of the authorities we have cited, we conclude that a police 05cer may be shown to be a de facto police 05~4~. even though he has not taken the oath required by wide XVI. section 1 of the Texas Consdtution, and that a de tkto peace 05cer may validlyarrestsomeonewithoutawanantwhereauthorixdbylaw. Anarrestbyan unhe appointed police o&cf who is a de f&to 05cer mda state hw and who may legally make NIX& unda state law would not be an uareasonable seizure Under the Fourth AmeadmeM. See M-e v. Con?@of S@oIk, 968 F.2d 1480 (2d Cii. 1992).
SUMMARY
Artide XVI, section 1 of the Texas ConstituGonrequkes elected udappointedo5~to~~orthofo5~rad,~tour amendment approved by the voters on November 7. 1989. to'sign and5eastatementwiththexcrBaryofstatebeforetakingtheoath of 05ce. In the absence of judicial guidance on whether city police officersmusttaketheoathand5ethe aatamntrequiredbyartide ~sectionl,wecMnotd~e~ornotadtypoti~ officer is an appointed 05ccr for purposes of these provisions. We the&ore advise you to err on the side of caution, and to assume that apoliao5cermudtlketheoclthrcquirrdbyutideXVI~onl of the Texas Constitution, until the courts answer this question. The opinion of the Texas Court of Criminal Appeals is especially impo~~~seitisthecourtthatrddressesquestionsofthe validitybfasearchandseizureconductedbyapol.iceofficer.
Employeesofthepoiicedepartmentwhoarenotpeacco5cers within article 2.12 of the Code of Criminal Procedure sre not required by title XVI, section 1 of the Texas Constitution to take the oath of office or 5e the &&ment.
We find no procedure whereby police 05ccrs who have already been hired may comply with the oath provision retroactively. but we rdvisepoliceo5~whohavenotcompliedwiththis~~onto do so as soon as possible.
Officersunderaci~serviceaystemwhowereappointedand took the constitutional oath before the 1989 am&dment need not now file the statement required by that mendnmt.
Article XVI, section 30b provides that the two-year term limitation of article XVI, section 30 does not apply to an 05~er appointed under a numidpal civil service system established by statute or charter. if appointment to and removal fiom 05ce UC governed by the civil service provisions.
p. 2083 ThcHonorableFrcdHill - Page 9 W-381) The Honorable Doyle Willis
Arrests made in accordance with statute by de facto police 05cers an valid. An individual may be a de facto police 05c.q even though he has not taken the oath of 05cc.
DAN MORALES Attorney General of Texas
JORGE VEGA Fii Assistant Attorney General
SARAH J. SHIRLEY Chair, Opinion Committee
PmparedbySusanL.Garrison Assistant Attorney General
p. 2084