Do home-rule city police officers in Texas have to take the constitutional oath of office?

Plain-English summary

Two members of the Texas House asked the Attorney General in 1996 about the oath of office that the Texas Constitution requires public officers to take. Article XVI, section 1 makes elected and appointed officers swear an oath, and an amendment the voters approved in 1989 added a second step: before taking the oath, an officer has to sign an anti-bribery statement and file it with the secretary of state. The questions were whether a home-rule city's police officers, and the civilian staff of a police department, count as "appointed officers" who must do this; whether they have to repeat it every two years; and what happens to arrests made by an officer who never filed the paperwork.

On the central question the office could not give a flat yes. It found no court decision and no prior AG opinion squarely deciding whether a city police officer is a "public officer" for purposes of article XVI, section 1. The leading test, from Aldine Independent School District v. Standley, asks whether the person exercises a sovereign function of government largely free of others' control; under that test, some police officers might not be "officers" at all. But older Texas cases, relying on the Code of Criminal Procedure, had treated city police as public officers, and those cases were never overturned. Caught between the two lines, the office advised erring on the side of caution: assume a police officer must take the oath until the courts settle the point. It noted that the Court of Criminal Appeals' view matters most, because that court decides whether a search or arrest by a police officer holds up.

The office was more definite on the rest. Civilian police-department employees who are not "peace officers" under article 2.12 of the Code of Criminal Procedure (clerks, custodians, jailers, dispatchers, and similar staff) are not covered by the oath requirement. There is no way to satisfy the oath retroactively, so an officer who missed it should take it as soon as possible. Officers in a municipal civil service system are not subject to the two-year term limit of article XVI, section 30, because section 30b exempts civil service offices, so they do not retake the oath every two years; they take it when appointed and again only if appointed somewhere new. Officers who took the oath before the 1989 amendment do not have to go back and file the new statement, because the amendment operates only going forward. And importantly, even an officer who never took the oath can still be a "de facto" officer, and arrests a de facto officer makes are valid; such an arrest does not become an unreasonable seizure under the Fourth Amendment.

Currency note

This opinion was issued in 1996. 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.

This opinion turned on the constitutional oath provisions and the Code of Criminal Procedure as they stood in 1996, and on the office's reading of cases that were already decades old then. The very question it left open, whether a city police officer is an "appointed officer" who must take the oath, may have been answered since. The peace-officer certification rules it cited (then chapter 415 of the Government Code) have been reorganized, and peace-officer regulation now sits with the Texas Commission on Law Enforcement. Read this page for the 1996 reasoning, and check current law before relying on any specific rule here.

What the opinion meant at the time

For home-rule city police officers: The office did not decide whether a city police officer was an "appointed officer" who had to take the constitutional oath, because the law was unsettled. Its practical advice was to assume the oath applied and take it. An officer hired without taking it could not cure that retroactively but was advised to take it as soon as possible.

For civilian police-department staff (clerks, jailers, dispatchers, custodians, secretaries): The opinion held that employees who are not "peace officers" under article 2.12 of the Code of Criminal Procedure, and who are not public officers for any other reason, were not subject to the article XVI, section 1 oath-and-statement requirement.

For civil service departments and their personnel: The opinion held that the two-year term limit in article XVI, section 30 did not apply to officers appointed under a municipal civil service system, because section 30b exempts those offices. So civil service police officers were not required to retake the oath every two years; the oath attached at appointment and would recur only on a new appointment, such as moving to another civil service city. Officers who had already taken the oath before the 1989 amendment did not have to file the new statement.

For criminal defendants, prosecutors, and the courts: The opinion held that an officer's failure to take the oath did not automatically void his arrests. A police officer who had not taken the oath could still be a "de facto" officer, and arrests by a de facto peace officer made as authorized by statute were valid and did not amount to an unreasonable seizure under the Fourth Amendment.

Common questions

Did Texas city police officers have to take the constitutional oath of office?
The Attorney General could not say for certain. He found no court ruling or prior opinion deciding whether a city police officer is a "public officer" for purposes of article XVI, section 1, so he advised police officers to assume the oath applied and take it until the courts resolved the question.

Did civilian employees of a police department have to take the oath?
No, not if they were not "peace officers." The opinion concluded that police-department employees who are not peace officers under article 2.12 of the Code of Criminal Procedure, and who are not public officers for some other reason, are not covered by the oath-and-statement requirement.

