Can a Texas justice of the peace hire and supervise its own bailiff or warrant officer, and is that employee automatically a peace officer?

Plain-English summary

The Cameron County District Attorney asked the AG about an arrangement in which the commissioners court let two justices of the peace each employ a "bailiff/warrant officer." Under a memorandum of understanding, the constable for Precinct 3 would sponsor each officer's law-enforcement license, provide training, and supervise their peace-officer duties, while the justice of the peace would appoint and supervise the same officer's courtroom work. The DA asked whether that was legally sound: could a justice of the peace hire and supervise such an employee, could the employee be a Texas peace officer, and could a constable in one precinct carry the commission of an employee assigned to a justice court in a different precinct.

The AG worked through the questions one at a time. No statute creates a county job titled "warrant officer" or "warrant bailiff," and the bailiff-appointment statutes in Chapter 53 of the Government Code apply only to specific district and county courts, not to justice courts. But a separate statute, Local Government Code section 151.001, lets a precinct officer such as a justice of the peace apply to the commissioners court for authority to appoint deputies, assistants, or clerks, and in a large county like Cameron the justice may seek authority to appoint "any other kinds of employees." So the AG concluded a justice court may appoint and supervise an employee to do the traditional duties of a court bailiff, with the caveat that duties needing extra qualifications, like peace-officer duties, are governed by other law.

On the peace-officer question, the AG concluded that a justice-court employee is not a peace officer simply by virtue of the job. To be a Texas peace officer a person must be both licensed by TCOLE and serving in a position designated by statute, and justice-court employees are not among the positions listed in article 2.12 of the Code of Criminal Procedure. The statute does not bar them from qualifying as a peace officer in some other recognized capacity, though. Finally, the AG concluded a court would likely hold that a constable in one precinct cannot employ and commission a deputy to primarily serve a justice court in a different precinct, because a constable may add a deputy only on a showing that the deputy is needed for business originating in the constable's own precinct.

Currency note

This opinion was issued in 2018. 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.

What the opinion meant for those who asked

The Cameron County District Attorney (who requested the opinion): The opinion answered that the basic hiring structure was permissible. On the AG's reading, the commissioners court could authorize the justices of the peace to appoint and supervise bailiff-type employees under Local Government Code sections 151.001 and 151.002, but the peace-officer side of the arrangement was constrained by separate law.

Justices of the peace (as the opinion described them): The opinion treated the justice of the peace as able to appoint and supervise an employee for traditional courtroom bailiff duties through the commissioners-court application process, while noting that any peace-officer functions depended on the employee separately qualifying as a peace officer under article 2.12.

Constables (as the opinion described them): The opinion concluded that a constable's authority to employ and commission a deputy is tied to business originating in the constable's own precinct, so a court would likely hold a constable could not carry the commission of a deputy who primarily performs peace-officer duties for a justice court in a different precinct.

Common questions

Can a Texas justice of the peace have its own bailiff?
According to the AG, yes, through the commissioners court. No statute creates a "warrant officer" job for justice courts, but Local Government Code section 151.001 lets a justice of the peace apply to the commissioners court for authority to appoint employees, and section 151.002 lets the court grant it. That covers an employee doing the traditional duties of a court bailiff.

Is a justice-court bailiff automatically a peace officer?
No, on the AG's reading. A Texas peace officer must be licensed by TCOLE and serve in a position the statute designates, and justice-court employees are not on the article 2.12 list. They are not peace officers just from the job, although they could qualify as a peace officer in another capacity the statute recognizes.

Can a constable in one precinct commission an officer who works for a justice court in another precinct?
The AG concluded a court would likely say no. A constable may employ a deputy only by showing the deputy is needed to handle business originating in the constable's own precinct, so a deputy assigned primarily to a justice court in a different precinct falls outside that authority.

Background and statutory framework

Chapter 53 of the Government Code governs the appointment of bailiffs, but only for specified district and county courts (Tex. Gov't Code §§ 53.001-.128); some of those bailiffs are statutorily designated peace officers (id. § 53.0071) and the judge may ask the sheriff to deputize them (id. § 53.007(a), (b)). A justice of the peace may designate a clerk under section 27.056, but no statute specifically addresses a justice of the peace appointing a bailiff by that title. The opinion noted that the term "warrant officer" appears in the statutes in three unrelated senses (a Texas National Guard rank under Tex. Gov't Code § 432.001(14); court-security personnel under Tex. Code Crim. Proc. art. 102.017(d-1)(14); and certain municipal courts of record under Tex. Gov't Code § 30.00009(b)), none of which creates a county or precinct job.

