The Attorney General of Texas 

October 30, 1980 

Honorable Dan M. Boulware 

Johnson County Attorney 

Courthouse 

Clebume, Texas 75031 

Opinion No. !.Uv-262 

Re: Appointment of a city marshal 

Dear Mr. Boulware: 

In April, 1979, the city of Briaroaks, a general law city, elected a city 

marshal. He resigned, and the mayor and city council appointed a 

replacement, who also resigned. A third person was appointed; however, the 

council removed that appointee following a dispute between him and several 

councfl members. The mayor, who felt this removal was unwarranted, then 

designated this person a special police officer under article 995, V.T.C.S., 

and placed him in charge of enforcirg the city’s laws. The city council has 

challenged this procedure. 

You ask the following questions: 

1. 

2. 

3. 

4. 

Was the mayor authorized to reappoint this 

individual under article 995 and, if so, how lang 

may he serve as a special police officer? 

Although this indivi&al has been reappointed 

under article 995 as a special police officer, &es 

a vacancy exist in the office of city marsbl and, 

if so, how is this vacancy to be filled? 

The individual is not a resident of the city, but he 

does reside in the county. May he serve as either 

city marshal or special police officer? 

The individual does not have law enforcement 

certification. May he serve as the city’s sole 

peace officer either under article 995 or as city 

marshal? 

Article 995, V.T.C.S., provides, in pertinent part: 

Whenever the mayor &ems it necessary, in order to 

protect the laws of the city, or to avert danger, or to 

protect life or property, in case of riot or any 

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Honorable Dan M. Boulware - Page TWO (M-262) 

outbreak cr calamity cc public disturbance, or when hs 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 a special police force, all 

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

Article 977, V.T.C.S., provides that “[ol ther officers of the [city] shall be a. . . 

marshaL . . who may either be appointed or elected as provided by ordinance.” Article 

999, V.T.C.S., provides that the city marshal is the ex officio chief of police, and that 

he is respwsible, inter aJia, for preventing disturbances, arresting violators of the 

public peace, and executing all Writs and process issued by designated courts. In light 

of these provisions, a city marshal is clearly en officer of the city. See Uhr v. 

Lsncaster, 187 S.W. 379 (Tex. Civ. App. -San Antonio 1916, no writ); Miller? Cit 

Pwts 282 S.W. 2d 264 (Tex. Civ. App. - San Antonio 1955, ------Y wrrt rePd n.r.e. 

srtlc es 977 and 999, V.T.C.S., to be wnstrued together). 

Article 1003, V.T.C.S., prohibits a city wuncii from appointing anyone “other 

than an elector resident of the city” to any office except that of city health officer. 

E Attorney General Opinion G-181 (1939). Article 1006! V.T.C.S., authorizes the 

council to remove officers for incompetency, corruption, misconduct, or malfeasance 

in office, after due notice and an opportunity to be heard; the council may also remove 

an officer “by resolution declaratory of its want of confidence in said officer; 

provided, that two-thirds of the aldermen. . . vote in favor of said resolution.” When a 

vacancy in sn office occurs, by either resignation, article 1005, V.T.C.S., or removal 

from office, article 1006, V.T.C.S., “the mayor or act& mayor shall fill such vacancy 

by appointment, to be confirmed by the city council,” article 989, V.T.C.S. 

We Will answer your last question first. 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 those persons designated as “peace office& by article 

2.12, Code of Criminal Procedure. Unless indiviwals accepting appointment as peace 

officers within the meanitg of the act are so certified, they commit a crime - as do 

those appointing them - with certain exceptions. See Attorney General Opinion H1286 (1978); see also Attorney General Opinions MWm (1979); M-767 (1971). Persons 

drafted as part a special police force pursuant to article 995 are not “peace 

officers” within the meaning of the act and need not be certified pursuant to article 

4413(29aa). Attorney General Opinion H-1286, a. On the other hsnd, a city 

marshal is a peace officer designated by article 2.12 of the Code of Criminal 

Procedure. See also article 999b, V.T.C.S. (“law enforcement officer” includes the city 

marshal). In order to serve lawfully as city marshal, therefore, an individual must be 

certified as qualified to be a peace officer. Because the indivihal in question is not so 

certified, he is not legally qualified to serve as city marshal. 

