Untitled Texas Attorney General Opinion ( 1995 )

QWice of tQe !ZlttornepQhneral
Qtate of fLexa
DAN MORALES
ATToRNEY
GENERAL February 21,195’S
Mr. D. C. “Jii’ Dozier Qpinion No. DM-323
Executive Director
Texas Commission on Law Enforcement Re: Whether the Texas Commission on
Officer Standards and Education Law Enforcement Qtlker Standards and
1033 La Posada, Suite 240 Education may establish reqtdrements for
Austin, Texas 78752 the revocation of licenses of law-enforce-
ment officers elected under the Texas
Constitution, including sheriffs and con-
stables, and related question (RQ-676)
Dear Mr. Dozier:
On behalf of the Texas Commission on Law Enforcement Qfficer Standards and
Education (“TCLEOSF or the “commission”), your predecessor in office requested that
we resolve an apparent conflict between sections 415.053 and 415060(a) of the
Government Code. These sections provide as follows:
3 415.053. Licensing of Certain Law Enforcement Ofkers
Elect&J Under Texas Constitution or Statute
An officer, including a sheriff, elected under the Texas
Constitution or a statute or appointed to fill a vacancy in an elective
office must be licensed by the commission not later than two years
after the date that the officer takes office. The commission shah
establish requirements for licensing and for revocation, suspension,
cancellation, or denial of a license of such an officer. It is
incompetency and a ground for removal from office under Title 100,
Revised Statutes, or any other removal statute if an officer to whom
this section applies does not obtain the license by the required date or
does not remain licensed.* Footnote omitted; footnote added. J
‘This o&e detcnnincd in AttorneyGwenI Opinion DM-322 that Gwantwotcndescction
415.053doesnot unwnstitutiooallyprescribea qcsiiticationfor
boldiqgthe &ice of wnstab~e. Attorney
Gened OpinionDM-322 (1995) at 2. We stated:
Whm the amstitoticm prescribesthe qnaliticatiens for holding B pakular
0fliu,tkkgislahuelacksthcpwrtochangeoraddtothwequalllns
oaks the wnstitotion providesthat power. Lma v. Blantoa. 478 S.W.2d 76.18
(Tex. 1972); Dickson v. Strickland, 265 S.W. 1012, 1015-16 (Tcx 1924).
Article V, section 18(a) of the Texas Cmstilutkm pmvidcs for the ofike of
amtable. See afso Local Gov’t code ch. 86, 35 DAVY B. BROOKS, CiXNlY
p. 1710
Mr. D. C. “Jim”Dozier - Page 2 (DM-323)
5 415.060. Revocation; Probation; Suspension
(a) The commission may establish procedures for the
revocation of any license that it grants under this chapter, except a
license of an officer elected under the Texas Constitution.
Your predecessor asked whether, pursuant to these two statutes, TCLEOSE may revoke
the license of an officer elected under the Texas Constitution, including both a sheriff and
a constable.
Chapter 415 of the Government Code provides for TCLEOSE, it creates the
commission, see Gov’t Code 59 415.001(l), .002, .004, and establishes requirements for
the education, licensing, and appointment of law-enforcement ‘officers generally. In
general, chapter 415 prohibits a person from employing as a law-enforcement officer any
individual who lacks the appropriate license from TCLEOSE. See id. 4 4 15.OSl(a). But
see id. §§ 415.054(a), .055(a). Chapter 415 also requires all law-enforcement officers
elected under the constitution or a statute or appointed to till a vacancy in an elective
office to obtain a license from the commission within two years after the date that the
officertakes office.2 Id. 5 415.053.
(footnotecontinued)
ANOSPECIAL
DETRICT
LAW4 20.2, at 674 (Texas Pmcticc 1989); 59 T?x. JUR
3DPOlice.Sheriffs, ond Constables g 26, at 44 (1988). TIE o~&lution does aol
dietate qnalifxations for holding the oilice of constsble, and the legislamre is
thereforeftce to establishsuch qoaliications by sumte. See Luno, 478 S.W.Zdat
78; Dickson, 276 SW. at 1015-16. MO-, WCdo not interpm section
415.053 of the GovernmentCode to spec@ a qualiication for o&cc; rather,
section 415.053 specifies a qualikation for remaining in office once an
individual has ken elected or appointed to the office. Accordingly, section
415.053 of the Government Cc& does not conlravene the wl&timtion by
onconstimrionallyadding to or changing the qualificatioosfor holding the office
of constable.
