Untitled Texas Attorney General Opinion ( 1995 )

@ffice of tfy i?lttornep QBenerst
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DAN MORALES
ATTCJRNEY
GENERAL February 21,199s
Mr. D. C. ‘Jim” Dozier Opinion No. DM-322
Executive Director
Texas Commission on Law Enforcement Re: ,whether a constable who has not met
Officer Standards and Education the licensure requirements of the Commis-
1033 La Posada, Suite 240 sion on Law Enforcement Officer Standards
Austin, Texas 78752 and Education may run for re-eiection and
related questions (RQ-368)
Dear Mr. Dozier:
On behalf of the Texas Commission on Law Enforcement officer Standards and
Education (the “commission”), your predecessor in office has asked us whether a
constable elected ah September 1,1985, who fails to become licensed as a peace officer
within two years of taking office may run for re-election. Your predecessor also asked
whether a county commissioners court may appoint such an individual to the office of
constable, from which office the person resigned because of his or her failure to become
licensed as a peace officer within two years of assuming office. His questions are based
primarily upon section 415.053 of the Government Code, which states as follows:
An officer. 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 otftcer
takes office. The commission shag 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.]
To establish a hypothetical factual background, your predecessor proposed two
scenarios. In the first scenario, he described a situation in which the voters of a county
elected an individual, Sam Allman, to the office of constable after September 1, 1986.
Aihnan assumed office on January 1,1987. Alhnan has not become licensed within two
years of taking office, as section 415.053 of the Government Code requirest Concerning
‘A amstable is electedto hold oftice “forfouryearsand until” his or her aucesor is e&ted and
qualiicd. Tcx. Cast. art.V, 5 IS(a).
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Mr. D. C. “Jim” Dozier - Page 2 (DM-322)
this scenario, your predecessor asked whether Alhnan may run for re-election and assume
OffiCk
As a preliminary matter, we will consider the constitutionality of section 415.053.
Where the constitution prescribes the qualiications for holding a particular office, the
legislature lacks the power to change or add to those qualifications unless the constitution
provides that power. Luna v. Bkmton, 478 S.W.2d 76, 78 (Tex. 1972); Dickson v.
Strickland, 265 S.W. 1012, 1015-16 (Tex. 1924). .Article V, section 18(a) of the Texas
Constitution provides for the office of constable. See also Local Gov’t Code ch. 86; 35
DAVY,B. BROOKS,COUNTYAND SPECIALDISTRICTLAW g 20.2, at 674 (Texas Practice
1989); 59 TEX. JuR. 3D Police, Shen$s, and Constables 8 26, at 44 (1988). The
constitution does not dictate quahtications for holding the office of constable, and the
legislature is therefore free to establish such qualifications by statute. See Lunu,. 478
S.W.Zd at 78; Dickson, 265 SW. at 1015-16. Moreover, we do not interpret section
415.053 of the Government Code to specify a qualification for office;2 rather, section
415.053 specitles a qualification for remaining in office once an individual has beon elected
or appointed to the office.’ Accordingly, section 415.053 of the Govermnen t Code does
not contravene the constitution by adding to or changing the qualifications for holding the
office of constable.
By its terms, section 415.053 requires an individual, once he or she is elected to
and assumes the office of constable, to obtain from the commission within two years of
assuming office a license to serve as a peace officer.4 Section 415.053 does not prohibit a
‘Ia section 141.001 of the Election Cnde the legislahue has atticulated general eligiiility
mquimmentsfor public office. Among otherthings, section 141.001 requitesthat, in general,the psrsott
have residedwntinuourly in the tmitory from which the of&r is electedfor six months immediately
pmceding the regularfiling de&ine for an applicationfor a place on the ballot, and that the petxott
satisfysoy otherWtMiNtiOtd and aNNtoy eligibility reqoirementsfor the particularoffice. Aside from
section 141.001 of the Election Code, we am unawareof any provisionof law that prescribeseligibility
rquimnattts for the office of constable.
%I this way, section 415.053 is like any other ground for removalfrom o5ce under section
87.001 of the Local Governmentcode. For example,undersection 87.013(a)(3),a countyofficermay be
rmovcd for “intoxicationon or off duty caosod by drinking aa alcoholic bevemge.” H-, an
it&dual who has hew intoxicatedtium drinkin aa alcoholic beverageis qualifiedto assume a county
o5a. See Eke. Code 8 141.001(a).
%c legislate addadtbe aNNtoty p&ecessor, V.T.C.S. article 4413(29aa). section 6(p), to
adion 415.053 of the Gwemmwt code in 1985. See Acis 1985,69th Leg., ch. 907, 8 2, at 3041. The
legislatme intendedHouseBill 1592, which ukimatelyaddedsectiona@) N article4413(29aa),V.T.C.S.,
N, amoug nther things, ehitme the cxi5ting loopbolethroughwhich pcacc officers could avoid being
lianaed by tbe commission. SenateComm.on Jutisptudence,Bid1Analysis,HB. 1592,69th Leg. (1985).