Did officers have to retake the oath every two years?
Generally no for civil service officers. The two-year limit in article XVI, section 30 did not reach offices under a municipal civil service system, because section 30b carves them out. An officer took the oath when appointed and would take it again only if appointed anew, such as moving to a different civil service city.

If an officer never took the oath, were his arrests still good?
Yes. The opinion concluded that a police officer who had not taken the oath could still act as a "de facto" officer, and a de facto peace officer's warrantless arrests, where authorized by statute, were valid. Such an arrest was not an unreasonable seizure under the Fourth Amendment.

Did officers sworn before the 1989 amendment have to file the new statement?
No. Because a constitutional provision operates prospectively unless it clearly says otherwise, officers who took the oath for an appointed office before the 1989 amendment did not have to go back and file the secretary-of-state statement.

Background and statutory framework

Article XVI, section 1 of the Texas Constitution sets the oath of office for Texas officials. The 1989 amendment, approved by the voters on November 7, 1989, added an anti-bribery statement that elected and appointed officers must sign and file with the secretary of state before taking the oath. Article XVI, section 30 caps the duration of offices not fixed by the Constitution at two years, but section 30a allows six-year terms for some state agency officers and section 30b exempts municipal offices governed by civil service. Article XVI, section 40 separately bars one person from holding two civil offices of emolument.

The line between a "public officer" and a public "employee" came from Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955), which asked whether a sovereign function of government is conferred on the individual to be exercised largely free of others' control; the court quoted Dunbar v. Brazoria County, 224 S.W.2d 738 (Tex. Civ. App.-Galveston 1949, writ ref'd). Later cases applied the test (Green v. Stewart, 516 S.W.2d 133 (Tex. 1974); Harris County v. Schoenbacher, 594 S.W.2d 106 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.)), and the office had used it in Attorney General Opinion DM-212 (1993). After DM-212, the Court of Criminal Appeals applied the Aldine test again in State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994). Against that line stood older decisions treating city police as public officers based on the Code of Criminal Procedure, whose relevant provisions are now articles 2.12 and 3.03. The office could not reconcile the two well enough to give a definite answer, so it advised caution.

On the remaining points, the office relied on article 2.12's definition of "peace officer" to exclude civilian staff (citing Deltenre v. State, 808 S.W.2d 97 (Tex. Crim. App. 1991), for how courts decide whether someone is a peace officer); on section 30b and chapter 143 of the Local Government Code for the civil service term-limit exemption; on Cox v. Robison, 150 S.W. 1149 (Tex. 1912), for the prospective operation of constitutional provisions; and on the de facto officer cases (Williams v. State, 588 S.W.2d 593 (Tex. Crim. App. 1979); Henry v. State, 828 S.W.2d 312 (Tex. App.-Fort Worth 1992, pet. ref'd); Burkhardt v. State, 202 S.W. 513 (Tex. Crim. App. 1918)) plus Malone v. County of Suffolk, 968 F.2d 1480 (2d Cir. 1992), for the validity of a de facto officer's arrests under the Fourth Amendment.

Citations

Constitutional and statutory provisions discussed:

• Tex. Const. art. XVI, § 1 (oath of office; 1989 amendment requiring an anti-bribery statement filed with the secretary of state)
• Tex. Const. art. XVI, § 30 (two-year limit on the duration of offices not fixed by the Constitution); § 30a (six-year terms for certain state agency officers); § 30b (civil service offices exempt from the section 30 limit)
• Tex. Const. art. XVI, § 40 (prohibition on holding two civil offices of emolument)
• Tex. Const. art. V, § 5 (final appellate criminal jurisdiction of the Court of Criminal Appeals)
• Code of Criminal Procedure articles 2.12 (peace officers), 3.03 (term "officers" includes peace officers), 2.13, 2.14, 6.06, and 14.01(b), 14.03, 14.04 (warrantless arrests)
• Penal Code section 38.06 (escape; formerly section 38.07); section 22.02(a)(2) (aggravated assault); section 49.02 (public intoxication)
• Government Code chapter 415 (peace officer certification)
• Local Government Code chapter 143 (municipal civil service; sections 143.001, 143.021, 143.051-.052, 143.056, 143.085); section 85.003 (recording of a deputy's oath)

Cases discussed:

• Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Dunbar v. Brazoria County, 224 S.W.2d 738 (Tex. Civ. App.-Galveston 1949, writ ref'd)
• Green v. Stewart, 516 S.W.2d 133 (Tex. 1974)
• Harris County v. Schoenbacher, 594 S.W.2d 106 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.)
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994)
• Deltenre v. State, 808 S.W.2d 97 (Tex. Crim. App. 1991)
• Ellis v. Holcombe, 69 S.W.2d 449 (Tex. Civ. App.-Galveston 1934, writ ref'd); Holcombe v. Grota, 102 S.W.2d 1041 (Tex. 1937)
• Cox v. Robison, 150 S.W. 1149 (Tex. 1912)
• Williams v. State, 588 S.W.2d 593 (Tex. Crim. App. 1979); Henry v. State, 828 S.W.2d 312 (Tex. App.-Fort Worth 1992, pet. ref'd); Burkhardt v. State, 202 S.W. 513 (Tex. Crim. App. 1918)
• Malone v. County of Suffolk, 968 F.2d 1480 (2d Cir. 1992)
• Early cases cited for the view that city police are public officers: Yett v. Cook, 281 S.W. 837 (Tex. 1926); Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944); Ex parte Preston, 161 S.W. 115 (Tex. Crim. App. 1913); City of Paris v. Cabiness, 98 S.W. 925 (Tex. Civ. App. 1906, no writ); City of Houston v. Smith, 80 S.W. 1144 (Tex. Civ. App. 1904, writ ref'd); City of Houston v. Estes, 79 S.W. 848 (Tex. Civ. App. 1904, writ ref'd)
• Attorney General Opinions H-1027 (1977) and DM-212 (1993)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0381
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0381.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering and the names of older cases) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 28, 1996

The Honorable Fred Hill
Chair
House Committee on Urban Affairs
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-381

Re: Whether police officers of a home-rule city must comply with the provisions of article XVI, section 1 of the Texas Constitution every two years, and related questions (RQ-767, RQ-789)

The Honorable Doyle Willis
Chair
Select Committee on Veterans Affairs
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Representative Hill asks whether home-rule city police officers and "[n]on-police officer employees" of the police department are "appointed officers" under article XVI, section 1 of the Texas Constitution. Representative Willis asks on behalf of the Fort Worth Police Department whether article XVI, section 30 of the Texas Constitution requires home-rule city police officers to comply with the provisions of article XVI, section 1 every two years.

Article XVI, section 1 of the Texas Constitution requires elected and appointed officers to take an oath of office. An amendment to section 1 approved by the voters on November 7, 1989, requires elected and appointed officers to sign and file a statement with the secretary of state before taking the oath of office. The statement to be signed by appointed officers is as follows:

I, __, do solemnly swear (or affirm) that I have not directly or indirectly paid, offered, or promised to pay, contributed, or promised to contribute any money, or valuable thing, or promised any public office or employment, as a reward to secure my appointment....

Tex. Const. art. XVI, § 1. Article XVI, section 30 provides, with exceptions, that "[t]he duration of all offices not fixed by this Constitution shall never exceed two years." See also id. §§ 30a (authorizing legislature to provide by law for six-year terms for officers of state agencies), 30b (two-year term limit not applicable to municipal offices under civil service).

The Secretary of State has informed law enforcement agencies by letter that the 1989 amendment to article XVI, section 1 requires elected and appointed officers to file a sworn statement with the secretary of state before executing the oath of office. The letter also mentions a case wherein the failure to file the statement affected the outcome of a proceeding before a justice court. A deputy sheriff was called to testify about issuing a speeding ticket. Because the deputy had not filed the statement required by article XVI, section 1 of the Texas Constitution, the justice of the peace excluded his testimony and dismissed the charge.

We find no judicial decision or attorney general opinion stating whether police officers are public officers within article XVI, section 1. But see Attorney General Opinion H-1027 (1977) (commissioned officers of Department of Public Safety are appointed officers required to take constitutional oath). In Attorney General Opinion DM-212, however, we concluded that article XVI, section 40 of the Texas Constitution, which prohibits one person from holding two civil offices of emolument, does not as a matter of law prohibit city police officers and sheriffs' deputies from serving as part-time security officers for a school district. Attorney General Opinion DM-212 (1993) at 2. We relied for this conclusion upon the test adopted by the Texas Supreme Court in Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955).