Id. (footnoteomilted).
In regardto whethersection415.053 unconstimtionallyprescribesa qualiication for holding the
dice of sheritf we note that article V, section 23 of the Texas Constitutionexplicitly empowers the
legislahue to prescribesuch qualhicatio~. Fulhennore, as we indicatedin AttorneyGeneralOpinion
DM-322, section 415.053 does not specifya qualificationfor oII& “rather,section 415.053 specifies a
qualiication for remainingin office once an individualhas been electedor appointedto the o&c.” Id.
2Constablesa~ electedpursuantto articleV, section 18 of the Texas constitution. SheriBsare
e&ted pursuantto articleV, section 23 of the Texas ConsIimtion. Throughoutthis opinion, we will refer
to a law-enforcementofficer elected underthe constimtionor statuteor appointedlo fill a vacancy in an
electiveofficeas a wnstitutional officer;we will referto a law-enforcemcn~
officerwho is appointedand
who does sot fill an elective office as a noncomtimtionalofficer.
p. 1711
Mr. D. C. ‘Xi” Dozier - Page 3 (DM-323)
Section 3 11.026 of the Government Code states that, when interpreting sections of
the codes, general and special provisions should be construed to effectuate both, if
possible. Section 3 11.026 tkrther provides that, if the con&t between the two is
irreconcilable, the special provision should be construed as an exception to the general
provision unless the legislature enacted the general provision after it had enacted the
special provision. We do not believe the two provisions at issue here are irreconcilable;
rather, we believe that they can be harmonized.
The legislature enacted the statutory predecessor to chapter 415 of the Govern-
ment Code, V.T.C.S. article 4413(29aa), in 1965. See Acts 1965, 59th Leg., ch. 546, at
1158.’ Prior to 1985, article 4413(29aa) required TCLBOSE to “[e]stabk.h procedures
for the revocation of licenses issued to a peace officer under the provisions of this
Acx”~ In 1985 the legislature amended article 4413(29aa), section 2(a)(l8) to except
constitutional law-enforcement officers from TCLBOSE procedures for the revocation of
a license issued to a peace officer. Acts 1985, 69th Leg., ch. 907, § 1, at 3040. At the
same time, however, the legislature enacted a new provision, section 2(a)(21), requiring
TCLEOSE to “[e]stablish requirements for certification of and procedures for revocation
of licenses of a law enforcement officer elected under the Texas Constitution, with the
exception of sheri&, after September 1, 1985.” Id.
In 1993, by the passage of Senate Big 339, the legislature deleted from the
cod&d successor to section 2(a)(21), section 415.053 of the Gov emment code, the
exception for sheriffs. The deletion became e&ctive in November 1993 following voter
approval of an amendment to article V, section 23 of the Texas Constitution.J The
sOriginally,the legislaturecreatedTCLECXEfor the plrposc of, amongotherthings, suggesting
minimum standa& for law-enforcement“office& snd proceduresfor the certification of “law-
cnfonrmcnt 05icm.” AN 1%5,59th Leg., ch. 546,s 2. The 1%5 act did not define “ofliccr”or “law-
enforcement05ccr,* although it sxggestedin section 2 that ofhan were iadividualsappointedto law-
enforcementpositioas. See id. The legislaturedid not explicitlydefme -peaa officer”until 1975, when
it addedsection6(h) to article4413(29aa). See Acts 1975,64th Leg., ch. 547, 8 1; info nok 4.
‘At Thaitime, section 6(h) of V.T.C.S. article 4413(29aa) defined “peace officer”in pertinent
partN “only a pcrmt so designatedby Article2.12, Codeof CriminalProcedure,1%5.” See Acts 1981,
67th Log., eh. 399,s 3. In 1985 the kgislatwe brwdewdchede6nitionof”peauoflleer”temeanin
pertinent part “any persen employedor appointedas a peaceofficerunder law, including but not limited
m a person so designatedby Article2.12, Codeof Criminalprocedure .” See Acts 1985,69th Leg.,
ch. 907, 8 2, at 3041. Since its enactment in 1%5. article2.12 of the Code of Criminalprocedurehas
includedin its list of peaceofficerssheriffsand wnstables.