The authority the AG relied on comes from Local Government Code section 151.001(a), which lets a precinct officer who needs deputies, assistants, or clerks apply to the commissioners court for authority to appoint them, and adds that in counties over 190,000 in population the officer may seek authority to appoint "any other kinds of employees." Under § 151.002, the commissioners court that receives the application may grant it. (A separate provision, § 151.901, authorizes secretarial personnel.)

On peace-officer status, the opinion cited Cleveland v. City of Elmendorf, 388 F.3d 522, 529 (5th Cir. 2004), which held that a Texas peace officer must be both TCOLE-licensed and used in a statutorily designated capacity, together with article 2.12 of the Code of Criminal Procedure and the definition of "peace officer" in Occupations Code section 1701.001(4). On a constable's authority to add a deputy, the opinion relied on Local Government Code section 86.011(a) and the requirement in Occupations Code section 1701.303(a) that the hiring agency file the license application. The opinion also pointed to a 1990 opinion, Tex. Att'y Gen. Op. No. JM-1222, which had concluded a municipality could give a peace officer the title of warrant officer with bailiff and process-serving duties.

Citations

Cases:

• Cleveland v. City of Elmendorf, 388 F.3d 522, 529 (5th Cir. 2004)

Statutes:

• Tex. Gov't Code §§ 27.056, 30.00009(b), 53.001-.128, 53.007, 53.0071, 432.001(14)
• Tex. Loc. Gov't Code §§ 86.011(a), 151.001, 151.002, 151.901
• Tex. Code Crim. Proc. arts. 2.12, 102.017(d-1)(14)
• Tex. Occ. Code §§ 1701.001(4), 1701.303(a)

Prior AG opinions:

• Tex. Att'y Gen. Op. No. JM-1222 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0201
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0201.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 16, 2018

The Honorable Luis V. Saenz Opinion No. KP-0201
Cameron County District Attorney
964 East Harrison Street, Fourth Floor Re: Authority of a Justice of the Peace to
Brownsville, Texas 78520 hire and supervise a bailiff-and-warrant
officer (RQ-0197-KP)

Dear Mr. Saenz:

    You state that the Cameron County Commissioners Court authorized two county justices of the peace to each employ a "bailiff/warrant officer," one for Precinct 5, Place 2 and one for Precinct 5, Place 3. [1] At the direction of the commissioners court, you tell us each justice entered into an Interdepartmental Memorandum of Understanding ("Memorandum") with the constable for Precinct 3, listing the bailiff/warrant officer's functions and qualifications, and providing for the officer's supervision. Request Letter at 1-2. [2] The Memorandum with each justice refers to the position as a "warrant officer" or "warrant bailiff," and provides that the justice will appoint and supervise the warrant bailiff who serves the justice's court. Memorandum at 1. The Memorandum provides that the warrant bailiff will (1) perform courtroom and related functions in aid of the justice, and (2) serve warrants, subpoenas, garnishment, and other process issuing from the court that are typically served by peace officers. The Memorandum provides that the constable for Precinct 3 will "sponsor the commission of each warrant officer's [Texas Commission on Law Enforcement ("TCOLE")] certification/license as an accommodation to the judge," provide the warrant bailiff with public safety and law enforcement training, and authorize the warrant bailiffs to carry handguns and other weapons and equipment "in keeping with reasonable and accepted standards for courtroom duties." Id. Finally, the Memorandum requires the constable for Precinct 3 to supervise and control the warrant bailiff when performing law enforcement duties. Id.

    You first ask whether a commissioners court may "authorize a Justice of the Peace to hire and directly supervise a bailiff/warrant officer." Request Letter at 1. The statutes do not designate any county or precinct employee's title as "warrant officer," "warrant bailiff," or any similar term. [3]

    Chapter 53 of the Government Code governs the appointment of bailiffs, but only those who serve specific district and county courts. See generally TEX. GOV'T CODE §§ 53.001-.128. [4] A justice of the peace may designate a clerk, whose duties may include administering oaths and affidavits, maintaining the central docket and judgment index, and "perform[ing] the other duties required by law and assist the judge in handling matters before the court." Id. § 27.056. [5] However, no statute specifically addresses the authority of a justice of the peace to appoint a bailiff by that title.

    Nevertheless, a precinct officer such as a justice of the peace "who requires the services of deputies, assistants, or clerks in the performance of the officer's duties" may apply to the commissioners court for authority to appoint the employees. TEX. LOC. GOV'T CODE § 151.001(a). In counties with a population of more than 190,000, such as Cameron County, the precinct officer may seek authority "to appoint any other kinds of employees." [6] Id. A commissioners court receiving such an application may authorize the appointment of the requested employees. Id. § 151.002. Accordingly, these statutes authorize a justice court to appoint and supervise an employee to perform the traditional duties of a court bailiff, although any of the duties that require additional qualifications, such as duties performed as a peace officer, may be subject to other law. Id. §§ 151.001, .002.

