The Attorney General of Texas 

December 15, 1978 

JOHN L. HILL 

Attorney General 

Honorable Fred Toler 

Executive Director 

Opinion No. H- 12 8 6 

Texas Commission on Law Enforcement 

Officer Standards & Education 

1106 Clayton Lane, Ste. 220-E 

Twin Towers Office Building 

Austin, Texas 78723 

Re: Whether citizens summoned as special police force are 

subject to requirements of 

article 4413(29aal. 

Dear Mr. Toler: 

You ask whether citizens summoned into service as a special police 

force by a mayor pursuant to article 995, V.T.C.S., are subject to the 

requirements of article 4413(29aa), V.T.C.S., a statute relating to minimum 

physical, mental, moral and educational standards for law enforcement 

officers. Article 995, enacted more than one hundred years ago, provides: 

Whenever the mayor deems it necessary, in order 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 

anv outbreak or anv other danaer to said city, or the 

inhabitants thereof, he shall summon into se&ice as a 

yecial police force, all or as many of the citizens as 

in his judgment may be necessary. Such summons may 

be bv proclamation or other order addressed to the 

citiz& 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. 

(Emphasis added). Acts 1875, 14th Leg., 2d Session, ch. C, at 119. 

If such persons must meet article 4413(29aa) requirements, then others 

similarly situated must meet them, too. Article 995 applies only to general 

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Honorable Fred Toler - Page 2 (~-1286) 

law cities, but some home rule cities have included similar provisions in their 

charters. Attorney General Opinion M-246 (1968). Moreover, article 2.14, Code of 

Criminal Procedure, provides that police officers meeting resistance may also 

“summon a sufficient number of citizens to overcome the resistance.” All persons 

summoned by the officer are bound to obey, and if they do not obey are required to 

be reported to the appropriate prosecuting attorney. Code Crim. Proc. arts. 2.15, 

2.14. Before the new Penal Code was adopted in 1973, a failure or refusal to aid a 

magistrate or officer in the performance of his duty (e.g., a refusal to respond to 

an article 995 summons) when he was lawfully required to do so was made subject 

to a one hundred dollar fine by former Penal Code article 348. 

Article 4413(29aa!, V.T.C.S., creates the Commission on Law Enforcement 

Officer Standards and Education and empowers it, among other things, to certify 

persons as being qualified to be “peace officers” designated by article 2.12, Code of 

Criminal Procedure. According to this legislative act, unless persons appointed as 

peace officers within the meaning of the Act have been so certified, they commit a 

crime by accepting the appointment. V.T.C.S. art. 4413(29aa), SS 2(c), 2(h), 6(b), 

6(c), 6(e). This statute was enacted in 1965 while former Penal Code article 348 

was still in force. 

Thus, the Legislature placed the citizens of this state in a legal dilemma in 

1965 if, when it enacted the law creating the Commission it intended that article 

4413f29aa) apply to citizens summoned as a special police force by a mayor, or 

summoned by a police officer to aid him. As the law would stand in that event, 

citizens who failed for any reason to obey such an order could have been guilty 

before 1973 of a crime under former Penal Code section 348; however, if they 

obeyed without first being certified by the Commission, they could have been guilty 

of a different crime under article 4413(29aa). We do not believe such was the 

legislative intent. See Polke v. State, 118 S.W.2d 793 (Tex. Crim. App. 1938). 

- 

Statutes that deal with the same general subject are considered in pari 

materia and are to be read together, harmonizing conflicts if possible. 

Houston Ind. School Dist., 29 S.W.2d 312 (Tex. 1930). The intended thrust o 7-Y artlc e 

4413(29aa) is revealed by section 2(b) thereof which authorizes the Commission to 

Establish minimum educational, training, physical, mental 

and moral standards for admission to em lo ment as a peace 

officer: (1) in permanent positions, --f-f- and 2 in temporary or 

probationary status. 

(Emphasis added). The authority to certify persons as being “qualified under the 

provisions of this Act” to be peace officers is given immediately afterward in 

section 2(c). We think these provisions reach only persons seeking employment as 

peace officers, and not citizens involuntarily pressed into service as keepers of the 

peace. See Code Crim. Proc. arts. 6.05 (citizens called to aid peace officer!, 8.01, 

8.05 (of?&rs may call for aid). - Cf Code Crim. Proc. arts. 8.08, 8.09 (special 

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Honorable Fred Toler - Page 3 (H-128 6 ) 

constables), art. 45.20 (execution of justice’s warrant); V.T.C.S. art. 998 

(appointment of regular police officer). 