%I 1987 the legislatureMNUIZ&ZI``V`` &cd article4413(29aa),V.T.C.S., as chapter415 of
the Govenmmt Code. See Acts 1987, 70th Leg., ch. 147, 8 1, 384-93, 8 7, at 534. Section 2(a)(18) of
article4413(29aa)becamepatl of saXion 415.060; section Z(a)(Zl)becamepartof section 415.053. TIC
legislaturemended section 415.053 in 1993 by adding “includinga sheriff.” See Acts 1993,73d Leg.,
ch. 985, 8 2 (S.B. 339).
p. 1712
Mr. D. C. ‘Jiin Dozier .- Page 4 (DM-323)
purpose of Senate Bill 339 was to subject “a sheriff to the ‘same qualifications and
licensing requirements as other officers covered under Sec. 415.053, Government Code,
i.e.[,] constables.” House Comm. on County Af%irs, Bill Analysis, S.B. 339, 73d Leg.
(1993). See generally House Research Organization, Bill Analysis, S.B. 339, 73d Leg.
(1993).
Upon examining the history of the relevant statutory provisions, we believe that
sections 415.053 and 415.060 can be harmon&& they do not contlict irreconcilably. The
1985 ame&ments to article 4413(29aa), section 2(a)(l8) and (21) indicate that the
legislature intended to split the commission’s authority to revoke licenses into two
sections, one that authorized the commission to revoke the licenses of nonconstitutional
law-enforcement officers and one that authorized the commission to revoke the licenses of
constitutional law-enforcement officers. Fii, TCLEOSE was to establish procedures by
which it may revoke the license of a nonconstitutional law-enforcement officer. This
mandate now is found in section 415.060(a) of the Government Code. Section
415.060(b) articulates the reasons for which the commission may revoke a
nonconstitutional officer’s license: violation of chapter 415 or of a TCLEOSE rule. See
ufso Gov’t Code 3 415.058(a) (rquiring TCLJZOSE to revoke officer’s license if officer
convicted of felony).
Second, TCLBOSE was to articulate requirements for the revocation of a license
belonging to a law-enforcement officer elected under the constitution, except a sheriff.
This requirement now is found in section 415.053 of the Government Code and, as
amended in 1993, no longer excepts sheriffs. Unlike section 415.060, section 415.053
does not articulate reasons for the revocation of a license. But see id. (requiring
TCLEOSE to revoke officer’s license if 05cer convicted of felony). The fact that the
legislature expressly excepted from section 415.060 “a license of an officer elected under
the Texas Constitution” does not indicate the legislature intended constitutional law-
enforcement officers’ licenses to be irrevocable; rather, it indicates that the legislature
intended such licenses to be revoked pursuant to section 4 15.053.
Moreover, to the extent of any conflict between the two provisions, section
415.053, which pertains specifically ‘to the licenses of constitutional law-enforcement
officers, prevails over section 415.060, which applies generally to any license that
TCLBOSE grants under chapter 415. See id. $311.026; Attorney General Opinion
(foomotccontinued)
Senate Bill 339 was the mabling legiblstion for the wanitutional amwdmeat to article V,
section 23 of the constitution. LegislativeCouncil,Aoalyaisof PmpceedChMiNtiOti Amcndmcntsat
25. TbeamatiNti~nal anmdmem modifiedarticleV, se&on 23 expkitly to authorizethe legislatureto
preacrihcthe qualificationsof she&k Id. Prior to its 1993 mendnm~ariic~eV,scctiw23 requiredthe
legidaturc to inwxibe the “pcrquisltca,fees of office and duties” of sheriffs. The L.egislativecouncil
statal that, under the priorversion of articleV, section 23, “[iIt is not qlearwhetherthe legislaturemay
also prescrii the quaMIcationsof sheriffswithoutexpresswnctihltional authorization.”Id.
p. 1713
Mr. D. C. Vii” Dozier - Page 5 (DM-323)
JM-1220 (1990) at 13. We therefore conclude that TCLEOSE is required, pursuant to
section 415.053 of the Government Code, to establish requirements for revocation of
licenses of law-enforcement officers elected under the constitution, including both a sheriff
and a constable.6
In his second question, your predecessor asked whether TCLBOSE’s authority to
revoke the license of a constable and a sheriff is limited to a constable who takes office on
or after September 1, 1985, and a sheriff who takes 05ce on or atIer January 1, 1994.’
This question requires us to consider section 415.015(c) of the Government Code, which
provides as follows:
This chapter does not at&t a constable or other officer or
county jailer elected under the Texas Constitution before September
1, 1985, and does not affect a person who held the office of sheriff
before January 1,1994.
