Can a Texas county attorney appoint or commission reserve or unpaid peace officers?

TX AG Opinion GA-0709: Can a county attorney commission reserve peace officers?

Plain-English summary

A state representative, passing along a question from a colleague, asked whether a county attorney has authority to commission reserve or unpaid peace officers. The Attorney General noted that the statutes contain no reference to a "nonpaid" peace officer, so the opinion addressed only "reserve" peace officers.

The term "reserve law enforcement officer" is defined in Occupations Code section 1701.001 by reference to specific provisions: officers appointed under Local Government Code sections 85.004 (sheriff reserve deputies), 86.012 (constable reserve deputies), and 341.012 (a municipal police reserve force), and Water Code section 60.0775 (a navigation district volunteer police reserve force). Chapter 1701 contains no authorization for a reserve peace officer under a county attorney. The Code of Criminal Procedure's peace-officer definition in article 2.12 likewise lists only reserve sheriff deputies, reserve deputy constables, and reserve municipal police officers who hold a permanent peace officer license, and no other reserve peace officers.

Chapter 41 of the Government Code, which governs county attorneys' powers, lets a county attorney employ investigators, who are peace officers under article 2.12(5), but it gives no authority to commission or appoint reserve investigators or reserve peace officers. Because the Legislature specifically enumerated who may appoint reserve peace officers and did not include county attorneys, and because a public officer has only the powers expressly conferred or necessarily implied, the Attorney General concluded that a county attorney is not authorized to appoint reserve peace officers.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The statutes defining reserve peace officers and county attorney powers may have been amended since 2009. Confirm the current law before relying on this conclusion.

Who this opinion affected (as of 2009)

County attorneys: The opinion concluded they had no authority to commission or appoint reserve peace officers, since no statute granted that power.

Sheriffs, constables, municipalities, and navigation districts: The opinion confirmed these were the appointing authorities the Legislature named for reserve peace officers, distinguishing them from county attorneys.

People serving or seeking to serve as reserve officers under a county attorney: The opinion meant such an arrangement lacked statutory authority, so a county attorney could not lawfully commission them.

Common questions

Can a county attorney swear in reserve peace officers?
No, the opinion said. No statute gives a county attorney authority to appoint or commission reserve peace officers.

Who can appoint reserve peace officers?
The opinion identified sheriffs (reserve deputies), constables (reserve deputy constables), municipalities (a police reserve force), and navigation districts (a volunteer police reserve force).

Doesn't a county attorney have investigators?
Yes. The opinion noted a county attorney may employ investigators, who are peace officers, but found no authority to appoint reserve investigators or reserve peace officers.

Why can't the county attorney just do it anyway?
The opinion applied the rule that a public officer has only the powers expressly granted or necessarily implied, and no statute gave a county attorney this one.

Background and statutory framework

"Reserve law enforcement officer" is defined in Occupations Code section 1701.001(6) by reference to Local Government Code sections 85.004 (sheriff reserve deputies), 86.012 (constable reserve deputies), and 341.012 (municipal police reserve force), and Water Code section 60.0775 (navigation district volunteer police reserve force) (Tex. Occ. Code Ann. § 1701.001(6) (Vernon Supp. 2008); Tex. Loc. Gov't Code Ann. §§ 85.004, 86.012 (Vernon 2008), 341.012 (Vernon 2005); Tex. Water Code Ann. § 60.0775 (Vernon Supp. 2008)). Article 2.12 of the Code of Criminal Procedure lists reserve sheriff deputies, reserve deputy constables, and reserve municipal police officers with a permanent license as peace officers, plus investigators of county attorneys, and no other reserve peace officers (Tex. Code Crim. Proc. Ann. art. 2.12(1), (2), (3), (5) (Vernon Supp. 2008)). Chapter 41 of the Government Code lets a county attorney employ investigators but does not authorize appointing reserve investigators or peace officers (Tex. Gov't Code Ann. §§ 41.001-.310 (Vernon 2004 & Supp. 2008), 41.102(a) (Vernon Supp. 2008)). The opinion relied on the principle that the Legislature knows how to bestow authority when it intends to (FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000); CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coal. of Cities, 263 S.W.3d 448, 461 (Tex. App.-Austin 2008, pet. filed)), and that a public officer has only expressly conferred or necessarily implied powers (Bullock v. Calvert, 480 S.W.2d 367, 371 (Tex. 1972)).