This conclusion is suggested by an analysis of section 2A of article 4413(29aa), 

added to the statute in 1971. That provision authoriies and requires the Commission 

to establish minimum standards for reserve law enforcement officers, distinguishing between reservists and regularly employed policemen [(including those 

employed in temporary positions or on probationary status); see Attorney General 

Opinions M-282 (1968); WW-997 (196l)l. The statutory authorit- establish a police 

reserve force is article 998a, V.T.C.S., also enacted in 1971. It contained from the 

first a grandfather clause allowing persons previously serving as reserve law 

enforcement officers to serve as reservists until January 1, 1973, without fulfilling 

the minimum standards established by the Commission on Law Enforcement Officer 

Standards and Education. Acts 1971, 62nd Leg., ch. 829, 5 6, at 2532. It was 

apparently the understanding of the Legislature in 1971 that persons not regularly 

employed as policemen, even though serving as reserve law enforcement officers, 

were not subject to the provisions of article 4413(29aa) prior to its amendment. 

This legislative construction is in accord with the apparent thrust of the 

statute, which is to upgrade the responsible effectiveness of regular law 

enforcement personnel by encouraging the development of high standards capable 

of practical local implementation. We do not believe the Legislature intended by 

the enactment of article 4413(29aa) to prevent officers from calling upon citizens 

for aid when the need arises, or to require citizens to decide at their peril whether 

answering the call would be lawful. Cf. Penal Code 5 9.51 (justification for use of 

force). See Weatherford v. State, 21.W. 251 (Tex. Crim. App. 1893) (citizens 

summoneflo aid officers do not act at their own peril). See also Presle v. Ft. 

Worth & D.C. Ry. Co., 145 S.W. 669 (Tex. Civ. App. - Amarillo - 1912, no writ 

{public policy protects one involuntarily aiding officer). 

Article 4413(29aa) does not expressly refer to article 995 or the power of an 

officer to summon citizens to his aid, but it does contain the following language in 

section 8: 

Except as expressly provided in this Act, nothing herein 

contained shall be deemed to limit the powers, rights, duties 

and responsibilities of municipal or county governments. . . . 

The Commission has interpreted this language as excepting from its jurisdiction 

those citizens summoned into service by a mayor under the powers vested in such 

officers by article 995, V.T.C.S. Cf. Code Crim. Proc. arts.2.10, 2.09 (magistrates). 

Your administrative interpretationof more than a dozen years standing has not 

been repudiated by the Legislature, and it is particularly significant in the light of 

the legislative treatment accorded police reservists in 1971. Cf. V.T.C.S. art. 

998afh). We believe the courts of this state would hold that personsummoned by a 

mayor to constitute a special police force pursuant to article 995 are not subject to 

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Honorable Fred Toler - Page 4 (H-12 86 1 

the requirements of article 4413(29aa) unless they subsequently become voluntarily 

employed as peace officers. Compare Whatle v. State, 8 S.W.2,d 174 (Tex. Crim. 

App. 1928); Gonzales Gonzales v. State,-740 110 S.W. 740 (Tex. Grim. C’:~~~p~i908); App. 1908); Uhr v. Lambert, Lambert, - 

W.2,d 174 (Tex. Grim: 

188 S.W. 946 (Tex. Civ. App. - - San San Antonio Antonio 1916, 1916, no no writh writ); Attorney Attorney General General 

Opinions H-1002 (1977); M-767 (1971); M-246 (1968); G-5621 (1946). While citizens so 

summoned may be peace officers for other purposes, they are not persons 

“appointed as peace officers” within the meaning of article 4413(29aa). 

While citizens so 

‘--J ;re not persons 

13(29aa). 

SUMMARY 

Persons summoned by a mayor to constitute a special police 

force pursuant to article 995, V.T.C.S., are not subject to 

the requirements of article 4413(29aa) unless they subsequently become voluntarily employed as peace officers. 

APPROVED: 

General of Texas 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

jsn 

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