# The Attorney General ofTexas October 30, 1980

Honorable Dan M.Boulware Johnson County Attorney Courthouse Clebume, Texas 75031 Opinion No. !.Uv-262 Re: Appointment of acity 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. Athird person wasappointed; 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. Youask 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 asa 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, ifso, howisthis vacancy to befilled? The individual is not aresident 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, inpertinent 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 ofthe citizens as inhisjudgment may be necessary. Article 977, V.T.C.S., provides that “[olther officers of the [city] shall be a. .. marshaL

..who may either beappointed or elected asprovided byordinance.” Article 999, V.T.C.S., provides that the city marshal is the ex officio chief ofpolice, and that he is respwsible, inter aJia, for preventing disturbances, arresting violators of the public peace, and executing all Writsand process issued by designated courts. 

### Inlight of these provisions, a city marshal is clearly en officer of the city. See Uhr v. Lsncaster, 187S.W. 379 (Tex. Civ. App.-San Antonio 1916,no writ); Miller? CitPwts 282 S.W. 2d 264 (Tex. Civ. App.-San Antonio 1955,wrrt rePd n.r.e. ------Y srtlc es977and 999, V.T.C.S., to bewnstrued 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 duenotice and anopportunity tobeheard; 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 infavor ofsaid resolution.” Whena 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 bythe city council,” article 989,V.T.C.S. WeWillanswer 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 asqualified to beapeace officer. Because the indivihal inquestion isnot so certified, he isnot legally qualified to serve as city marshal. Bssed lpon the information you have supplied, wehave some doubt asto whether this indivi&al was properly removed from office under article 1006,V.T.C.S. Weneed not address this issue, however, since we heve determined that hs was ineligible to serve as city marshal 

### inthe first place. Thus, the answer 

### to your second question is

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that the office of city marshal has been technically vacant since the second officeholder resigned, whether ornot it wasafterward filled bya de facto officer. See Irwin v. State, 177 S.W. 2d 970 (Tex. Crim. App. 1944). Cf. Jackson v. Maypa Independent 39,2S.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 bythe 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. Wehave stated that he lsineligible to serve as city marshal because he isnot certified as qualified to be a peace officer. In our view, he isalso ineligible because he &es not reside in the city. V.T.C.S. art. 1003. See Attorney General Opinion G-181 (l939); 56Am. Jur. 2dMunicipal 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 hisjudgment 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&~ttv. 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 isnot aresident ofthe city, he is not in ou~bpinion~ a “citix&~within the meaning of article 995, V.T.C.S.; thus, he lsnot 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 hadbeen removed as city marshal. As we have observed, article 995 authorizes the mayor to conscript aspecial police force consisting of ‘all or as many citizens” as he deems necessary for the purposes specified therein. Article 995 may be relied upon ininstances ofpublic 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” ofBriaroaks within the meaning of article 995, the mayor would have no authority to draft him asaspecial 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 inthe office ofcity marshal is set forth inarticle 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

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as qualified by the Commission cn.Law Enfcrcement Officer Standards and Education, and which isnowvacant. 2. Following the resignation of the second appointee, a vacancy exlsted inthe office ofcity 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 asaspecial 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 ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAYIII Executive Assistant Attorney General Prepared byJon Bible Assistant Attorney General APPROVED: OPINION COMMHTEE Susan Garrison, Acting Chaiman Jon Bible Jerry Carruth Rick Gilpin Bruce Yamgblwd

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