Citations

Statutes:

• Tex. Occ. Code Ann. § 1701.001(6) (Vernon Supp. 2008)
• Tex. Loc. Gov't Code Ann. §§ 85.004, 86.012 (Vernon 2008), 341.012 (Vernon 2005)
• Tex. Water Code Ann. § 60.0775 (Vernon Supp. 2008)
• Tex. Code Crim. Proc. Ann. art. 2.12, (1), (2), (3), (5) (Vernon Supp. 2008)
• Tex. Gov't Code Ann. §§ 41.001-.310 (Vernon 2004 & Supp. 2008), 41.102(a) (Vernon Supp. 2008)

Cases:

• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000)
• CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coal. of Cities, 263 S.W.3d 448, 461 (Tex. App.-Austin 2008, pet. filed)
• Bullock v. Calvert, 480 S.W.2d 367, 371 (Tex. 1972)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0709
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0709.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

April 20, 2009

The Honorable Pete Gallego
Chair, Committee on Criminal Jurisprudence
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0709

Re: Authority of a county attorney to issue commissions for reserve or nonpaid peace officers (RQ-0730-GA)

Dear Representative Gallego:

You have requested that we answer a question submitted by your colleague, Representative Joe Driver, former chair of the Committee on Law Enforcement. We were asked whether a county attorney has authority to commission reserve or nonpaid peace officers.[1] We find no reference in the statutes to a "nonpaid" peace officer and thus consider a county attorney's authority only with respect to "reserve" peace officers. But see TEX. WATER CODE ANN. § 60.0775 (Vernon Supp. 2008) (describing volunteer police reserve force).

The term "reserve law enforcement officer" is defined in section 1701.001, Occupations Code, to mean those officers appointed under sections 85.004, 86.012, and 341.012, Local Government Code, and section 60.0775, Water Code. TEX. OCC. CODE ANN. § 1701.001(6) (Vernon Supp. 2008). Respectively, those provisions authorize the appointment of sheriff and constable reserve deputies, a municipal reserve police force, and a navigation district volunteer police reserve force. See TEX. LOC. GOV'T CODE ANN. §§ 85.004 (Vernon 2008) (providing for appointment of reserve deputies by the sheriff), 86.012 (providing for the appointment of reserve deputy constables), 341.012 (Vernon 2005) (authorizing the governing body of a municipality to establish a police reserve force); TEX. WATER CODE ANN. § 60.0775 (Vernon Supp. 2008) (providing for the establishment of a volunteer police reserve force). Chapter 1701 contains no authorization for a "reserve" peace officer under the auspices of a county attorney.

Three of the provisions in section 1701.001 defining reserve law enforcement officer are also referenced in article 2.12, Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 2.12 (Vernon Supp. 2008). In article 2.12, the definition of the term peace officer includes express reference to particular reserve officers. Article 2.12(1) provides that "reserve [sheriff] deputies who hold a permanent peace officer license issued under Chapter 1701, Occupations Code" are peace officers. See id. art. 2.12(1). And "reserve deputy constables who hold a permanent peace officer license issued under Chapter 1701" are peace officers. See id. art. 2.12(2). Finally, "reserve municipal police officers who hold a permanent peace officer license issued under Chapter 1701" are defined by article 2.12 as peace officers. See id. art. 2.12(3). Aside from these three sections, article 2.12 makes no provision for other types of "reserve" peace officers.

Chapter 41 of the Government Code governs the powers and duties of county attorneys. See generally TEX. GOV'T CODE ANN. §§ 41.001-.310 (Vernon 2004 & Supp. 2008). It authorizes a county attorney to "employ . . . investigators." Id. § 41.102(a) (Vernon Supp. 2008) (emphasis added). An investigator of a county attorney is defined as a peace officer under the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 2.12(5) (Vernon Supp. 2008) (defining the term "peace officer" to include investigators of county attorneys). However, we find no authority in chapter 41 for a county attorney to commission or appoint "reserve" investigators or peace officers.

In chapter 1701 of the Occupations Code and article 2.12 of the Code of Criminal Procedure, the Legislature specifically enumerated those officers with authority to appoint "reserve" peace officers and thereby demonstrated it knows how to bestow that authority. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on the principle of statutory construction that the Legislature knows how to enact laws effectuating its intent); accord CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coal. of Cities, 263 S.W.3d 448, 461 (Tex. App.-Austin 2008, pet. filed). It has not provided that authority with respect to county attorneys. Further, chapter 41 of the Government Code does not authorize a county attorney to appoint "reserve" investigators or peace officers. See TEX. GOV'T CODE ANN. §§ 41.001-.310 (Vernon 2004 & Supp. 2008). Public officers, such as a county attorney, possess only such powers as are expressly conferred upon them by law or are necessarily implied from the powers so conferred. See Bullock v. Calvert, 480 S.W.2d 367, 371 (Tex. 1972). Thus, because no statute provides express or necessarily implied authority, we must conclude that a county attorney is not authorized to appoint reserve peace officers.

SUMMARY

A county attorney is not authorized to appoint reserve peace officers.

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[Footnote 1: See Request Letter (available at http://www.texasattorneygeneral.gov).]