The legislature also amended this subsection in 1993 by the passage of Senate Bill 339, the
same bill that amended section 415.053. See Acts 1993,73d Leg., ch. 985, 5 1, at 4264,
4264. Prior to the 1993 amendment, section 415.015 excepted all sheriffs from chapter
415.
The plain language of section 415.015(c) limits the applicability of chapter 415 to
an individual who was elected to the office of constable on or after September 1, 1985,
and an individual who held the 05~. of sheriff on or after January 1, 1994. Consequently,
TCLBOSE may establish requirements for the revocation of a license belonging to a
constable elected on or after September 1, 1985, or a sheriff who took office on or after
January 1, 1994.’
6TCLEOSEhas promulgateda rate, title 37 of the Texas Admiaisuativecode, section 211.82,
that providesfor the issuance of licenses 10jailers, reservelawcnforccmentofliceq and peace ol%icers.
Sub6cction(i) of section 211.82 tqdres the commissionto issue a permanentpeaceofficerlicense to any
law-enfomem~ officerelectedor appointedunderthe mnsdmtion afIerSep&mber1.1985, who meeL5
the minimmn stdards for kensing. Subsection(i) lit&et provides that such license is subject to
mvocation a6 any peace officer licen6c that the aunmision has issued to a aOncXmtiNti0ns1 law-
enforcementofficer. Subsection(i) is exp&y inapplicableto (I) a sheriffor (2) a constableor any other
COnstitutionsl kW-COf0I’rXm.N 05ecr who first assomedo5ke prior to September1, 1985. Given the
1993 amendmentsto chapter415 of the Gove-t code, section 211.82 is invalid to the extent that it
exetnpossheriffs who look office on or after January1. 1994. See Commissioner of Ins v. Allstate Ins.
Co., 579 S.W.M 553, 557 (Rx. Civ. App.-Austin 1979, writ ret’dnxe.) (citing Citizens Nat1 Bank Y.
Colvcrt, 527 S.W.Zd 175 (Tex. 1975)); see u/so it@ bxt accompning note 7 (determining that
TCLEOSE may establish requirementsfor the revocationof a peace offioa license belonging to a
castable electedon or afterScpte~bex 1.1985, or a s-who tc& office on or afIerJanoaty1, 1994).
‘Undertitle 37 of the Texas Admini%rative Code,seclion 211.82(i), a mnstableneed not obtaina
pcnnancnt license, nor would such a license k subjectto revocationas,any other license if the constable
ylrst a.wuncd 05ce beforeSeptember1.1985, even if reelectedaflerthat dateunless thesewas a breakin
office and that officer was the0 reekted aflet that dateto that or another office as a con6tiNtiond peaea
p. 1714
Mr. D. C. “Jii” Dozier - Page 6 (DM-323)
SUMMARY
Sections 415.053 and 415.060 of the Government Code do not
conflict irreconcilably. Rather, section 415.060 requires the Texas
Commission on Law Enforcement Officer Standards and Education
to establish procedures by which it may revoke the license of a
nonconstitutional law-enforcement officer who has violated the
statute or a rule promulgated pursuant to a statute. On the other
hand, section 415.053 requires TCLEOSE to establish rquirements
for the revocation of a license belonging to a law-enforcement officer
elected under the constitution, including a sherhTand a constable.
TCLEOSE must establish rquirements for the revocation of a
peace officer license belonging to a constable or sheriff, but the
requirements may not apply to a constable who was elected prior to
September 1, 1985, or to a sheriff who took office prior to
January 1,1994.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHJRLEY
Chair, Opiion Committee
Prepared by Kymberly K. Oltrogge
Assistant Attorney General
(footnotecontinued)
officer.” See 01~0AttorneyGeneralOpinionsJM-1149(1990) (concludingthat constablewhose tenureof
oflice eased on Decanber 31. 1984, and did not resumeuntil January1, 1989, must, pursuant10 37
T.A.C. seaion 211.82, meet TCLEOSE’srequirementsfor kensing); DM-75 (1992) (concluding that
elimination of precinct through tsdisbicting and incumbentmnstabte’selection as awIable for new
prechm does no1 result in “breakof office” for pwposes of 37 T.A:C. section 211.82(i) whue new
precinctdiffersfromold only in its numberand enlargedterritory).
p. 1715