Elected Officials serving as Reserve Officers

[David Jennings]

Council,

A question was raised as to whether or not an elected official may serve as a Reserve Officer in the city in which they were elected. Here is City Attorney Chris Gregg’s opinion.

No, an elected council member of the City may not serve as a Reserve Officer of the Shoreacres Police Department. Below is the Texas Local Government Code statute that controls.

Sec. 341.012. POLICE RESERVE FORCE.
(a) The governing body of a municipality may provide for the establishment of a police reserve force.
(b) The governing body shall establish qualifications and standards of training for members of the reserve force.
(c) The governing body may limit the size of the reserve force.
(d) The chief of police shall appoint the members of the reserve force. Members serve at the chief’s discretion.
(e) The chief of police may call the reserve force into service at any time the chief considers it necessary to have additional officers to preserve the peace and enforce the law.
(f) A member of a reserve force who is not a peace officer as described by Article 2.12, Code of Criminal Procedure, may act as a peace officer only during the actual discharge of official duties.
(g) An appointment to the reserve force must be approved by the governing body before the person appointed may carry a weapon or otherwise act as a peace officer. On approval of the appointment of a member who is not a peace officer as described by Article 2.12, Code of Criminal Procedure, the person appointed may carry a weapon only when authorized to do so by the chief of police and only when discharging official duties as a peace officer.
(h) Reserve police officers may act only in a supplementary capacity to the regular police force and may not assume the full-time duties of regular police officers without complying with the requirements for regular police officers. On approval of the appointment of a member who is a peace officer as described by Article 2.12, Code of Criminal Procedure, the chief of police may authorize the person appointed to carry a weapon or act as a peace officer at all times, regardless of whether the person is engaged in the actual discharge of official duties, or may limit the authority of the person to carry a weapon or act as a peace officer to only those times during which the person is engaged in the actual discharge of official duties. A reserve police officer, regardless of whether the reserve police officer is a peace officer as described by Article 2.12, Code of Criminal Procedure, is not:
(1) eligible for participation in any program provided by the governing body that is normally considered a financial benefit of full-time employment or for any pension fund created by statute for the benefit of full-time paid peace officers; or
(2) exempt from Chapter 1702, Occupations Code.
(i) This section does not limit the authority of the mayor of a Type A general-law municipality to summon a special police force under Section 341.011.

Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1999, 76th Leg., ch. 90, Sec. 4, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.825, eff. Sept. 1, 2001.

I also attach a previous Attorney General decision that directly responds to the question. That AG decision (JM-386) specifically cites the same 341.012 section above. The main issue of its prohibition relates to the doctrine of incompatibility, which prevents one person from holing 2 public offices if the duties are in conflict or if one is subordinate to the other. The city council has considerable supervisory power over the police reserve. The council established the force and determines its size. The council further sets qualifications and training standards for members and determines whether they shall receive compensation and hospital and medical assistance. No individual member of the police reserve force may carry a weapon or otherwise act as a police office until he/she has been approved by the city council.

The city council’s supervision and other authority over the members of the police reserve and the accountability of the police reserve to the city council makes it where a city council member may not serve on the City’s police reserve.

Chris Gregg

Click to view AG opinion

[Author]

Posts