Case Information
*1 The Attorney General of Texas November 24, 1981
MARK WHITE
Attorney General Opinion No. W-394 Honorable Jim Hapel
Supreme Court Building Criminal District Attorney P. 0. Box 1254a Re: Whether articles 998, 999 Brasoria County Courthouse Austin, TX. 78711 Angleton, Texas 77515 and 999a. V.T.C.S.. apply to 512/475-2501 towns incorporated under pro- Telex 9101874-1367 TekoDier 5121475-9286 visions of chapter 11 of Title V.T.C.S.; or. in the 28, alternative, what provisions 1507 Main St.. Suite 1400 for the appointment of peace Dallas. TX. 75201 officers apply when a town has 214!?42B944 incorporated been under chapter 11 of Title 28 4924 Alberta Ave., Suite 160 El Paso. TX. 79905 Dear Mr. Mapel: 915l533.3494
You have inquired whether the provisions of articles 998. 999 and 1220 Dallas Ave., Suite 202 999a, V.T.C.S., would apply to a town organized under the provisions Houslon, TX. 77002 of chapter 11 of Title 28, V.T.C.S. Your concern arises from the 713/6- possibility that a town under your jurisdiction might appoint an unauthorized person to act as a peace officer leaving that person open to possible criminal prosecution under section 37.11 of the Texas SO5 Broadway, Suite 312 Lubbock. TX. 79401 Penal Code. SOB!747-5239
The town in question was incorporated under provisions which are 4309 N. Tenth, Suile B [51216824547] McAllm. TX. 78501 codified as chapter Il. Title 28. Its population has declined until You state it has reached the present level of thirty (30) persons. there is still an acute need for local law enforcement beyond the
level that can be provided by the sheriff of Brazoria County. At the 200 Main Plaza. Suile 400 San Antonio, TX. 78205 [51212254191] present time, the office of city marshal is vacant because none of the At residents are interested in seeking election to such office. times since incorporation the town has operated under the provisions all
of chapter 11 of Title 28.
It is clear that articles 998. 999 and 999a do not apply to any town which has not met the prerequisites set out in article 961, V.T.C.S. Article 961 provides in mandatory language in its last sentence: "The provisions of this title shall not apply to any city, town or village until such provisions have been accepted by the council in accordance with this article."
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Honorable Doyle W. Neighbours - Page 2 etw-394)
Under your set of facts, the town council is authorized in section 7, article 1146 to appoint "such officers, other than those mentioned in this chapter. as shall be deemed necessary to carry out the provisions of the same." In the case of Early v. State, 97 S.W. 82 (Tex. Crim. App. 1906). the court held that the predecessor to article 1146 empowered the board of aldermen of such a town or village to appoint policemen. It should be noted there is no residence requirement in chapter 11, Title 28 for the officers appointed under article 1146.
As long as the person appointed under article 1146 does not have a "dual office holding" problem, see Attorney General Opinion V-70 (1947), and is properly certifiedby the Law Enforcement Standards Commission, he would be lawfully authorized to act as a peace officer.
SUMMARY Articles 998. 999, and 999a. V.T.C.S., do not apply to towns incorporated under chapter 11, Title 28, unless said town follows the prerequisites of article 961. V.T.C.S. Chapter 11 towns may utilize the provisions of article 1146 to lawfully appoint the needed peace officers.
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Attorney General of Texas JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by W. Reed Lockhoof
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
W. Reed Lockhoof
Jim Moellinger
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