August 11, 1987

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Honorable CarlosValdez Nueces CountyAttorney 901 Leopard,Room 206 Corpus Christi,Texas 78401 OpinionNo. ~~-766

Re: Constitutionalityof section 2 of article 6869.1, V.T.C.S., which exemptsa county from liability for job-related injuries incurred by a reserve officer

DearMr. 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 federaprotectedrights).
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 discretionof the sheriffor 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 sectionaboutwhich you inquire,provides:

. The county and/or the sheriff or constable shall not incur any liabilityby reason of the appointment of any suchreserve deputy sheriffor 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 has been repealed, effective September 1, 1987, and replaced with section 85.004 of the Local Government Code.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 section85.004.

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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 sheriffor constableare not liable for any injury to theperson orproperty of a reserve officer incurred in the performance of the officer's duties and that the county need not includereserve officers in itsworkers' compensationplan.

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 legislativebodies from arbitrarilywithdrawing 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 governmentalbody, 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 ? OpinionJR-748 (1987) (andcases cited therein).

The "right" of government employeesto 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 cityhas no workers' compensation plan). Article III, section 60, expresslyauthorizes the legislature to authorize counties to provide workers' compensation for its employees. Article 8309h provides that allpolitical subdivisionsshall extendworkers' compensationbenefits to their employees. SeeAttorney General Opinion H-338 (1974). As originally enacted, - article 8309h did not includevolunteer policemen
or policemenpaid only on a "piecework"basis. See & The legislature amended section l(2)of article 8309h toprovide that a political subdivision 3 include volunteer policemen in its workers' compensationprogram.' See Acts 1981, 67thLeg., ch. 569, §l. at 2312. -

2. This opinion doesnot address the interactionof 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 reserveofficers' injuries.

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Consequently, there does not exist an established cause of action under these provisions that is subject to being taken away without "due courseof law." See Gotcherv. 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 Implicatedby 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 constitutionalrestraint limits state power to terminate certain rights and entitlementsaffectingproperty and liberty interests without providing notice and a hearing. See Bishop v. Wood, 426 U.S. 341 (1976);Goldbergv. Kelly, 397 U.S. 254 (1970). As indicated,by virtue of the doctrine of sovereign immunity and the terms of article 6869.1,reserve officershave 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 onlywhen the state consents to suit.

The equalprotection clause of theFourteenthAmendmentprohibits the discriminatorytreatment of similarly situatedpersons. In Texas Board of Private Investigatorsand Private SecurityAgencies v. Bexar County Sheriff'sReserve, 589 S.W.2d 135 (Tex.Civ.App. - SanAntonio 1979,nowrit), reserve officers challengedthe constitutionalityof a statute that exempted regularpeace officersbut 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 constitutionalityof the statute is the "rational basis test." 589 S.W.2dat 136. The court found chat there existmajor distinctionsof 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 excludereservepeace officers from theworkers' compensation statutes.

You note that under article 6870,'V.T.C.S., the county and the sheriff or constable are expresslymade liable for injuries inflicted by reserve officers in the samemanner and to the same extent that

3. Article 6870, V.T.C.S., has been repealed, effective September 1, 1987, and replacedwith subsection (d) of section 85.003 of theLocal GovernmentCode. SeeActs 1987, 70thLeg., ch. 149, 051, - 49.

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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 inflictedby regular officersdoesnot mean that the sheriff or constablemust 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 governmentbody 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 h

k JIM MATTOX AttorneyGeneral of Texas

MARY KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorneyGeneral

RICK GILFIN Chairman,Opinion Committee
Preparedby JenniferRiggs AssistantAttorneyGeneral

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