Case Information
*1 The Attorne’y General of Texas Elarch 31, 1986
JIM MAnOX
Attorney General
Eonorable Dan 71. l)ent ~ini0l.i NO. J&f,62 District Attorney
P. 0. Box 400 Ret Whether a municipal police Hillsboro. Texas 76645 officer may serve warrants for Telex 91om74.1397 a fee Telecopier 51214750266 Dear Mr. Dent:
714 Jwkson, Sulte 700 oaib,Tx. 7S2024S96
You ask whether members of the regular ,police force of a home 2lu142.9944 rule city may legally~'serve arrest 'warrants during their "off-duty"
honrs es mewhers elf a reserve police force and wbetber they may retain 4924 Alberta Ave.. Suite IS0 a fee for such "of'f-duty" service. El Paso. TX. 79903.2793
915M3-344 The police officers of a home rule city are peace officers whose
duty it is "to preserve the peace within [their] jurisdiction." See Code Grim. Proc. arts. 2.12(4), 2.13; V.T.C.S. art. 999. A peace 1001 Texas, Sulte 700 officer's duties include the semice of arrest warrants. See Code liouston. TX. 77w2-3111 71- Grim. Proc. arts. 2.13, 2.16. Peace officers must be certifieaby the
state. V.T.C.S. art. 4413(29aa). 12(c); Attorney General Opinion E-1002 (1977). They are vested with the privileged authority to make- SW Broadway, Suite 312 arrests, see Code Grim. Proc. art. 14.03, and to possess handguns. Lubbock, TX. 79401.3479 Penal CodcS46.02, 46.03. Sw747-5239 A commissioned peace officer is, unlike
other city employe,es, usually deemed to be "011 duty" at all times and is obligated to emrcise his authority whenever there is a breach of uo8 N. Te”th. Suite 9 peace within his jurisdiction. Attorney General Opinion .JM-140 McAllbn, TX. 79591-1995 (1984) ; see Attorney General Opinion JM-57 (1983). Thus, your 512m92.4547 reference= city ,policc officers serving in a reserve force during their "off-duty" hours must be qualified; they would nevertheless be 200 MSh plaza, suite 4w "on-duty" for the purpose of exercising their duties and for certain San Antonlo, TX 792052797 government liability purposes. See Attorney General Opinions JM-140, 512l22Sa91 - JM-57.
An Equal OpportunItyI These considsrations, however, apply primarily to emergency Afflnnatl~ ActiOn Employer sltuatione, &, ,where the peace officer witnesses a trims when he is
not oa active duty. You ask about the establishment of an official reserve police fame, comprised of regular peace officers, to handle the execution of ,arrest warrants outside of their regular hours. A bowe rule city ha.8 broad power to establish a police force. Tax. Coast. art. XI, g5; V.T.C.S. art. 1175, 027; ses Kling v. City of Austin,. 62 S.W.2d 689, 690 (Tex. Civ. App. - Aan 1933, M writ). Ky not, however, enact ordinances which contravene the general laws of this state. Lower Colorado River Authority v. City of San Marcos, 523 S.W.2il 641. 645 (Tex. 1975). You ask specifically about *2 Donorable Dan V. Deot - Page 2 @M-462)
the establishaent of a reserve police force pursuant to article 998a. V.T.C.S.
Article 998a prwides, in part:
(a) The governing body of say city, towu, or village may prov:lde for the establishment of a police reserve j’a~rce. Members of the police reserve force, if authorized, shall be appointed at the discretion elf the chief of police and shall eerve as peace cfficers during the actual dis- charge of officia:. duties.
(b) The goveming body shall establish quali- fications and standards of training for members of the police reseme force, and may limit the size - of the police resmve force.
(c) Ho persos appointed to the police reserve force may carry Z weapon or otherwise *ct es a peece officer un% he has been approved by the gwcrning body. %ter approval, he may carry a weepou only whe; authortied by the Chief of Police, and when mischarging official duties as a .duly constituted isace officer.
(d) Members af the police reserve force serve at the discretion of the chief of police and may be called into setvice at any time the chief of police considers :Lt necessary to have additional officers to pret.eme the peace and enforce the law.
. . . .
(g) Reserve police officers shall act only in a enpplement*ry 7r acit y to the regular police force aud shall ?n no case assume the full time duties of ragulrz: police officers without first complying with ai1 requirements for such regular Police officers.
(h) This Act does uot limit the power of the mayor of any f,eneral-law city to summon into service a specis:L police force, as provided by Article 995, Revised Civil Statutes of Texas, 1925. (Emphasis added).
