Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
December 15, 1978
JOHN L. HILL
Attorney General
Honorable Fred Toler Opinion No. H- 12 8 6
Executive Director
Texas Commission on Law Enforcement Re: Whether citizens sum-
Officer Standards & Education moned as special police force are
1106 Clayton Lane, Ste. 220-E subject to requirements of
Twin Towers Office Building article 4413(29aal.
Austin, Texas 78723
Dear Mr. Toler:
You ask whether citizens summoned into service as a special police
force by a mayor pursuant to article 995, V.T.C.S., are subject to the
requirements of article 4413(29aa), V.T.C.S., a statute relating to minimum
physical, mental, moral and educational standards for law enforcement
officers. Article 995, enacted more than one hundred years ago, provides:
Whenever the mayor deems it necessary, in order to
enforce the laws of the city, or to avert danger, or to
protect life or property, in case of riot or any outbreak
or calamity or public disturbance, or when he has
reason to fear any serious violation of law or order, or
anv outbreak or anv other danaer to said city, or the
inhabitants thereof, he shall summon into se&ice as a
yecial police force, all or as many of the citizens as
in his judgment may be necessary. Such summons may
be bv proclamation or other order addressed to the
citiz& generally, or those of any ward of the city, or
subdivision thereof, or may be by personal notification.
Such special police force while in service, shall be
subject to the orders of the mayor, shall perform such
duties as he may require, and shall have the same
power while on duty as the regular police force of said
city.
(Emphasis added). Acts 1875, 14th Leg., 2d Session, ch. C, at 119.
If such persons must meet article 4413(29aa) requirements, then others
similarly situated must meet them, too. Article 995 applies only to general
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Honorable Fred Toler - Page 2 (~-1286)
law cities, but some home rule cities have included similar provisions in their
charters. Attorney General Opinion M-246 (1968). Moreover, article 2.14, Code of
Criminal Procedure, provides that police officers meeting resistance may also
“summon a sufficient number of citizens to overcome the resistance.” All persons
summoned by the officer are bound to obey, and if they do not obey are required to
be reported to the appropriate prosecuting attorney. Code Crim. Proc. arts. 2.15,
2.14. Before the new Penal Code was adopted in 1973, a failure or refusal to aid a
magistrate or officer in the performance of his duty (e.g., a refusal to respond to
an article 995 summons) when he was lawfully required to do so was made subject
to a one hundred dollar fine by former Penal Code article 348.
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
persons as being qualified to be “peace officers” designated by article 2.12, Code of
Criminal Procedure. According to this legislative act, unless persons appointed as
peace officers within the meaning of the Act have been so certified, they commit a
crime by accepting the appointment. V.T.C.S. art. 4413(29aa), SS 2(c), 2(h), 6(b),
6(c), 6(e). This statute was enacted in 1965 while former Penal Code article 348
was still in force.
Thus, the Legislature placed the citizens of this state in a legal dilemma in
1965 if, when it enacted the law creating the Commission it intended that article
4413f29aa) apply to citizens summoned as a special police force by a mayor, or
summoned by a police officer to aid him. As the law would stand in that event,
citizens who failed for any reason to obey such an order could have been guilty
before 1973 of a crime under former Penal Code section 348; however, if they
obeyed without first being certified by the Commission, they could have been guilty
of a different crime under article 4413(29aa). We do not believe such was the
legislative intent. -See Polke v. State, 118S.W.2d 793 (Tex. Crim. App. 1938).
Statutes that deal with the same general subject are considered in pari
materia and are to be read together, harmonizing conflicts if possible.
Houston Ind. School Dist., 29 S.W.2d 312 (Tex. 1930). The intended thrust o7-Yartlc e
4413(29aa) is revealed by section 2(b) thereof which authorizes the Commission to
Establish minimum educational, training, physical, mental
and moral standards for admission to em lo ment as a peace
officer: (1) in permanent positions,--f-f-
and 2 in temporary or
probationary status.
