llonorable William **W.** Day CountyAttorney Calhoun County Courthouse Port Lavaca, Texas 77979 Dear Sir: Opinion NO. M-1026

We: ReserveDeputy Sheriffs You have requested the opinion of this office concerning certain **statutes** passed **by** the Sixty-secondLegislature creating and governing a new classification of peace **officer** known as "ReserveDeputy Sheriff". **Your** inquiry is so restrictedas to eliminate our considerationof *Reserve Deputy Constable'and **“ Reserve**  Police **Officer*.** **Your** inquiry concerns the followingquestioner 1. Is the "grandfatherclause* applicable to a **“ Reserve**  Deputy Sheriff"7 2. May an uncompensated “Reserve Deputy Sheriff" legally carry a weapon and function as a police officer? 3. Is recompense for equipment and uniformsoptional **to** the county? 4. May private concerns employ “Reserve Deputy Sheriffs" for pay and assign **them** as security officers,watchmen, bouncers, etc?
s. May a "ReserveDeputy Sheriff* functionalone or **must** he ue accompanied **by** a *regular"officer? b. An inquiry concerning county liability to a Reserve Deputy Sheriff that is answered by Attorney General Opinion DO. M-990 (19711, **a** copy of which has been sent you under separate cover.

-5002-DonorableWilliam **W.** Day, page 2 (M-1026)

. Senate Dill 43, **Acts** 62nd Legislature,Regular Session

(1971)'defines and authorizes the appointmentof Reserve Deputy Sheriffs as follows8

"Section 1. (a) The Commissioners **Court** of any county in the State may authorize the sheriff of the county to appoint reserve deputy sheriffs,
. . .who shallbe subject to serve as peace officersduring the actual discharge of their officialduties upon call,of the sheriff,
. . . "(b,)The CommissionersCourt **may** limit the number of reserve deputy sheriffs
. . .who may be appointed. "(cl Such reserve deputy sheriffs shall serve at the discretionof the sheriff andmay be called into service at any time the sheriff considers it necessary to have additional officers to preserve the peace and enforce the law
. . . '(d) Such reserve deputy sheriffs
. . . shall servewithout pay but the CommissionersCourtmay provide compensation for the purchase of uniforms and/or equipment used by such individuals. 'Ye) Such reserve deputy sheriffs

. . . prior **tt5 their**  entry upon duty and simultaneouslywith their appointments, shall file an oath and bond in the amount **of** Two Thousand Dollars ($2,000),payable to the sheriff,
. . .

“(f) Such reserve deputy sheriffs,while on active duty at the call of the sheriff and while actively engaged in their assigned duties:
. . . shall be vestedwith the sams rights,privileges, obligations and duties of any other peace officer of the State of Texas. "Sec. 4. Any qualificationsestablished for the position of reserve deputy sheriff
. . .by the Corn missioners **Court** shall meet the minimum physical,mental,

**kh.** SOG, p. 1739, codified by Vernon as **Art.** 6969.1, Sec. 1, V.C.S.

-5003-Ilonorable William W. Day, page 3
educational, - . . andmoral standardsestablishedby the commrss~on on Law EnforcementOfficer Standardsand Education,but may be stricter than the standards of the commission." (M-1026)

62ndAt a time subsequent to the foregoin!ie Senate Bill 72, **Acts** Legislature,Regular Session, (1971) was passedwhich also defined and authorized the appointment of Reserve Deputy Sheriffs (aswell as Reserve Deputy Constables and a police force reserve). There might have been conflictsbetween these twoActs but the passage 05 Senate Bill 17,Acts 62nd Legislature, 1st Called Session, (1971) clarified any such conflicts and repealed all of Senate Bill 72 (supra)relating to sheriffs and constableswith the minor exception concerningeducational standards and trainingwhich is non-conflicting. By harmonizing these three Acts we find the following applicable education and training requirementsas applied to reserve deputy sheriffs: 1. SenateBill 43, Sec. 34, imposes the burden on the Commission on Law Enforcement Officer Standards and Education tot *

. . . establishminimum training standards for all reserve law enforcement officerswhich must be FiiTfmefore a person appointed as a reserve law enforcement officer-may car-6 a weapon or otherwise act as a peace officer.* (emphasisadded). 2. Senate Bill 72, Sec. S5, imposes the burden as to deputy sheriffs that:
'Ch. 829, p. 2531; the relevant Sections are codified by Vernon as Art. 6869.2, Sec. 1, V.C.S., Art. 4413 (29aa),Sec. ZA, V.C.S., and Art. 990a, note, V.C.S. 3ch. 4, p. 3434, Codified by Vernon as Art. 6869.2, Sec. 1 and 2, V.C.S. and Art. 4413 (29aa), Sec. ZA, V.C.S. **4Art.** 4413 (29aa),Sec. 2A, V.C.S. 5 Art. 99Sa, note, V.C.S., and Art. 6869.2, note, V.C.S.

-5004-. ilonorablc William W. Day, page 4 (M-1026)

"Any qualificationsestablished for the position of reserve deputy sheriff
. . .by the Commissioners Court, . . . shallmeet theminimum physical,mental, educational, andmoral standardsestablishedby the Commission on Law EnforcementOfficer Standards and Bducation, but may be stricter than the standardsof the Commission." And Senate Bill 72, Sec. 66, (supra)sets forth the following "grandfatherclause":

"Section 6. Any person serving as a reserve law enforcement officer before the effectivedate of this **Act** may be appointed to temporarilyserve as a reserve law enforcement officerwithout fulfilling the minimum training standardsestablishedby the Commission on Law BnforcementOfficer Standards and Education. In no case shall any person serve as a reserve law enforcement officer after January 1, 1973, unless he has fulfilled theminimum physical, mental, educational,moral and training standards established by the Commissionon Law Enforcement Officer Standards and Education." I. Since Senate Bill 17 (supra)repealed allmaterial reference in Senate Bill 72 to anythingbut "police reserve force", it is the opinion of this office that Reserve Deputy Sheriffsmay not qualify under the grandfather clause. II. Article 403, Texas Penal Code, prohibits the carrying of a pistol (andother weapons) in the State of Texas. Article 484, Texas Penal Code, exempts, inter alia, ". . . any peace officer in the actual discharge of hisofficial duty.
. ." Senate Bill 43 (supra)makes a Reserve Deputy Sheriff a peace officer when called into service. Therefore, it is the opinion of this office that a Reserve Deputy Sheriff

'Art. 99Sa, note, V.C.S., andArt. 6869.2,note, V.C.S.

-5005-. llonorabla William W. Day, page 5 (M-1026)

may be armed and function as a peace officerwhen (andonly when) called into service as provided **by the**  **new** law. III. Since the new law uses the word **“may”** with regard to **com** pensation for uniforms and equipment, it is the opinion **of** this office that the statute on its facemakes it discretionary with the Commissioners Court to pay or not pay for Such items. IV. Although no impediment is perceived to prevent the appointrxnt of persons as Reserve Deputy Sheriffswho are normally employed as industrialguards,bouncers, night watchmen, etc., some questionsmight arise concerning conflictbetween such employment and the discharge of one's duties as a peace officer. Since no Court has yet had an opportunity to interpret the phrase "while on active duty at the call of the sheriff and while actively engaged in their assigned duties," our response on this **matter** will petrforce be concluded in general terms. It is the opinion of this office that Reserve Deputy Sheriffswhile on active service will resolve employment conflicts in the same manner and on the sa~x basis as regular deputiesrwhile not on active service no conflict exists. V. There being no restriction contained in the statute, it is the opinion of this office thatwhile on active duty a Resarve Deputy Sheriff may function alone, subject only to the same jurisdictionaland venue restrictions imposed **by** law **on regular**  deputies. S U MI4A R Y ------- A Reserve Deputy Sheriffmay not qualify undar **the** "grandfothor **clause. ”**  **A** Reservu Deputy Sheriff **may** legally carry **a** weapon while on active duty (eventhough not government compensated).

, -5006-Ilonorablc WilliamW. Day, page G (M-1026)
Compensation for uniforms and equipment of Reserve Deputy Sheriffs is entirely discretionarywith Commissioners Court. Reserve Deputy Sheriffs, while on active duty, are governed as to employment conflicts in the samemanner as regular deputies. **A** Reserve Deputy Sheriff on active duty may functionalone and need not necessarilybe accompanied **Ly a**  **“ regular** **”** officer. .I

ey General of Texas Preparedby Howard 11.Fender AssistantAttorney General APPROVED: OPINION COIWITTEE Kerns Taylor, Chairman N. E. Allen, Co-Chairman Jay Floyd Dunklin Sullivan lien Harrison Jack Sparks Bill Flanary SAIl1XZDANIRL Staff LegalAssistant ALFRXD WUXi3l Executive Assistant iJOLAIJIIIT'E First Assistant

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