Honorable W.C. Lindsey Opinion No. M-246

Criminal District Attorney Jefferson County Courthouse Re: Whether police “reserve” tieaumont

,Texas 77701 officers may be legally constituted otherwise than under Art. 1269m, V.C.S. and related Dear i4r. Lindsey: questions?

The City of PortArthur Police Department is under the State Civil Service Act, Article 1269m,V.C.S. To supplement and assist the regularpolice force the City has by ordinance ~40.2859 attempted to provide for a police "reserve' force. Members of the police "reserve" force are appointed by the Chief of Police, and are unpaid volunteers. You are concernedwith your duties of law enforcement over police reservistsbearing arms andmaking arrests, etc. and **have** asked the followingquestions concerning this situation:

(1) In view of the City having adopted Article 1269m V.C.S., may police .reserve.officers be legally constituted on a basis **other** than under the terms and requirements of that lx
(2) If police "reserve-officersmay not be othervise constituted than underArticle 1269m,may they be constituted thereunder **by a**  special classification having only part-tima duties **of** a supplementary or auxiliary nature but having fullpolice power and authority?
(3) DoesArticle 1563-2,Texas Penal Code, requiring minimum monthly pay forpolice officers, apply to "reserve"officera as presently constituted or if constituted under the Civil Service Law, and is the minimum pay to be providedwithout respect to number of hours worked in a month?
(4) Do the exceptionsunder Article 484, Texas Penal Code, include "reserve*officers as presently con-

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stituted,or must the reserve officerbe compensated at least $40.00monthly as a specialpoliceman?
(11 In answer to Question 1, it is the opinion **of** this office that a citywhich has adopted Article 1269m and placed its regularpolice force under the provisions of this act is without authority to create a police "reserve"unless all members of such "reserve"are incorporatedwithin the framework and protection of Article 1269m. Article 1269m, Section 8, provides, in part, as follows:

"TheCommission shall provide for the classification of all firemen and policemen. Such classi- %zation shallbe nrovided bv ordinanceof the Citv Council, or legislitivebody: Said City Council, *
or legislativebody, shall prescribeby ordinance the number of positions of each classification.

Jo classificationnow in existence,or that may be hereafter created in such cities, shall ever be filledexcept by examinationheld in accordancewith the provisionsof this law.All persons in each classlfxatlon shallbe paid the same salary and in ddrtion theretob id longevityor seniority iay that he may beee%tlizYto. This shallnot prevent the Head of such Department fromdtsignating some person from the next **lower** classificationto fill a position in a higher classificationtemporarily,but any suchperson so designatedby the Head of the Department shall. be paid the base salary of such higher positionplus his own longevitypay during the time he performs the duties thereof. The temporaryperformance of the duties of any such positionby a personwho has not been promoted in accordancewith the provisions of this **Act** shall never be construed to promote such **per** son. All vacancies shall be filledby permanent appointment from eligibility lists furnished by the Commissionwithin ninety (901days after such vacancy occurs.
Firemen and policemen shallbe classified
as aboveprovided, and shallbe under civil serviceprotection except the Chief or Head

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**of** such Fire Department or Police Department, by whatever nams he may **be** known." (Emphasis added.)
Section **9** of the **statute** provides, in part, as followa:

"The Commission shallmake provisions for open,

competitive and **free** examinations for personsmaking proper application **and** meeting the reguirements **as** herein prescribed. All eligibility lists for **ap** plicants **for** original positions in the Fire and Police Departments shall **be created**  **only** as a "The Commission shallmake provisions for open, competitive and **free** examinations for personsmaking proper application **and** meeting the reguirements **as** herein prescribed. All eligibility lists for **ap** plicants **for** original positions in the Fire and Police Departments shall **be created**  **only** as **a** result **of** such examinations, and no appointmsnts shall ever be made for any positron rn such Depart**ments** except as a result of such examination,which shall be based on the applicant'sknowledge of andgualrficatlons for fire fzghtznq and **work m**  the **Fire** Department, or for police work and work in the Police Department, as shown by competitive examinations in the presence of all for such position, applrcants and shall **provide for**  thorouqh Xnquzry rnto the applicant's general **education** andmental ability.* (Emphasis**added.)**

In City of San **Antonio v.**  **Hahn, 274**  **S.W.Zd 162**  (Tex.Civ. App. 1955, error ref., **n.r.e.1,** this statutewas held to be such
a comprehensive law **as** to cover everyone in the police department of cities adopting theAct. Therefore, the city'**8 ordinance**  is without lawful effect in providing **as** it did for such *reserve" police force.

(2)In answer to Question 2, it is the opinion **of** our office that underArticle 1269m one classification could be **a** classificationhaving only part-time duties of a supplementary
or auxiliarynature but having full police power and authority, provided however, the officers in **such** classificationmust **be** paid **in accordance**  **with** Article 1583-2, Texas Penal Code.

(3) In answer to Question 3
, you are advised that it is the opinion of this office that if **a** city has **adopted** Article 12698, and it has created a police reservewith all members of 8ucb a group being **incorporated** witn the **Ircuueworx** and protection of Article 1269m, then Article 15E3-2would require

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honorable **W.C.** Lindsey, Page 4, (M-246)

that such police reservebe paid theminimum monthly salary of $195.00per month. Although the city could determine the number of hours every policeman should work each month, the City would be required to pay theminimum salary regardless of the number of hours worked by any policeman.

(41 In answer to Question 4, it is our opinion that t1, \! sL!'rcacrvt"officersmust be either a "peace officer"
or il"specialpoliceman" as named in Article 484. If these officers arc peace officers and if, as you advise, the City of Port Arthur has adoptedArticle 1269m, then they would be entitled to all of the benefits arising to police officers thereunder, includinga minimum salary of $195.00per month
as provided by Article 1583-2. **In** this event, Article 484 would not prohibit the carrying of weapons by these individuals.

3n the other hand, if the "reserve"officers are "specialpolicemen,"Article 484would prohibit the carrying of weapons by individualsunless they received compensation of $40.00 or more per month for their services as such officers.

It is our furtheropinion that the provisions of Articles 1269m and 1583-2do not apply to individualssummoned by the Xayor under Article 995 or under a similar provision contained in the charter of a Home Rule City,but that underArticle 484 persons so summonedmust be compensatedat the rate of $40.00 monthly in order to legally carry the armswhich **are** prohibited by Article 483, Texas Penal Code.

Article 995,V.C.S., is applicableonly to general law cities, and provides:

".:ilc?ncver

themayor deems it necessary, in ordtirto enforce the laws of the city, or to avert danger, or **to** protect life or property, in case of riot or any outbreak or calamity
or public disturbance,or when he has reason to fear any seriousviolationof law or order,
**or** any outbreak or **any** other danger to said city, or the inhabitantsthereof,he shall
summon into service as a specialpolice force, all or asmany of the citizens as in his judgment **may** be necessary. Such summonsmay be by proclamationor other order addressed to

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ilonorable **W.C.** Lindsey, Page 5, (M-2461

the citizens generally or those of any ward of the city, or subdivision thereof, or may **be by**  personal notification. **Such** special police force while in service, shall be **sub** ject to the orders of themayor, shall perform such duties as he **may** require, and shall have the same power while on duty as the regular police force of said city."

In the case of **6ome** rule cities, such **as the**  City **of** Port Arthur, the source of legal authority is the charter. Article II, Section 16, of the Port Arthur City Charter is worded similarly to Article 995 **and** gives the Mayor substantially the same power.

SUMMARY

**A** city which has adoptedArticle 1269m, V.C.S. (CivilService Act) and placed its regular police force under this act is without authority to create a police 'reserve",unless such reserve is constituted under and strictly in accordance with Article 1269m.

The only special classification forpolice officers other than one placed within the frame**work** of the regularpolice force of a city that has adopted Article **1269m** is a specialpolice force that **may** be summoned by the Mayor in times of emergency as provided **by** law. Article 995, V.C.S., or a city charter conferring such power, gives the Mayor the authority to summon citizens into service as special policemen in time of emergency. When these specialpolice are in service they have the same power as the regularpolice **force** ; and Article 484 of the Texas Penal Code requires that theymust **be** paid theminimum of $40.00 per month if they are to carry firearms. When a city has adoptedArticle **1269m, Article**  1583-2 of the Texas Penal Code requires that the city **pay** all policemen covered by 1269m a minimum salary of $195.00 month regardless of the number of hoursworllonorable W.C. Lindsey, Page 6, (M-246)

A'rcpared

by Ronald Luna irssistant

Attorney General

irPPi<OVED: OPI;r'IW

COI4MITTEE tlawthorne

Phillips, Chairman ltcrns Taylor, Co-Chairman darold dennedy Aouert Owen Jim Vollers Alfred Walker

CX~CUTIVEASSISTANT ;\.J. CARUBBI, JR.

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