Untitled Texas Attorney General Opinion ( 2002 )

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
August 28,2002
The Honorable Robert June11 Opinion No. JC-0548
Chair, Committee on Appropriations
Texas House of Representatives Re: Whether, under section 1701.356 of the
P.O. Box 2910 Occupations Code, an honorably retired peace
Austin, Texas 78768-2910 officer within the State Park Law Enforcement
Program holds an active license, without the need
for further continuing-education under section
1701.351 of the same code (RQ-0522-JC)
Dear Representative Junell:
Generally, a peace officer who takes “a break in employment” but who wishes to resume
service as a peace officer must reactivate his or her license in accordance with rules of the Texas
Commission on Law Enforcement Officer Standards and Education (“TCLEOSE”). TEX.Oct. CODE
ANN. 8 1701.316(a) (Vernon 2002); see 37 TEX. ADMIN. CODE § 217.19 (2002) (TCLEOSE,
“Reactivation of a License”). In addition, an active, licensed peace officer generally must complete
at least forty hours of continuing-education programs every twenty-four months. See TEX. OCC.
CODE ANN. 5 1701.351(a) (Vernon 2002); 37 TEX. ADMIN. CODE 8 217.11 (2002) (TCLEOSE,
“Legislatively Required Continuing Education for Licensees”). But section 1701.356 of the
Occupations Code exempts from the reactivation and continuing-education requirements
“[a]n honorably retired commissioned officer of the Department of Public Safety who is a special
ranger. . . or retired state employee.” TEX. Oct. CODE ANN. 8 1701.356 (Vernon 2002). You ask
whether a peace officer in the State Park Law Enforcement Program is exempt from the reactivation
and continuing-education requirements under section 1701.356.’ Presuming that you ask only about
a retired officer, we conclude that a peace officer who has retired from the State Park Law
Enforcement Program is a “retired state employee” whom section 1701.356 exempts from the
statutory reactivation and continuing-education requirements. See id.
An individual may not be appointed to serve as a peace officer in Texas unless he or she
has obtained an “appropriate license” from TCLEOSE. Id. 8 1701.301; see 37 TEX.ADMIN. CODE
8 217.1 (2002) (TCLEOSE, “Minimum Standards for Initial Licensure”). An appointment to serve
‘Letter from Honorable Robert Junell, Chair, Committee on Appropriations, Texas House of Representatives,
to Honorable John Comyn, Texas Attorney General (Mar. 6,2002) [hereinafter Request Letter] and enclosed Letter from
John W. Culbertson to Honorable Robert Junell, Texas House of Representatives (Mar. 1,2002) [hereinafter Culbertson
Letter] (documents on file with Opinion Committee).
The Honorable Robert June11 - Page 2 (JC-0548)
as a peace officer, as well as a termination of appointment, must be reported to TCLEOSE, see TEX.
ADMIN. CODE 9 217.7 (2002) (TCLEOSE, “Reporting the Appointment and Termination of a
Licensee”), and TCLEOSE will place a license that has not been reported “as appointed for more
than two years” in an inactive status, see id. 5 2 17.19(a) (TCLEOSE, “Reactivation of a License”);
see also id. 8 217.19(d) (stating that inactive license-holder is unlicensed for purposes of chapter
1701, Occupations Code). An inactive licensee who desires to reactivate his or her peace officer
license must comply with TCLEOSE rules for reactivation, which require course work and an
examination:
(g) Before individuals with inactive licenses may be appointed
they must:
(1) meet the current licensing standards, with successful
completion of a basic licensing course current at the time of initial
licensure; fulfilling this requirement;
(2) successfully complete the legislatively required continuing
education for the current training cycle[;]
(3) make application and submit any required fee(s) for an
endorsement in the format currently prescribed by the commission;
(4) obtain an endorsement, issued by the commission, giving
the individual eligibility to take the required licensing examination;
and
(5) pass the licensing. examination for the license to be
reactivated. If failed three times, the applicant may not be issued
another endorsement of eligibility until successful completion of the
current basic licensure course.
26Tex. Reg. 7995 (2001) corrected 26 Tex. Reg. 9435, adopted 27 Tex. Reg. 48 l(2002) (amending
37 TEX. ADMIN. CODE 8 217.19) (TCLEOSE, “Reactivation of a License”); see also TEX.Oct. CODE
ANN. 5 1701.3 16(a) (Vernon 2002) (requiring TCLEOSE to regulate reactivation of peace officer’s
license).
