Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 27,2004
Shirley J. Neeley, Ed.D. Opinion No. GA-025 1
Commissioner of Education
Texas Education Agency Re: Whether section 37.081(f) of the Education
1701 North Congress Avenue Code, concerning school district peace officers,
Austin, Texas 78701 conflicts with chapter 614, subchapter B of the
Government Code, concerning complaints against
certain law enforcement offtcers, police officers, and
fire fighters (RQ-0204-GA)
Dear Commissioner Neeley:
On behalf of New Caney Independent School District (the “District”), you ask whether
section 37.081(f) of the Education Code, concerning school district peace officers, conflicts with
chapter 614, subchapter B of the Government Code, concerning complaints against certain law
enforcement officers, police officers, and tire fighters.’
Under the Education Code, a school district superintendent has general administrative
responsibility for the day-to-day operations of the district. See TEX. EDUC. CODE ANN. 5
11.201(d)(5) (Vernon Supp. 2004). The superintendent has responsibility for the assignment and
evaluation ofall district personnel and initiates the termination or suspension of employees. See id.
5 11,201(d)(2), (4). Specifically concerning school district law enforcement personnel, section
37.081 of the Education Code authorizes the board of trustees of any school district to commission
peace officers and to define the officers territorial jurisdiction and duties. See id. 4 37.081(a), (d),
(e) (Vernon 1996). Such peace officers must meet all minimum standards for peace officers
established by the Commission on Law Enforcement Officer Standards and Education and be
licensed bythat commission. Id. 5 37.081(f), (h); see also TEX. CODE GRIM. PROC. ANN. art. 2.12(8)
(Vernon Supp. 2004) (listing persons commissioned under section 37.081 as a “peace officer”).
With respect to officer supervision, Education Code section 37.081(f) provides:
The chief of police of the school district police department shall be
accountable to the superintendent and shall report to the
superintendent or the superintendent’s designee. School district
‘See Letter from Shirley J. Neeley, Ed.D., Commissioner ofEducation, Texas Education Agency, to Honorable
Greg Abbott, Texas Attorney General (Apr. 6, 2004) (on file with Opinion Committee, also available af
www.oag.state.tx.us) [hereinafter Request Letter].
Shirley J. Neeley, Ed.D. - Page 2 (GA-0251)
police officers shall be supervised by the chief ofpolice of the school
district or the chief of police’s designee and shall be licensed by the
Commission on Law Enforcement Officer Standards and Education.
TEX. EDUC. CODE ANN. 5 37.081(f) (Vernon 1996).
Subchapter B of the Government Code is entitled “Complaint Against Law Enforcement
Officer or Fire Fighter.” TEX. GOV’T CODE ANN. $5 614.021-,023 (Vernon 1994). The subchapter
applies only to a complaint against:
(1) a law enforcement officer of the State of Texas, including an
officer of the Department of Public Safety or of the Texas Alcoholic
Beverage Commission;
(2) a tire fighter who is not covered by a civil service statute; or
(3) a police officer who is not covered by a civil service statute.
Id. 5 614.021. Section 614.022 states that “[t]o be considered by the head of a state agency or by the
head of a tire or police department, the complaint must be: (1) in writing; and (2) signed by
the person making the complaint.” Id. $ 614.022. A copy of a signed complaint against a law
enforcement officer, tire fighter, or police officer must be given to the officer within a reasonable
time after the complaint is tiled, without which no disciplinary action may be taken. See id.
5 614.023.
The District wants the superintendent to be able to administer appropriate discipline with or
without a complaint in the interest of school safety.’ Specifically, the District is concerned that
children or their parents may be unable or disinclined to tile a written, signed complaint. See New
Caney I.S.D. Letter, supra note 2, at 2. Additionally, the District suggests that chapter 614,
subchapter B of the Government Code conflicts with the duties of a superintendent to evaluate the
conduct of all personnel and to initiate the termination or suspension of employees. See id.