In Aldine, the court held that the decisive factor distinguishing a public officer from a public employee is "whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others." Id. at 583 (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref'd)) (emphasis supplied by court in Aldine). See also Green v. Stewart, 516 S.W.2d 133 (Tex. 1974) (concluding in reliance on Aldine that deputies in tax assessor-collector's office are not officers because they acted in the tax assessor-collector's right rather than in their own right). In Harris County v. Schoenbacher, 594 S.W.2d 106 (Tex. Civ. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.), the court concluded that the chief juvenile probation officer was not a public officer, even though the statute conferred upon him authority to perform certain sovereign functions, because he could not exercise them largely free of the control of the juvenile board. Attorney General Opinion DM-212 expressed the view that the Texas courts would apply the Aldine test and would conclude that some city police officers, sheriff's deputies, and security officers do not hold civil offices. Attorney General Opinion DM-212 (1993) at 2. Whether a particular police officer, deputy, or school district security officer held a civil office depended on the resolution of factual issues and therefore could not be determined in an attorney general opinion. Id.

After Attorney General Opinion DM-212 was issued, the Texas Court of Criminal Appeals relied upon the Aldine test to conclude that neither a Harris County district attorney nor an assistant district attorney was a public officer for purposes of the article XVI, section 40 prohibition against holding two civil offices of emolument. State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994). The adoption of the Aldine test by the court of criminal appeals gives even more support to our conclusion in Attorney General Opinion DM-212. We affirm our conclusion that city police officers are not as a matter of law civil officers of emolument within article XVI, section 40 of the Texas Constitution.

However, early judicial decisions cite provisions of the Code of Criminal Procedure as authority for the conclusion that city police officers are public officers. See Yett v. Cook, 281 S.W. 837 (Tex. 1926); Irwin v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944); Ex parte Preston, 161 S.W. 115 (Tex. Crim. App. 1913); City of Paris v. Cabiness, 98 S.W. 925 (Tex. Civ. App. 1906, no writ); City of Houston v. Smith, 80 S.W. 1144 (Tex. Civ. App. 1904, writ ref'd); City of Houston v. Estes, 79 S.W. 848 (Tex. Civ. App. 1904, writ ref'd). In the Aldine case, the Texas Supreme Court referred to some of these decisions, distinguishing Cabiness, Estes, "and other cases involving the right to discharge a policeman" as follows:

City policemen are expressly declared by the provisions of Article 36, Vernon's Ann. Code of Crim. Procedure of Texas, to be 'peace officers', and peace officers are expressly declared to be included within the general term 'officers' by Article 30, Vernon's Ann. Code of Crim. Procedure of Texas. Both these statutes were operative when all the above cases were decided.

Aldine, 280 S.W.2d at 585. The cited statutes are now respectively articles 2.12 and 3.03 of the Code of Criminal Procedure.

Article 2.12 of the Code of Criminal Procedure identifies police officers as "peace officers," and article 3.03 states that the term "officers" includes magistrates and peace officers. Other provisions of the Code of Criminal Procedure authorize a peace officer to preserve the peace and to make arrests with warrants in certain circumstances, Code Crim. Proc. art. 2.13, to summon citizens to assist him when necessary to overcome resistance, id. art. 2.14, and to intervene when someone is about to commit an offense against the person or property of another within his view, id. art. 6.06. See also id. arts. 6.05, 8.05, 14.01(b), .03 - .04.

The cases that rely on Code of Criminal Procedure provisions to find that a city police officer is a public officer are not recent cases, but they have not been overturned. In the absence of more judicial guidance on the question before us, we cannot definitely predict what test the courts would use in determining whether or not a city police officer must meet the requirements to take the constitutional oath required by article XVI, section 1 of the Texas Constitution. We therefore advise you to err on the side of caution, and to assume that a police officer must take the oath required by article XVI, section 1 of the Texas Constitution until the courts answer this question. The opinion of the Texas Court of Criminal Appeals is especially important, because it is the court that addresses questions of the validity of a search and seizure conducted by a police officer. See Tex. Const. art. V, § 5 (court of criminal appeals shall have final appellate jurisdiction in criminal cases).

Representative Hill specifically asks whether the provisions of article XVI, section 1 of the Texas Constitution apply to the following employees of a home-rule city: police officers who meet the statutory definition of peace officers as provided by article 2.12 of the Code of Criminal Procedure, and nonpolice officer employees of a police department such as clerks, custodians, secretaries, jailers, telecommunications employees, and other support staff personnel. As we have already stated, our present advice is that police officers should take the oath.