    You ask secondly whether a justice court employee is eligible to be commissioned as a Texas peace officer. Request Letter at 1. To be a peace officer in Texas, a person "must be both licensed by [TCOLE] and be utilized in a capacity that is designated by Texas statute." Cleveland v. City of Elmendorf, 388 F.3d 522, 529 (5th Cir. 2004) (citing TEX. CODE CRIM. PROC. art. 2.12). Article 2.12 of the Code of Criminal Procedure defines "peace officer" as the persons elected, appointed, or commissioned to the positions listed in that statute. TEX. CODE CRIM. PROC. art. 2.12; see also TEX. OCC. CODE § 1701.001(4) (defining "peace officer"). Employees of a justice court are not listed among the persons defined as peace officers in article 2.12 and therefore are not peace officers by virtue of that employment. However, the statute does not prevent those employees from qualifying as a peace officer in some other capacity recognized by the statute.

    Third, you ask whether a constable in one precinct may "carry the commission" of an employee of a justice court in a different precinct. Request Letter at 1. A constable does not possess ad hoc authority to commission a person as a peace officer for positions not defined as a peace officer position under article 2.12 or other law. TEX. CODE CRIM. PROC. art. 2.12(2); see also TEX. OCC. CODE §§ 1701.001(4) (defining "peace officer" as "a person elected, employed, or appointed as a peace officer under Article 2.12 ... or other law"), 1701.303(a) (requiring the "law enforcement agency or governmental entity that hires a person for whom a license is sought" to file the application with TCOLE). A constable possesses the authority to employ a deputy constable, who may qualify as a peace officer. See TEX. LOC. GOV'T CODE § 86.011(a); TEX. CODE CRIM. PROC. art. 2.12(2). A constable seeking to employ a deputy constable, however, must "show that it is necessary to appoint a deputy in order to properly handle the business of the constable's office that originates in the constable's precinct." TEX. LOC. GOV'T CODE § 86.011(a). A commissioners court may approve the appointment of a deputy constable "only if the commissioners court determines that the constable needs a deputy to handle the business originating in the precinct." Id. While no opinion addresses the question, a court is likely to conclude that a constable in one precinct does not possess the authority to employ, appoint, and commission a deputy to primarily perform duties for a justice court located in a different precinct. We do not address your remaining question, which you conditioned on an affirmative answer to your second and third questions.

                                  SUMMARY

                  Sections 151.001 and 151.002 of the Local Government Code authorize a justice court to appoint and supervise an employee to perform the traditional duties of a court bailiff for the court, although any duties that require additional qualifications, such as duties performed as a peace officer, may be subject to other law.

                  Employees of a justice court are not peace officers by virtue of that employment, although the statute does not prevent those employees from qualifying as a peace officer in some other capacity recognized by article 2.12 of the Code of Criminal Procedure.

                  A court is likely to conclude that a constable in one precinct does not possess the authority to employ, appoint, and commission a deputy to primarily perform peace officer duties for a justice court located in a different precinct.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Luis V. Saenz, Cameron Cty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Dec. 4, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").

[2] See Interdepartmental Memorandum of Understanding between Justice of the Peace, Precinct 5, Place 2 and Constable, Precinct 3, and Interdepartmental Memorandum of Understanding between Justice of the Peace, Precinct 5, Place 3 and Constable, Precinct 3 (attached to Request Letter). The memoranda contain identical terms.

[3] The statutes refer to a "warrant officer" in three different senses, none specifically in the context of a county or precinct employee. First, a warrant officer may be a person holding a particular rank in the Texas National Guard. See TEX. GOV'T CODE § 432.001(14). Second, warrant officers are listed as security personnel in the statute governing certain court security funds, although the statute does not otherwise define the term. See TEX. CODE CRIM. PROC. art. 102.017(d-1)(14). Finally, chapter 30 of the Government Code authorizes certain municipal courts of record to employ warrant officers but does not define the term. See TEX. GOV'T CODE § 30.00009(b). This office determined that a similar statute authorized a municipality to give a peace officer the title of warrant officer, and further, the officer's duties could include serving process and other papers and acting as a bailiff of municipal court. Tex. Att'y Gen. Op. No. JM-1222 (1990) at 2-3.

[4] The judge of specified courts may request the sheriff to deputize the court's bailiff. TEX. GOV'T CODE § 53.007(a), (b). Some specified bailiffs are statutorily designated as peace officers. See id. § 53.0071.

[5] The Local Government Code also authorizes a commissioners court to provide for "secretarial personnel" for a precinct officer such as a justice of the peace. TEX. LOC. GOV'T CODE § 151.901.

[6] The 2010 decennial census lists the population of Cameron County as 406,220. See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, 2010 Census of Population: Texas Quickfacts, http://www.quickfacts.census.gov.