Updated September 1, 2019
As reflected in the Attorney General's Opinion on this subject (GA-0465), and as the department interprets Section 1702.322 (1)(D) of the Occupations Code, it is the Sheriff who designates individuals as deputies and who is best situated to determine the individual's full-time employment status as a peace officer.
As noted in the Attorney General's opinion (GA-0465), the Sheriff defines who are deputy sheriffs – there is no statutory definition. The issue "depends upon the nature and terms of the individual's employment and how the employer views and treats the position." Id., at 3. Section 152.071 of the Local Government Code gives the sheriff the power to define those duties. Id. By certifying that they are deputy sheriffs, the Sheriff would, by definition, be certifying that they are peace officers (based on Article 2.12).
The remaining issue would then be whether they are employed at least 32 hours a week in their capacity as deputy sheriffs. If the Sheriff is unable to provide the Department of Public with a determination of how these positions are understood, we will have to base our assessment of whether the individuals are exempt from Chapter 1702 on other verifiable facts and records, such as the job titles reflected in the county's employment records.
Therefore, if the Sheriff will certify that certain named individuals work as peace officers (as defined by Art. 2.12 of the Code of Criminal Procedure) on the average of at least 32 hours a week, are compensated by the county at least at the minimum wage, and are entitled to all employee benefits offered to a peace officer by the county, the Department of Public would consider such individuals exempt from Chapter 1702 for purposes of off-duty employment in otherwise regulated positions.
The officers should understand, however, that this in no way limits the authority of other law enforcement agencies to interpret or enforce Chapter 1702 as may be deemed appropriate.