The law as it existed at that time permittednewly-hiredpeace o&em to receivea prcbationarylicense
and forego the trainingrequiredto obtaina license for up to one year. Id. Afteroneyear,the m&ensed
Mr. D. C. “Jim” Dozier - Page 3 (DM-322)
constable who failed to become licensed within two years after the date the constable
assumed office. from running for re-election to the office of constable in the same precinct.
Consequently, we believe that ALran may run for re-election to the office of constable in
the same precinct and, if elected, may assume office. Additionally, Alhnan may choose to
run for the position of constable in a different precinct if he satisfies the statutory
residence requirements. See Elec. Code 141.001(5).
Your predecessor also asked whether Alhnan may run for re-election in the same
precinct or election in a different precinct if a district court had removed him from office
during the preceding term because he failed to become licensed within the statutory two-
year period. Chapter 87 of the Local Government Code empowers a district court to
remove county officers, including constables, if the officer is incompetent. See Local
Gov’t Code $5 87.011(2), .012(12), ,015 - ,018; see also 35 BROOKS,supra, 3 7.21, at
251. Section 415.053 of the Government Code explicitly provides that a constable’s
failure to become licensed to serve as a peace officer within two years of taking office
constitutes incompetence and is a ground for removal from office. However, we find no
constitutional or statutory provision that expressly prohibits a constable who was removed
during a previous term for failure to become timely licensed from running for re-election
to the office of constable in the same precinct or for election to the office of constable in a
diierent precinct (ithe person satisfies the statutory residency requirements).
Neither section 87.001 of the Local Government Code nor section 415.053 of the
Govemment Code authorizes the removal of a re-elected constable, immediately upon the
cmstable’s assumption of office, for failure timely to obtain a license to serve as a peace
of&er during the constable’s previous term. Section 87.001 of the Local Government
Code prohibits the removal of a county officer for an act the officer committed before
election to office. ‘Election to office,” in the context of section 87.001, includes re-
election. See Stole ex rel. Russell v. Kmvpp, 575 S.W.Zd 401, 402 (Tex. Civ.
App.-Amarillo 1978, writ refd n.r.e.) (citing Reeves v. Stute er rel. Mason, 276 S.W.
666,669 (Tex. 1924)). Thus, section 87.001 precludes the removal of an elected county
officer for any acts that the officer committed during a prior term of office. Id. We
(footnotecontinued)
Houe Bill 1592 thereforeproposedto eliminatethe probationaryticense for newly hired peace
oltiars, requiring instead that petsons desiringto work as peace oflicer~be trainedand kensed before
beginning employmentas a peaceofficer. Id. The bill also proposedto authorizethe commissionto 81
standards“for training and licensing. . elected peace officers.” Id. Significantly, the bill did not
proposeto alterthe eligibilityrequirementsfor electedpeaceotTicersby closing the loopholetbat permits
a~letokre-clcctcddespitcthcfactthafduringthepncedingtcrm,heorshdidaotobtaina
liamc N acme as a peace officer from the commission, in contraventionof SeCtiOn 415.053 of the
GcwermnentCede. .
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Mr. D. C. “Jii’ Dozier - Page 4 (DM-322)
believe that section 87.001 implicitly prohibits removal for an officer’s failure to act, i.e.,
failure to become licensed. Once a constable is re-elected, therefore, the district court
cannot remove the constable for failure to become a licensed peace officer during a prior
term. Instead, upon re-election the slate is wiped clean, and pursuant to section 415.053
of the Government Code, the re-elected constable has two years from the date of taking
office the second time to become a licensed peace officer. This principle applies whether
the constable is re-&cted in the same precinct or elected for the first time in a different
precinct.
In the second scenario, your predecessor stated that upon failure to become a
licensed peace officer within two years of taking office Alhnan resigned his office rather
than being removed. The county wmmissioners court then appointed Ahman to serve as
constable in either the same or a diierent precinct. Section 87.041(a)@ 1) of the Local
Government Code authorizes the wmmissioners court to ftll a vacancy in the office of
constable. See also 35 BROOKS,s&pm, § 7.17, at 243-44 (Texas Practice 1989). The
person so appointed holds office until the next genera) election. Local Gov’t Code
5 87.041(c).