A police department may include employees other than police officers. See Ellis v. Holcombe, 69 S.W.2d 449, 453 (Tex. Civ. App.-Galveston 1934, writ ref'd); see also Holcombe v. Grota, 102 S.W.2d 1041, 1042 (Tex. 1937) (explaining Ellis v. Holcombe). In Deltenre v. State, 808 S.W.2d 97 (Tex. Crim. App. 1991), the Texas Court of Criminal Appeals considered whether a specific jailer appointed by the sheriff was a peace officer, within the offense of escape from a peace officer. See Penal Code § 38.06 (formerly Penal Code § 38.07). Although Deltenre concerns county rather than city law-enforcement personnel, it demonstrates the court's method of determining whether or not an individual is a peace officer within article 2.12 of the Code of Criminal Procedure. The court determined that the jailer was not a peace officer under article 2.12 of the Code of Criminal Procedure because the evidence showed that he had not been certified as a peace officer under chapter 415 of the Government Code or appointed as a deputy sheriff. 808 S.W.2d at 101-02. The court further noted that "[e]ach case must be determined on its own facts as to the sufficiency of the evidence that a jailer, or other law enforcement personnel, satisfies the qualifications of a certified peace officer." Id. at 102 n.13. Accordingly, we conclude that employees of the police department who are not peace officers as defined by article 2.12 of the Code of Criminal Procedure and who are not public officers for any other reason are not subject to the requirements of article XVI, section 1 of the Texas Constitution.

Representative Hill next inquires about the correct procedure to meet the constitutional requirement for the police officers who have already been hired. We find no procedure whereby a police officer may comply with article XVI, section 1 retroactively. We advise that police officers comply and take the constitutional oath as soon as possible.

Representative Willis asks if civil service police departments of home-rule cities must require their officers to take the oath every two years. A letter from the chief of police of the city of Fort Worth attests that police officers in his department have traditionally been sworn in only upon graduation from the police academy, or upon special appointment, as in the case of the chief of police. He wishes to know whether members of a police force in a home-rule city are subject to article XVI, sections 1 and 30, so that they must take the oath of office and file the statement every two years. Article XVI, section 30 of the Texas Constitution provides, with exceptions, that "[t]he duration of all offices not fixed by this Constitution shall never exceed two years." However, article XVI, section 30b of the Texas Constitution provides that the duration of appointive offices under a civil service shall be governed by the civil service commission and not by article XVI, section 30:

Wherever by virtue of Statute or charter provisions appointive officers of any municipality are under the terms and provisions of Civil Service and rules are set up governing appointment to and removal from such offices, the provisions of Article 16, Section 30, of the Texas Constitution limiting the duration of all offices not fixed by the Constitution to two (2) years shall not apply, but the duration of such offices shall be governed by the provisions of the Civil Service law or charter provisions applicable thereto.

Thus, the term limits of article XVI, section 30 do not apply to an officer appointed under a municipal civil service system established by statute or charter if appointment to and removal from office are governed by civil service provisions. Law enforcement personnel with civil service protection under chapter 143 of the Local Government Code have no set term of office and may be removed only for reasons and under procedures governed by the statute. Local Gov't Code §§ 143.021, .051 - .052, .056, .085; see also id. § 143.001 (purpose of civil service statute is to secure efficient fire and police departments composed of capable personnel with permanent employment terms). The oath and filing requirements of article XVI, section 1 of the Texas Constitution would apply when these individuals are appointed as city police officers. A police officer would not need to file the statement and take the oath again unless he was appointed again, for example, if he left his position with one civil service city and was hired as a police officer by another civil service city.

Representative Willis also asks whether officers sworn prior to the 1989 amendment must file the statement now required by article XVI, section 1 of the Texas Constitution. A constitutional provision operates prospectively unless the language, purpose, or nature of the provision clearly manifests the intent of retroactive operation. Cox v. Robison, 150 S.W. 1149 (Tex. 1912). Article XVI, section 1 requires officers to file the statement with the secretary of state before taking the oath. Nothing in the provision suggests that the filing requirement applies when the appointment was made and the oath was taken prior to the effective date of the 1989 amendment. Officers under a civil service system who took the constitutional oath for appointed offices before the 1989 amendment need not file the statement now. Of course, if for some reason such individuals have been appointed as police officers since the amendment was adopted, they must file the statement before taking the oath.

Representative Willis finally asks, "What will be the impact upon arrests made by these officers, which fall within the ambit of Tex. Code Crim. Proc. Ann. Arts. 14.01(b), 14.03, [and] 14.04." These provisions allow peace officers to make arrests without a warrant in specific circumstances. Article 14.01(b) authorizes a peace officer to arrest an offender without a warrant for any offense committed in his presence or within his view. Article 14.03 authorizes a peace officer to arrest, without a warrant,

(1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code [disorderly conduct and related offenses], breach of the peace, or offense under Section 49.02, Penal Code [public intoxication], or threats or are about to commit some offense against the laws;

(2) persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to another person

Other sections of article 14.03 also authorize arrests without a warrant in various cases of family violence. Article 14.04 provides as follows:

Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, the peace officer may, without warrant, pursue and arrest the accused.

If the peace officers in question were de facto officers under Texas law, their arrests made in accordance with these statutes are valid. In Irwin v. State, the Texas Court of Criminal Appeals stated as follows:

There is no question but that if [the officers] who made the search, or either of them, were deputies sheriff de jure or de facto, the search, in so far as the authority of the officers executing the search warrants was concerned, was [valid].

177 S.W.2d at 972; see also Burkhardt v. State, 202 S.W. 513 (Tex. Crim. App. 1918) (de facto deputy sheriff could arrest without warrant). The Texas Court of Criminal Appeals has adopted the following definition of "de facto officer": . . . Williams v. State, 588 S.W.2d 593 (Tex. Crim. App. 1979) (citing Weatherford v. State, 21 S.W. 251 (Tex. Crim. App. 1893)).

In Williams, relating to a conviction of aggravated assault on a police officer, see Penal Code § 22.02(a)(2), the Texas Court of Criminal Appeals held that the evidence showed that the victim was made a deputy sheriff, even though his appointment and oath were not recorded in the county clerk's office, as required by the statutory predecessor to Local Government Code section 85.003 and neither his deputation card nor bond indicated that he had taken the oath. In Henry v. State, 828 S.W.2d 312, 314-15 (Tex. App.-Fort Worth 1992, pet. ref'd), the court stated in dicta that "[e]ven if [Constable] Brown did not take the requisite oath of office . . . , we find that Brown still qualified as a de facto constable under the record of this case." Whether a police officer is an officer de facto is a fact question, but the fact that the individual has not taken the oath of office does not prevent him from being a de facto police officer.

On the basis of the authorities we have cited, we conclude that a police officer may be shown to be a de facto police officer, even though he has not taken the oath required by article XVI, section 1 of the Texas Constitution, and that a de facto peace officer may validly arrest someone without a warrant where authorized by law. An arrest by an unlawfully appointed police officer who is a de facto officer under state law and who may legally make arrests under state law would not be an unreasonable seizure under the Fourth Amendment. See Malone v. County of Suffolk, 968 F.2d 1480 (2d Cir. 1992).

SUMMARY

Article XVI, section 1 of the Texas Constitution requires elected and appointed officers to take an oath of office and, under an amendment approved by the voters on November 7, 1989, to sign and file a statement with the secretary of state before taking the oath of office. In the absence of judicial guidance on whether city police officers must take the oath and file the statement required by article XVI, section 1, we cannot determine whether or not a city police officer is an appointed officer for purposes of these provisions. We therefore advise you to err on the side of caution, and to assume that a police officer must take the oath required by article XVI, section 1 of the Texas Constitution, until the courts answer this question. The opinion of the Texas Court of Criminal Appeals is especially important, because it is the court that addresses questions of the validity of a search and seizure conducted by a police officer.

Employees of the police department who are not peace officers within article 2.12 of the Code of Criminal Procedure are not required by article XVI, section 1 of the Texas Constitution to take the oath of office or file the statement.

We find no procedure whereby police officers who have already been hired may comply with the oath provision retroactively, but we advise police officers who have not complied with this provision to do so as soon as possible.

Officers under a civil service system who were appointed and took the constitutional oath before the 1989 amendment need not now file the statement required by that amendment.

Article XVI, section 30b provides that the two-year term limitation of article XVI, section 30 does not apply to an officer appointed under a municipal civil service system established by statute or charter, if appointment to and removal from office are governed by the civil service provisions.

Arrests made in accordance with statute by de facto police officers are valid. An individual may be a de facto police officer, even though he has not taken the oath of office.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General