Thus, article 998s places soma limits on a home rule city's basic authority to establish a regular reserve police force. See also V.T.C.S. art. 4413(29aa), 16 (reserve police officers must also comply *3 Boqorable Dan V. Deut - Page 3 (J&462)
with certain officer standards and education requirements); Texas Board of Private Investigta:ors and Private Security Agencies v. G County Sheriff's Reserve, ?i89 S.W.2d 135. 137 (Tex. Civ. App. - San Antonio 1979, no writ); Dixon v. klcUil.len, 527 F. Supp. 711 (N.D. Tex.
1981); cf. Attorney GenG?L Opinion H-1286 (1978) (special ewergency police force under artic1.e 995. V.T.C.S.). The statute authorizes reserve police oE!Eicers powers which are more limited than granting those held by regular poUce officers. See V.T.C.S. art. 9980, O(c). Further, the statute indicates that rese~officers shall act only In a aupplementtary capacity. sec. (g). Consequently. although a member of the regular police force may perform extra duties during his "off-duty" time. we do n#x believe that article 998a governs this extra duty because the duties of regular and reserve peace officers are inconsistent.
Moreover, becsuse you ask about the regular members of the bone rule city's police force, article 5154c-1. V.T.C.S., the Fire and Police Employee Balations Act. rrmst also be addressed. See 120(e) (preemptive effect). This statute applies to "each sworn-&tified full-tine paid employee . . . who regularly servas In a professional Law enforcement capacity in the police department of any city. . . ." Sec. 3(2). The act requires the provision of compensation and ewploynent conditions whj.ch prevail in comparable private sector employment. Sec. 2(a). When a police officer for a city works during his "off-duty" hours for ,that city. he is working overtime. The prevailing wertiwe wages and working conditions should therefore be eonsulted. See generally Kierstead vi City of San Antonio, 636 S.W.2d 522, 529 (Tex. Civ. App. -'?an Antonio 1982), aff'd in part, rev'd in Part on other grounds, 643 S.W.2d 118 (1982). If a city has adopted the collective baruaininn srwisions of the act. uursuant to section. 5, it must also co&y w&l; those provisions. - *
The second aspect of your question is whether the compensation for these police officers may take-the form of a per-warrsnt fee.
Because you asphasise the $25 fee authorized in article 45.06 of the Texas Code of Criminal Procedure. the context of your question implies that the fees for these officers would be those specified in article 45.06. This article provides, in part:
The governing body of each incorporated city, town or village 13hall by ordinance prescribe such rules, not inconsistent with any law of this State, as way be proper to enforce, by axecution against the property of the defendant, or imprisonwent of the defendant, the collection of all fines imposesi by such court, and shall also have power to abopt such rules and regulations concerning the practice and procedure in such court as said governing body may deem proper, not inconsistent with any Law of this State. All such fines; a special expense, not to exceed $25 for
J Honorable Dan V. Dent - Page 4 (JM-462)
the issuance and service of a warrant of arrest for 'an offense under Section 38.11, Penal Code, or under Section 149. Uniform Act Regu&ating Traffic on Eighways (Article 6701d. Vernon's Texas Civil Statutes); and t1.e special expenses described in Article 17.04 de;lling with the requisites of a personal bond and a special expense for the issuance and servtce of a warrant of arrest. after due notice. uot to exceed $25, shall be paid into the city treasury-for the use and benefit of the city,~towu or vil:h&. (Emphasis added).
This statute sakes it clear that these fees must be paid into the city treasury. They may not be paid as compeusatioa to the arresting officer.
With regard to receiving fees from other sources, it is well- established that peace officers may not accept compensation from third parties or private sources for the performance of their official duties. Attorney General Cpinions X4-57 (1983); C-661 (1966); O-1565 (1939); see also Weber v. cl ty o; Sachscgk,S;l S.;iMt;6:: ;h&(Tex; Civ. App. - Dallas 1979. no writ ; cf. Y
S.W.2d 248. 250-251 (Ter. Civ. AnuT- Amarillo 1948. writ ief'd n.r.e.) ; see ganeralL~~Tume~ v. Ohio; ~273 U.S. 510 (1927). Thus, any compensation for theae officers must come directly from the city. Cf.
V.T.C.S. art. 999b; Attorney General Opinion JM-160 (1984) (interlox agreement for police proorction). As indicated, such compensation =st also comply with the requirements of article 5154c-1, V.T.C.S.
SUMMARP The members OE the regular police force of a home rule city may legally serve arrest warrants outside of their regular hours, hut may not receive, as compensation for such service, the fee provided for in article 45.06 of the Code of Criminal Procedure. The city rrmst also comply with the prevai:ling wage and working condition prwisions of article 5154c-1, V.T.C.S.
HATTOX Attorney General of Texas JACK HIGETOWRR
First Assistant Attorney Goneral
Honorable Dan V. Dent - Page 5 (33-462)
MARY KELLER
Executive Assistant Attomq General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
alai-, opinion Canmittee
Prepared by Jennifer Riggs
Assistant Attorney General