Bssed lpon the information you have supplied, we have some doubt as to whether 

this indivi&al was properly removed from office under article 1006, V.T.C.S. We need 

not address this issue, however, since we heve determined that hs was ineligible to 

serve as city marshal in the first place. Thus, the answer to your second question is 

p. 833 
Honorable Den M. Boulware - Page Three 0+262) 

that the office of city marshal has been technically vacant since the second 

officeholder resigned, whether or not it was afterward filled by a de facto officer. See 

Irwin v. State, 177 S.W. 2d 970 (Tex. Crim. App. 1944). Cf. Jackson v. Maypa 

Independent 39,2 S.W. 2d 892 (Tez. Civ. AK- Waco 1965, no writ). 

Pursuant to article 989, V.T.C.S., that vacancy may now be filled by the mayor, 

subject to confirmation by the city council. 

Your third question is whether this indiviaa!, who does not reside in the city of 

Briaroaks, may serve as city marshal or as a special police officer under article 995, 

V.T.C.S. We have stated that he ls ineligible to serve as city marshal because he is not 

certified as qualified to be a peace officer. In our view, he is also ineligible because 

he &es not reside in the city. V.T.C.S. art. 1003. See Attorney General Opinion G-181 

(l939); 56 Am. Jur. 2d Municipal Corporations S247,=305. 

Article 995, V.T.C.S., provides that the mayor of a city may “summon into 

service. . . all or as many of [its] citizens as in his judgment may be necessary” to 

accomolish the obiectives set forth m that statute. (Rmohasis added). Notwithstandirg other req&ements, an individal must at least be‘ a resident of a political 

community in order to be a “citizen” of that community. Seee~ e.g., Eierr&~tt v. City of 

Seattle. 500 P. 2d 101 (Wash. 19721, citing U.S. v. Crug 

Imperial Car Rental Corp. - 

hank, 92 U.S. 542 (1875); 

v. Lustier, 196 A. 2d 728 (R.I. 1964); Bergstrom v. 

Serpstrom. 478 F. SUDD. 434 (D.N.D. 19791. Since the indivlaal is not a resident of the 

city, he is not in ou~bpinion~ a “citix&~within the meaning of article 995, V.T.C.S.; 

thus, he ls not subject to the provisions of that article 

Your final question is whether, under the circumstances you describe, the mayor 

was authorized to press this indivitial into involuntary service as a special police 

officer in charge of enforcing city laws after he had been removed as city marshal. As 

we have observed, article 995 authorizes the mayor to conscript a special police force 

consisting of ‘all or as many citizens” as he deems necessary for the purposes specified 

therein. 

Article 995 may be relied upon in instances of public emergency or extraordinary 

need, but we think it is clear that it may not be utilized to circumvent exp,ress 

statutory requirements pertaining to the appointment of city officers. We thus 

conclude that, even were this individual a “citizen” of Briaroaks within the meaning of 

article 995, the mayor would have no authority to draft him as a special police officer 

with duties and responsibilities virtually identical to those of the position from which 

he had been dismissed. The proper method for filling the vacancy in the office of city 

marshal is set forth in article 989, V.T.C.S. 

SUMMARY 

1. The mayor of Briaroaks was not authorized to &aft a 

non-resident indivihal as a special police officer in charge of 

enforckg the city’s laws after that indivi&al hsd been removed 

as a city marshal, an office for which he bed not been certified 

p. 834 
Honorable Dan M. Boulware - Page Four (m-262) 

as qualified by the Commission cn.Law Enfcrcement Officer 

Standards and Education, and which is now vacant. 

2. Following the resignation of the second appointee, a 

vacancy exlsted in the office of city marshaL That vacancy has 

never been properly filled. Article 989, V.T.C.S., sets forth the 

proper method for filling the vacancy. 

3. An indivl&al who is not a resident of the city may not 

serve as city marshal or as a special police officer. 

4. An individual must heve peace officer certification to 

serve as city marshal but need not be so certified to serve as a 

special police officer under article 995, V.T.C.S. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMHTEE 

Susan Garrison, Acting Chaiman 

Jon Bible 

Jerry Carruth 

Rick Gilpin 

Bruce Yamgblwd 

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