Concerning the second scenario, your predecessor first asked whether Alhnan has
another two years in office before the district court may remove him for failure to be
licensed as a peace officer. Section 415.053 of the Government Code expressly grants an
officer appointed to fill a vacancy two years after the date he or she assumes office to
become licensed. Section 415.053 does not expressly exclude situations in which the
appointee previously held the office of constable and, during the constable’s previous
term, failed to obtain within two years of assuming office a license to wtve as a peace
officer. Thus, we believe that an appointed constable such as Alhnan has two years to
become licensed to serve as a peace officer, even if the appointee previously has served as
wnstabie without obtaining from the wmmission the required license.
Your predecessor next asked whether the members of the wmmissioners court are
subject to prosecution under section 415.065 of the Government Code for appointing
Allman to a position as constable. Section 415.065 criminahies the appointment of an
individual to serve as an officer in violation of sections 415.036, 415.051, or 415.057 of
the Government Code. Of these three provisions, only section 4 15.05 1 may be relevant to
the hypothetical your predecessor has posedJ Section 4 15.05 1 prohibits the appointment
of an unlicensed officer. We believe that section 415.051 may pertain only to employees
%ection 415.036 requiresany peace officm &siring to 0s~ a hypnotic intetiew technique to
complete a training course that the cxxnmissionhas approvedand to pass an examination that the
eolnmikon administera.SecIiO”415.057 ofthe Govemmwt Cede rquircs an agency hiring a personto
aaa peaa05~43to performartain tasks in counation with psychobgkaJor psycbiatrtcteatsthe
serve
petson mustcompletebeforethe wmnission may license him or heras a. .peaceoffker.
p. 1707
Mr. D. C. “Jim” Dozier - Page 5 (DM-322)
serving as peace officers, not to individuals appointed to fill a vacant elective office. See
generally Attorney General Opinion MW-111 (1979). We need not decide that issue,
however, because if a general provision and specific provision dealing with the same
subject wntlict, the specific provision controls. 67 TEX. JUR. 3D Statutes $ 126, at 720
(1989) (and sources cited therein). Section 415.053 more specifically pertains to the
appointment of a constable, and it provides the appointee with two years during which to
obtain the rewired license. Accordingly, we believe that the wmmissioners court does
not violate section 415.05 1 of the Government Code,by appointing Alhnan to the office of
constable; the wnqissioners court is not subject to liability under section 415.065 of the
Government Code.
Your predecessor asked whether Allman is subject to prosecution under section
37.11 of the Penal Code, which crhninalizes the impersonation of a public servant with the
intent to induce another to submit to his or her pretended official authority. Once Alhnan
assumes the 05ce of constable. he is a legitimate peace ol?Icer. Thus, he would not be
subject to prosecution under section 37.11 of the Penal Code.
Pinally, your predecessor asked whether AHtnan successfully may invoke the peace
officer exception to prosecution under section 46.02 of the Penal Code, which crimiaalizes
the intention& knowing, or rec.kless canying of certain weapons. Section 46.03(a)(6) of
the Penal Code excepts peace officers, other than persons commissioned by the Texas
State Board of Pharmacy, from the provisions of section 46.02. Again, once Alhnan
assumes the office of constable, he is a legitimate peace officer, and as such, he is
excepted from the scope of section 46.02 of the Penal Code.
SUMMARY
Section 415.053 of the Government Code does not preclude a
wnstable running for re-election to the 05ce of constable in the
same or, provided he or she satisfies the statutory residence
requirements, a different precinct even if the wnstable did not, within
two years of the date the constable took office in a previous term,
obtain from the Commission on Law Enforcement Officer Standards
and Education a license to serve as a peace officer. Likewise, section
415.053 does not preclude a county commissioners wurt from
appointing an individual to the office of constable although that
person during a previous term as constable, tiled, within two years
of the date he or she took office, to become licensed to serve as a
peace officer. Section 415.053 provides the m-elected or appointed
constable with two years from the date he or she assumed office to
obtain 6om the Commission on Law Enforcement Of&x Standard
and Education a license to serve as a peace officer.
p. 1708
Mr. D. C. “Jim” Dozier - Page 6 (DM-322)
The members of a commissioners court are not subject to
prosecution for violating section 415.065 of the Government Code
for appointing to the office of constable an individual who f&d,
during a previous term serving as constable, to become licensed in
accordance with section 415.053 of the Government Code. Once
such an appointee assumes office, he or she is not subject to
prosecution under section 37.1 I of the Penal Code for impersonating
a public servant. Additionally, once the appointee assumes office, he
or she may invoke the peace officer exception, Penal Code
5 46.03(a)(6), to section 46.02 of the Penal Code, which uiminalizes
the intentional, knowing, or reckless carrying of certain weapons.
DAN MORALES
Attorney Genera) of Texas
JORGE VEGA
Fii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Kymberly K. Oltrogge
Assistant Attorney General
p. 1709