Section 1701.351 of the Occupations Code requires a licensed peace officer in Texas to
complete “at least [forty] hours of continuing education programs once every [twenty-four] months.”
TEX. Oct. CODE ANN. 9 1701.351(a) (Vernon 2002); accord 37 TEX. ADMIN. CODE § 217.11(a)
(2002) (TCLEOSE, “Legislatively Required Continuing Education for Licensees”). While
TCLEOSE may waive the continuing-education requirement “when mitigating circumstances exist,”
in general TCLEOSE may suspend the license of a peace officer who fails to comply with the
continuing-education requirement. TEX. OCC. CODE ANN. 9 1701.35 l(a), (b) (Vernon 2002); see
The Honorable Robert June11 - Page 3 (JC-0548)
also 37 TEX. ADMIN. CODE 5 217.15 (2002) (TCLEOSE, “Waiver of Legislatively Required
Continuing Education”). But see TEX. OCC. CODEANN. 0 1701.35 1(c) (Vernon 2002) (requiring
TCLEOSE to credit peace officer who serves as elected legislator).
Section 1701.356 of the Occupations Code exempts certain peace officers from the
reactivation and continuing-education requirements, however:
An honorably retired commissioned officer of the Department
of Public Safety who is a special ranger under Section 411.023,
Government Code, or retired state employee and who holds a
permanent license issued before January 198 1 and that was current on
January 1,1995:
(1) has the same rights and privileges as any other peace
officer of this state;
(2) holds, notwithstanding Section 1701.3 16 [requiring
TCLEOSE to regulate reactivation], an active license unless the
license is revoked, suspended, or probated by the commission for a
violation of this chapter; and
(3) is not subject to Section 1701.35 1 [requiring continuing
education].
Id. 0 1701.356.
You ask whether section 1701.356 of the Occupations Code exempts a peace officer within
the State Park Law Enforcement Program from the reactivation and continuing-education
requirements. See Request Letter, supra note 1, at 1; Culbertson Letter, supra note 1, at 1. We
presume that the State Park Law Enforcement Program is a state employer.
The director of the Parks and Wildlife Commission is authorized to commission “as peace
officers any of the employees provided for in the general appropriations act.” TEX. PARKS& WILD.
CODE ANN. 0 11.019(a) (Vernon 2002); see also id. 5 11.018 (authorizing director to appoint law
enforcement officers “authorized by appropriations and necessary for administering” department’s
duties and services). Law enforcement officers whom the director of the Parks and Wildlife
Commission has commissioned “have the same powers, privileges, and immunities as peace officers
coextensive with” state boundaries. Id. 8 11.019(b). In addition, a law enforcement officer
“commissioned by the Parks and Wildlife Commission” is a peace officer for the purposes of article
2.12 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC.ANN. art. 2.12( 10) (Vernon
supp. 2002); see also TEX.OCC. CODEANN. 8 170 1.OOl(4) (Vernon 2002) (defining “peace officer”
as person who is “elected, employed, or appointed as a peace officer under” Code of Criminal
Procedure article 2.12). You suggest that peace officers within the State Park Law Enforcement
The Honorable Robert June11 - Page 4 (JC-0548)
Program were overlooked when section 1701.356 was codified in 1999 and are no longer within the
exemption. See Culbertson Letter, supra note 1, at 1.
We assume, first, that you ask only about retired officers who held permanent licenses issued
before January 1981 and current on January 1,1995, and who were employed by the Texas Parks
and Wildlife Commission. We assume, second, that the officers about whom you ask are not special
rangers under section 411.023 of the Government Code. That section authorizes the Public Safety
Commission to “appoint as special rangers honorably retired commissioned officers of the”
Department of Public Safety “and not more than 300 other persons.” TEX. GOV’T CODE ANN.
fj 411.023(a) (V emon Supp. 2002); see also id. 9 411 .OOl( l), (2) (defining “Cornmission” and
“Department”). A special ranger is subject to Commission and gubernatorial orders, but may
enforce only laws designed to protect life and property. See id. 5 411.023(b).
