Jones v. State Board of Trustees of Emp. Retire. Sys.

• Decision Date: 31 January 1974
• Docket Number: No. 18257,18257
• Citation: 505 S.W.2d 361
• Parties: Peggy Ann JONES, Appellant, v. The STATE BOARD OF TRUSTEES OF the EMPLOYEES RETIREMENT SYSTEM OF TEXAS et al., Appellees.
• Court: Texas Court of Appeals

Page 361

505 S.W.2d 361

Peggy Ann JONES, Appellant, v. The STATE BOARD OF TRUSTEES OF the EMPLOYEES RETIREMENT SYSTEM OF TEXAS et al., Appellees.

No. 18257.

Court of Civil Appeals of Texas Dallas.

Jan. 31, 1974.

Lewis H. Albright, Scurry, Scurry, Hodges & Johnson, Dallas, for appellant.

John L. Hill, Atty. Gen., David W. Pace, Asst. Atty. Gen., Austin, for appellees.

CLAUDE WILLIAMS, Chief Justice.

The sole question presented by this appeal is whether appellant is entitled to recover death benefits pursuant to legislative grants in Vernon's Tex.Rev.Civ.Stat.Ann. art. 6228f (Supp.1973), payable to the surviving widow and minor children of a member of an organized police reserve force who suffers violent death in line of duty. The trial court rendered a take nothing summary judgment against appellant. We affirm.

Peggy Ann Jones, the surviving wife of Joe Cobb Jones, deceased, individually and as legal guardian of the surviving minor children, brought this action against the State Board of Trustees of the Employees Retirement System of Texas, and its chairman and secretary, in the form of an appeal from an administrative order of the Board, which had denied plaintiff's application for death benefits pursuant to Article 6228f. In her petition for trial de novo she alleged that the administrative decision of the State Board was unreasonable, arbitrary and contrary to law, and that by virtue of the death of her husband which occurred while he was a member of the Dallas Police Reserves she, and her children, were entitled to recover the statutory amounts set forth and provided in Article 6228f. The named defendants represented by the Attorney General of Texas, answered with the contention that Joe Cobb Jones, deceased, was not a member of an organized police reserve unit with the power to make arrest as required by Article 6228f and therefore no recovery under the statute could be lawfully granted. Both parties moved for summary judgment.

In addition to affidavits supporting the motions the parties entered into the following stipulation of facts: Joe Cobb Jones died in Dallas on July 28, 1972, while discharging duties as a member of a group known as the Dallas Police Reserves. At the time of his death he was survived by his wife, Peggy Ann Jones, and two minor children, Tina Marie Jones and Michael Lee Jones. The group known as the Dallas Police Reserves has been functioning as a unit with the Dallas Police Department since February 16, 1953. The City Council of the City of Dallas, being the governing body of that city, has never adopted an ordinance or resolution of any nature establishing or appointing the Dallas Police Reserves. Prior to his death Joe Cobb Jones was qualified to be a peace officer and recognized as such by the Texas Commission on Law Enforcement Officers' Standards and Education, pursuant to Tex.Rev.Civ.Stat.Ann. art. 4413(29aa), § 2(c) (Supp.1973). Arrests have been made by members of the group known as the Dallas Police Reserves, both before and after the date of Joe Cobb Jones' death, in misdemeanor and other cases. Claim for benefits under Article 6228f was timely filed by Peggy Ann Jones on behalf of herself and her two minor children and such claim was denied.

In the affidavit executed by Frank Dyson, Chief of Police of the Dallas Police Department, in support of appellant's motion for summary judgment, he stated that Joe Cobb Jones was appointed by him to be a member of the Dallas Police Reserves on October 22, 1971, and continued as a member of such organization in good standing until the date of death, July 28, 1972. in another affidavit, T. T. Lord, a lieutenant In another affidavit, T. T. Lord, a lieutenant that the organization known as the Dallas Police Reserves was created and established on February 16, 1953, by order of the Chief of Police and has been functioning as a reserve police force for the Dallas Police Department since that date.

In her first and only point of error appellant contends that the trial court erred in granting the motion for summary judgment of appellees, and in failing to grant appellant's motion for summary judgment, inasmuch as the court misinterpreted the statutes involved and disregarded legislative intent. Under this point appellant takes the position that the office of 'police reserve' was created by the State Legislature and therefore a legal office does exist under which Joe Cobb Jones, deceased, could legally be operating as a de facto officer at the time of his death. In opposition to this contention, appellees contend that under the constitutional and statutory provisions not all police reserve units are eligible to qualify for death benefits. Appellees argue that the office of Dallas Police Reserves did not come into being since the City Council of the City of Dallas never enacted an ordinance creating such reserve unit and therefore Joe Cobb Jones was neither a de facto nor de jure officer at the time he met his untimely death.

Proper resolution of the question thus clearly presented requires careful study of the constitutional and statutory provisions involved. As initially adopted Article 3 § 51 of the Constitution of Texas Vernon's Ann.St. broadly prohibited the legislature from making any grant or authorizing the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations, with minor exceptions.

Thereafter Article 3 § 51--d of the Constitution was adopted which created an exception to the general rule contained in Article 3 § 51 . By this exception the legislature was given the power, by general law, to provide for the payment of assistance by the State of Texas to the surviving spouses and minor children of officers employees, and agents, including members of organized volunteer fire departments and members of organized police reserve or auxiliary units with authority to make an arrest, of the state or of any city, county, district or other political subdivision, who, because of the hazardous nature of their duties, suffer death in the course of the performance of those official duties.

To implement the constitutional provisions of Article 3 § 51--d, the legislature enacted Article 6228f in which it was declared to be the public policy of this state, under its police power, to provide financial assistance to the surviving spouses and minor children of various law enforcement officers, including organized police reserve unit officers, who suffer violent death in the course of the performance of their duties. The statute provides for specific amounts to be paid.

Also enacted by the legislature was Tex.Rev.Civ.Stat.Ann. art. 998a (Supp.1973) which must be considered as being in pari materia with Article 6228f. We quote the material portions of Article 998a:

(a) The governing body of any city, town, or village may provide for the establishment of a police reserve force. Members of the police reserve force, if authorized, shall be appointed at the discretion of the chief of police and shall serve as peace officers during the actual discharge of official duties.

(b) The governing body shall establish qualifications and standards of training for members of the police reserve force, and may limit the size of the police reserve force.

(c) No person appointed to the police reserve force may carry a weapon or otherwise act as a peace officer until he has been approved by the governing body. After approval, he may carry a weapon only when authorized by the Chief of Police, and when discharging official duties as a duly constituted peace officer.

The legislature also enacted Article 4413(29aa) which establishes a Commission on Law Enforcement Officer Standards and Education. This act provides that the commission shall establish minimum training standards for all reserve law enforcement officers which must be met before a person appointed as a reserve law enforcement officer may carry a weapon or otherwise act as a peace officer.

While conceding that the City of Dallas, acting through its governing body, has never enacted an ordinance officially creating the Dallas Police Reserves pursuant to authority of Article 998a, appellant contends that such an ordinance was not...