See Acts 1987. 70th Leg., ch. 149, §61. 49. The 

substance of section2 of article 6869.1 has been retained as subsection (g) of section 85.004. 

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Ronorable Carlos Valdes - Page 2 (JM-766) 

constable who incurs any personal injury while 

serving in such capacity. 

In Attorney General Opinion M-990 (1971). the attorney general 

determined that the county and the sheriff or constable are not liable 

for any injury to the person or property of a reserve officer incurred 

in the performance of the officer's duties and that the county need 

not include reserve officers in its workers' compensation plan. 

The basis for your constitutional claims is not entirely clear. 

Article I, section 13. of the Texas Constitution contains a "due 

course of law" requirement. See also Tex. Const. art. I, E19. 

Section 13 prohibits legislative bodies from arbitrarily withdrawing 

all legal remedies from a person with a well-established common-law 

cause of action. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983). A 

statute that unreasonably abridges a justiciable right to obtain 

redress for injuries is void under section 13 as a denial of due 

process. 648 S.W.2d at 665. The "right" to recover for personal 

injuries from a governmental body, however, is not a well-established 

common-law right. The doctrine of sovereign immunity bars actions 

against counties for the acts of its agents except in the circumstances specified in the Texas Tort Claims Act. Tex. Civ. Prac. & 

Rem. Code 8101.001; Vela v. Cameron County, 703 S.W.2d 721, 724 (Tex. 

APP. - Corpus Christ1 1985, writ ref'd n.r.e.1; Attorney General ? 

Opinion JR-748 (1987) (and cases cited therein). 

The "right" of government employees to recover from the sovereign 

for injuries incurred in the course of the employee's duties is 

governed by the workers' compensation statutes. See V.T.C.S. art. 

8309h; cf. City of Gatesville v. Truelove, 546 S.W‘?d 79 (Tex. Civ. 

APP. -so 1976, no writ) (city employee may recover against city 

under Tort Claims Act for actions of another city employee when 

city has no workers' compensation plan). Article III, section 60, 

expressly authorizes the legislature to authorize counties to provide 

workers' compensation for its employees. Article 8309h provides that 

all political subdivisions shall extend workers' compensation benefits 

to their employees. See Attorney General Opinion H-338 (1974). As 

originally enacted, article - 8309h did not include volunteer policemen 

or policemen paid only on a "piecework" basis. See & The legislature amended section l(2) of article 8309h to provide that a political 

subdivision 3 include volunteer policemen in its workers' compensation program.' - See Acts 1981, 67th Leg., ch. 569, §l. at 2312. 

2. This opinion does not address the interaction of section l(2) 

of article 8309h. V.T.C.S., which appears to authorize workers' 

compensation for reserve police officers, with section 2 of article ? 

6869.1, which disclaims liability for reserve officers' injuries. 

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Honorable Carlos Valdez - Page 3 (~~-766) 

Consequently, there does not exist an established cause of action 

under these provisions that is subject to being taken away without 

"due course of law." See Gotcher v. State, 106 S.W.2d 1104 (Tex. Civ. 

APP. - Austin 1937, noyit). 

You also mention the Fourteenth Amendment to the United States 

Constitution. -You do not indicate which clause or aspect of this 

provision is Implicated by article 6869.1. The due process clause of 

the Fourteenth Amendment prohibits state action that deprives "any 

person of life, liberty, or property, without due process of law." 

U.S. Const. amend. 14, $1. This constitutional restraint limits state 

power to terminate certain rights and entitlements affecting property 

and liberty interests without providing notice and a hearing. See 

Bishop v. Wood, 426 U.S. 341 (1976); Goldberg v. Kelly, 397 U.S. 254 

(1970). As indicated, by virtue of the doctrine of sovereign immunity 

and the terms of article 6869.1, reserve officers have not had a right 

to recover for injuries sustained during the performance of their 

official duties. A right to recover in tort against the state for 

personal injuries exists only when the state consents to suit. 

The equal protection clause of the Fourteenth Amendment prohibits 

the discriminatory treatment of similarly situated persons. In Texas 

Board of Private Investigators and Private Security Agencies v. Bexar 

County Sheriff's Reserve, 589 S.W.2d 135 (Tex. Civ. App. - San Antonio 

1979, no writ), reserve officers challenged the constitutionality of a 

statute that exempted regular peace officers but not reserve officers 

from the requirements of obtaining a security officer commission 

before carrying a handgun while employed as a private security 

officer. The parties agreed that the appropriate test of the 

constitutionality of the statute is the "rational basis test." 589 

S.W.2d at 136. The court found chat there exist major distinctions of 

training, supervision, and experience between regular and reserve 

peace officers that provide a rational basis for the different 

statutory requirement. 589 S.W.2d at 137. Similar considerations 

apply to the case at hand. The differences between regular and 

reserve peace officers could rationally support the legislative 

decision CO exclude reserve peace officers from the workers' compensation statutes. 

You note that under article 6870,' V.T.C.S., the county and the 

sheriff or constable are expressly made liable for injuries inflicted 

by reserve officers in the same manner and to the same extent that 

3. Article 6870, V.T.C.S., has been repealed, effective 

September 1, 1987, and replaced with subsection (d) of section 85.003 

of the Local Government Code. - See Acts 1987, 70th Leg., ch. 149, 051, 

49. 

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Honorable Carlos Valdez - Page 4 (JM-766) 

they are liable for injuries inflicted by regular officers. See 

Attorney General Opinion M-990. It is not clear what you meanby 

mentioning this provision. The fact that sheriffs or constables are 

liable for injuries inflicted & reserve officers to the same extent 

as they are liable for injuries inflicted by regular officers does not 

mean that the sheriff or constable must have the same liability for 

injuries inflicted 0" reserve officers as they have for injuries 

inflicted on regular officers. Liability for the actions of the 

agents and employees of a governmental body is a different question 

than the question of the liability of a government body to its agents 

and employees for injuries incurred in the performance of their 

duties. 

SUMMARY 

Section 2 of article 6869.1, V.T.C.S., does 

not violate the "due course of law" provision of 

article I, section 13, of the Texas Constitution. 

Nor does section 2 of article 6869.1 violate 

either the due process or equal protection clause 

of the Fourteenth Amendment to the United States 

Constitution. 

Very ruly yours s 

JIM 

k 

MATTOX 

h 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILFIN 

Chairman, Opinion Committee 

Prepared by Jennifer Riggs 

Assistant Attorney General 

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