As a preliminary matter, we note that neither section 37.081 of the Education Code nor
chapter 614, subchapter B ofthe Government Code defines the term “police officer” or suggests that
it has other than its ordinary meaning. Section 614.02 l’s only restriction is that it does not apply to
police officers who are covered by a civil service statute. See TEX. GOV’T CODE ANN. 5 614.021(3)
(Vernon 1994). Giving the term “police officer” its ordinary meaning, we conclude that a police
officer of a school district police department will be subject to chapter 614, subchapter B of the
Government Code, absent conflict with some other statute. See id. 5 3 11 .Ol 1(a) (Vernon 1998)
(words are to be construed in context and according to common usage unless they have acquired a
2SeeLetter~omRichardCowan,SuperintendentofSchools,NewCaneyIndependent SchoolDistrict, toshirley
J. Neeley, Ed.D., Commissioner of Education, Texas Education Agency, at 2 (Mar. 11, 2004) (on file with Opinion
Committee, also available of www.oag.state.tx.us) [hereinafter New Caney I.S.D. Letter].
Shirley J. Neeley, Ed.D. - Page 3 (GA-0251)
technical or particular meaning); seealsoL &M-SurcoMfg,, Inc. v. Winn Tile Co., 580 S.W.2d 920,
926 (Tex. Civ. App.-Tyler 1979, writ dism’d) (when “the same or a similar term is used in the same
connection in different statutes, it will be given the same meaning in one that it has in another, unless
there is something to indicate that a different meaning was intended”).
The District has suggested that sections 614.022 and 614.023 of the Government Code
conflict with a superintendent’s duties under section 11.201(d) and section 37.081 of the Education
Code. See New Caney I.S.D. Letter, supra note 2, at 2. Under section 37.081, a peace officer is
supervised by the chief of police of the school district (or a designee), and the chief of police is
accountable to the superintendent. See TEX. EDUC. CODE ANN. 5 37.081(f), (h) (Vernon 1996).
Thus, a superintendent does not have direct responsibility for disciplining officers ofa school district
police department. See id. A chief of police may supervise and discipline a school district officer
under section 37.081(f) of the Education Code after providing the notice required by sections
614.022 and 614.023 of the Government Code. A superintendent may exercise the duty under
section 11.201(d) to evaluate and “initiat[e] the termination or suspension of an employee” such as
a police officer of the school district police department, as long as the officer/employee receives a
copy ofthe complaint prior to the imposition of such disciplinary measures. See id. 5 11.201(d)(2),
(4) (Vernon Supp. 2004); see also TEX. GOV’T CODE ANN. 5 614.023(b) (Vernon 1994).
Accordingly, we conclude that chapter 614, subchapter B ofthe Government Code does not conflict
with a superintendent’s duties under sections 11.201(d) and 37.081 of the Education Code.
We disagree with the district that a construction giving effect both to section 37.081 of the
Education Code and to chapter 614, subchapter B of the Government Code would be unworkable
because children or their parents may be unable or disinclined to provide a written complaint. The
authority of a head of a police department to discipline is not limited to complaints filed by a citizen
under section614.022 ofthe Government Code. CompareFudgev. Haggar, 621 S.W.2d 196,198
(Tex. App.-Texarkana 1981, writ ref d n.r.e.) (a complaint si,gned by an internal affairs investigator
satisfied the requirements ofthe predecessor statute to chapter 614, subchapter B of the Government
Code) wifh Guthery v. Taylor, 112 S.W.3d 715,723 (Tex. App.-Houston 114th Dist.] 2003, no pet.)
(police chiefs notice of charges, without signed written complaint from person making complaint
or internal affairs report, did not satisfy requirements of sections 614.022 and 164.023 of the
Government Code). As circumstances warrant, a superintendent of the school district or others may
initiate disciplinary action by tiling a signed complaint, or complaints may prompt an internal
investigation and report by the police department sufficient to satisfy the requirements of chapter 6 14
of the Government Code.
Shirley J. Neeley, Ed.D. - Page 4 (GA-025 1)
SUMMARY
Section 37.081(f) of the Education Code, concerning school
district peace officers, does not conflict with chapter 614, subchapter
B of the Government Code, concerning complaints against certain
law enforcement officers, police officers, and fire fighters. A school
district police department cannot take disciplinary action on a
complaint against a police officer without giving the officer a copy of
the complaint signed by the complainant.
Very truly yours,
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee