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 Port Arthur Police Department is under the 

State Civil Service Act, Article 1269m, V.C.S. To supplement and assist the regular police 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 

concerned with your duties of law enforcement over police 

reservists bearing arms and making arrests, etc. and have 

asked the following questions 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- officers may not be othervise 

constituted than under Article 1269m, may they be constituted thereunder by a special classification having 

only part-tima duties of a supplementary or auxiliary 

nature but having full police power and authority? 

(3) Does Article 1563-2, Texas Penal Code, requiring 

minimum monthly pay for police officers, apply to 

"reserve" officera as presently constituted or if 

constituted under the Civil Service Law, and is the 

minimum pay to be provided without respect to number 

of hours worked in a month? 

(4) Do the exceptions under Article 484, Texas Penal 

Code, include "reserve* officers as presently con- 

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honorable W.C. Lindsey, Page 2, (M-246) 

stituted, or must the reserve officer be compensated 

at least $40.00 monthly as a special policeman? 

(11 In answer to Question 1, it is the opinion of this 

office that a city which has adopted Article 1269m and placed 

its regular police force under the provisions of this act is 

without authority to create a police "reserve" unless all 

members of such "reserve" are incorporated within the framework and protection of Article 1269m. Article 1269m, Section 8, 

provides, in part, as follows: 

"The Commission shall provide for the classification of all firemen and policemen. Such classi- 

%zation shall be nrovided bv ordinance of the Citv 

Council, or legislitive body: Said City Council, * 

or legislative body, shall prescribe by ordinance 

the number of positions of each classification. 

Jo classification now in existence, or that may 

be hereafter created in such cities, shall ever be 

filled except by examination held in accordance with 

the provisions of this law. All persons in each 

classlfxatlon shall be paid the same salary and in 

ddrtion thereto b id longevity or seniority 

iay that he may beee%tlizYto. This shall not 

prevent the Head of such Department from dtsignating some person from the next lower 

classification to fill a position in a higher 

classification temporarily, but any such person 

so designated by the Head of the Department 

shall. be paid the base salary of such higher 

position plus his own longevity pay during 

the time he performs the duties thereof. The 

temporary performance of the duties of any such 

position by a person who has not been promoted 

in accordance with the provisions of this Act 

shall never be construed to promote such person. All vacancies shall be filled by permanent appointment from eligibility lists furnished 

by the Commission within ninety (901 days after 

such vacancy occurs. 

Firemen and policemen shall be classified 

as above provided, and shall be under civil 

service protection except the Chief or Head 

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Honorable W.C. Lindsey, Page 3, (M-246) 

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 shall make provisions for open, 

competitive and free examinations for persons making 

proper application and meeting the reguirements as 

herein prescribed. All eligibility lists for applicants for original positions in the Fire and 

Police Departments shall be created only as a 

"The Commission shall make provisions for open, 

competitive and free examinations for persons making 

proper application and meeting the reguirements as 

herein prescribed. All eligibility lists for applicants 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 Departments except as a result of such examination, which 

shall be based on the applicant's knowledge 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 

and mental 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 statute was held to be such 

a comprehensive law as to cover everyone in the police department 

of cities adopting the Act. 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 under Article 1269m one classification could be a 

classification having only part-time duties of a supplementary 

or auxiliary nature but having full police power and authority, 

provided however, the officers in such classification must 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 reserve with all members 

of 8ucb a group being incorporated witn the Ircuueworx and protection of Article 1269m, then Article 15E3-2 would require 

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

that such police reserve be paid the minimum monthly salary 

of $195.00 per month. Although the city could determine the 

number of hours every policeman should work each month, the 

City would be required to pay the minimum salary regardless 

of the number of hours worked by any policeman. 

(41 In answer to Question 4, it is our opinion that 

t 1, \! sL! 'rcacrvt" officers must be either a "peace officer" 

or il "special policeman" as named in Article 484. If these 

officers arc peace officers and if, as you advise, the City 

of Port Arthur has adopted Article 1269m, then they would 

be entitled to all of the benefits arising to police officers 

thereunder, including a minimum salary of $195.00 per 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 

"special policemen," Article 484 would prohibit the carrying 

of weapons by individuals unless they received compensation 

of $40.00 or more per month for their services as such officers. 

It is our further opinion that the provisions of Articles 

1269m and 1583-2 do not apply to individuals summoned by the 

Xayor under Article 995 or under a similar provision contained 

in the charter of a Home Rule City, but that under Article 484 

persons so summoned must be compensated at the rate of $40.00 

monthly in order to legally carry the arms which are prohibited 

by Article 483, Texas Penal Code. 

Article 995, V.C.S., is applicable only to general 

law cities, and provides: 

".:ilc?ncver the mayor deems it necessary, in 

ordtir to 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 serious violation of law or order, 

or any outbreak or any other danger to said 

city, or the inhabitants thereof, he shall 

summon into service as a special police force, 

all or as many of the citizens as in his judgment may be necessary. Such summons may be 

by proclamation or 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 subject to the orders of the mayor, 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 adopted Article 1269m, 

V.C.S. (Civil Service 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 for police 

officers other than one placed within the framework of the regular police force of a city that 

has adopted Article 1269m is a special police 

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 special police are in service 

they have the same power as the regular police 

force ; and Article 484 of the Texas Penal Code 

requires that they must be paid the minimum of 

$40.00 per month if they are to carry firearms. 

When a city has adopted Article 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 hours wor 
llonorable 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~CUTIVE ASSISTANT 

;\.J. CARUBBI, JR. 

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