(Emphasis added). The authority to certify persons as being “qualified under the
provisions of this Act” to be peace officers is given immediately afterward in
section 2(c). We think these provisions reach only persons seeking employment as
peace officers, and not citizens involuntarily pressed into service as keepers of the
peace. See Code Crim. Proc. arts. 6.05 (citizens called to aid peace officer!, 8.01,
8.05 (of?&rs may call for aid). -Cf Code Crim. Proc. arts. 8.08, 8.09 (special
P. 5076
Honorable Fred Toler - Page 3 (H-128 6 )
constables), art. 45.20 (execution of justice’s warrant); V.T.C.S. art. 998
(appointment of regular police officer).
This conclusion is suggested by an analysis of section 2A of article 4413(29aa),
added to the statute in 1971. That provision authoriies and requires the Commission
to establish minimum standards for reserve law enforcement officers, distinguish-
ing between reservists and regularly employed policemen [(including those
employed in temporary positions or on probationary status); see Attorney General
Opinions M-282 (1968); WW-997 (196l)l. The statutory authorit- establish a police
reserve force is article 998a, V.T.C.S., also enacted in 1971. It contained from the
first a grandfather clause allowing persons previously serving as reserve law
enforcement officers to serve as reservists until January 1, 1973, without fulfilling
the minimum standards established by the Commission on Law Enforcement Officer
Standards and Education. Acts 1971, 62nd Leg., ch. 829, 5 6, at 2532. It was
apparently the understanding of the Legislature in 1971 that persons not regularly
employed as policemen, even though serving as reserve law enforcement officers,
were not subject to the provisions of article 4413(29aa) prior to its amendment.
This legislative construction is in accord with the apparent thrust of the
statute, which is to upgrade the responsible effectiveness of regular law
enforcement personnel by encouraging the development of high standards capable
of practical local implementation. We do not believe the Legislature intended by
the enactment of article 4413(29aa) to prevent officers from calling upon citizens
for aid when the need arises, or to require citizens to decide at their peril whether
answering the call would be lawful. Cf. Penal Code 5 9.51 (justification for use of
force). See Weatherford v. State, 21.W. 251 (Tex. Crim. App. 1893) (citizens
summoneflo aid officers do not act at their own peril). See also Presle v. Ft.
Worth & D.C. Ry. Co., 145 S.W. 669 (Tex. Civ. App. - Amarillo -1912, no writ
{public policy protects one involuntarily aiding officer).
Article 4413(29aa) does not expressly refer to article 995 or the power of an
officer to summon citizens to his aid, but it does contain the following language in
section 8:
Except as expressly provided in this Act, nothing herein
contained shall be deemed to limit the powers, rights, duties
and responsibilities of municipal or county governments. . . .
The Commission has interpreted this language as excepting from its jurisdiction
those citizens summoned into service by a mayor under the powers vested in such
officers by article 995, V.T.C.S. Cf. Code Crim. Proc. arts.2.10, 2.09 (magistrates).
Your administrative interpretationof more than a dozen years standing has not
been repudiated by the Legislature, and it is particularly significant in the light of
the legislative treatment accorded police reservists in 1971. Cf. V.T.C.S. art.
998afh). We believe the courts of this state would hold that personsummoned by a
mayor to constitute a special police force pursuant to article 995 are not subject to
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Honorable Fred Toler - Page 4 (H-12 86 1
the requirements of article 4413(29aa) unless they subsequently become voluntarily
employed as peace officers. Compare Whatle v. State, 8 S.W.2,d 174 (Tex.
W.2,d 174 (Tex. Grim:
Crim.
App. 1928); Gonzales v. State,
State,-740
110 S.W. 740
- (Tex.
Tex. Grim.
Crim’ :~~~p~i908);
App. 1908); Uhr v. Lambert,
188 S.W. 946 (Tex. Civ. App. - San Antonio 1916, no writh writ); Attorney General
Opinions H-1002 (1977); M-767 (1971); M-246 (1968); G-5621 (1946). While citizens so
While citizens so
summoned may be peace officers for other purposes, they are not persons
‘--J ;re not persons
“appointed as peace officers” within the meaning of article 4413(29aa).
13(29aa).
SUMMARY
Persons summoned by a mayor to constitute a special police
force pursuant to article 995, V.T.C.S., are not subject to
the requirements of article 4413(29aa) unless they sub-
sequently become voluntarily employed as peace officers.
General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
jsn
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