Given our assumptions, the issue is whether a peace officer who has retired from employment
with the State Park Law Enforcement Program is within the phrase “retired state employee” in
section 1701.356. The resolution of this issue depends upon whether we read “retired state
employee” as a kind of “honorably retired commissioned officer” (“An honorably retired
commissioned officer of the Department of Public Safety who is a special ranger” or “[a]n honorably
retired commissioned officer . . . who is a . . . retired state employee”), or whether we read the
phrase “retired state employee” as second category of individual, alternative to an “honorably
retired commissioned officer. . . who is a . . . special ranger” (“An honorably retired commissioned
officer . . . who is a special ranger,” in addition to a “retired state employee”). The statute is
awkward in part because no article, such as the word “a,” precedes the phrase “retired state
employee.” See TEX. OCC. CODEANN. 8 1701.356 (Vernon 2002).
You suggest that the ambiguity arose during the 1999 codification. See Culbertson Letter,
supra note 1, at 1 (“This is in reference to the TCLEOSE Statute as revised by the 76th Legislature
in HB 3155”); Act of May 13, 1999, 76th Leg., R.S., ch. 388, 8 1, sec. 1701.356, 1999 Tex. Gen.
Laws 143 1,2223. Prior to codification, the statute (section 415.052(d) of the Government Code)
applied to “a special ranger” or “a retired state employee”:
(d) Notwithstanding Subsection (c), if a permanent license was
issued before January[] 198 1 [] to an honorably retired commissioned
officer of the Department of Public Safety who is a special ranger
under 411.023 or a retired state employee and the license was current
on January 1, 1995, the holder of the license shall have the same
rights and privileges as any other peace officer of this state and the
license shall be considered active unless revoked, suspended, or
probated by the commission for a violation of a provision of this
chapter other than Section 4 15.034 [continuing-education
requirement], which shall not apply to the holder of such license.
The Honorable Robert June11 - Page 5 (JC-0548)
Act of May 26,1995,74th Leg., R.S., ch. 585,§ 6,1995 Tex. Gen. Laws 3382,3384 (former section
415.052(d), Government Code), repealed by Act of May 13, 1999, 76th Leg., R.S., ch. 388,
8 6(b)(l), 1999 Tex. Gen. Laws 143 1,244O. The codified version moved “[a]n honorably retired
commissioned officer. . . or [a] retired state employee” to the beginning of the sentence and deleted
the article “a” before “retired state employee.” The legislature expressly stated that the codification
was intended to be nonsubstantive. See Act of May 13, 1999,76th Leg., R.S., ch. 388, 5 7, 1999
Tex. Gen. Laws 143 1,244O; cJ:OFFICEOFHOUSE,BILL ANALYSIS,Tex. H.B. 3 155,76th Leg., R.S.
(1999) (stating that Texas Legislative Council took “meticulous care to ensure that no substantive
change has been made in the law and to preserve any ambiguity or interpretation that may exist in
current law”).
In our opinion, “[a]n honorably retired commissioned officer of the Department of Public
Safety who is a special ranger under Section 411.023 of the Government Code” and “[a] retired state
employee” are two categories of licensees to whom section 1701.356 applies. The alternative
construction would effectively refer to “[a]n honorably retired commissioned officer of the
Department of Public Safety who is a . . . retired state employee and who holds . . . .” This
construction repeats the word “retired” and assumes that a commissioned Department of Public
Safety officer may not be a state employee. We believe it is improbable that the legislature intended
such a construction, and we decline to adopt it. See TEX. GOV’T CODEANN. 8 3 11.021(3) (Vernon
1998) (stating presumption that legislature intends “Just and reasonable result”); id. 5 3 11.023(5)
(authorizing court to consider, when construing statute, particular construction’s consequences).
Moreover, because of the statute’s ambiguity, we construe it consistently with the pre-codified
version. Cf: Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278,286 (Tex. 1999) (stating that
court will effectuate codification’s unambiguous plain language where it cannot “be reconciled with
prior law”).
We accordingly conclude that a peace officer who has retired from the State Park Law
Enforcement Program is a retired state employee whom section 1701.356 of the Occupations Code
exempts from statutory reactivation and continuing-education requirements.
The Honorable Robert June11 - Page 6 (JC-0548)
SUMMARY
Section 1701.356 of the Occupations Code exempts from
chapter 1701 ‘s reactivation and continuing-education requirements a
retired state employee who holds a permanent license that was issued
before January 198 1 and that was current on January 1, 1995. See
TEX. OCC. CODE ANN. 0 1701.356 (Vernon 2002). Presumably, a
licensed peace officer who has retired from the State Park Law
Enforcement Program is a retired state employee for the purposes of
section 1701.356.
You very truly,
4Qcd-r
JOriN CORNYN
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee