Untitled Texas Attorney General Opinion ( 2002 )

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
February 21,2002
The Honorable Bobby Lockhart Opinion No. JC-0467
Bowie County Criminal District Attorney
P.O. Box 3030 Re: When a constable is required to furnish
601 Main evidence that he has been issued a permanent
Texarkana, Texas 75504 peace officer’s license (RQ-043 1-JC)
Dear Mr. Lockhart:
You have requested that we consider the situation of a constable who was appointed to fill
an unexpired term, and was subsequently elected several months later to a full term. You ask when
that individual was required to furnish evidence, pursuant to section 86.0021, Local Government
Code, that “he has been issued a permanent peace officer license.“’ We conclude that the constable
had 270 days from the date that he was sworn in to his elective term to furnish the evidence required
by section 86.0021.
You explain that a particular individual in Bowie County won the Democratic primary
election for constable of precinct three in March, 2000. Because there was no Republican candidate
on the November ballot, his primary victory was tantamount to election, although he would not
assume office as an elected official until January 1,200l. Because the precinct three position was
vacant at the time, however, the Cornmissioners Court of Bowie County, on May 1,2000, appointed
him to fill the unexpired term. On January 1,2001, he was sworn in to his elective term as constable
for precinct three.
Section 86.0021 of the Local Government Code provides, in relevant part:
(a) A person is not eligible to serve as constable unless the person:
(1) has a high school diploma or a high school equivalency
certificate; and
(2) is eligible to be licensed under Sections 1701.309 and
1701.3 12, Occupations Code.
‘Letter from Honorable Bobby Lockhart, Bowie County Criminal District Attorney, to Honorable John Cornyn,
Texas Attorney General at 2 (Sept. 6,200l) (on file with Opinion Committee).
The Honorable Bobby Lockhart - Page 2 (JC-0467)
(b) On or before the 270th day after the date a constable takes
office, the constable shall provide, to the commissioners court of the
county in which the constable serves, evidence that the constable has
been issued a permanent peace officer license under Chapter 1701,
Occupations Code. A constable who fails to provide evidence of
licensure under this subsection or who fails to maintain a permanent
license while serving in office forfeits the office and is subject to
removal in a quo warrant0 proceeding under Chapter 66, Civil
Practice and Remedies Code.
TEX. Lot. GOV’T CODE ANN. 5 86.0021 (a), (b) (V emon Supp. 2002) (emphasis added). Subsection
(b) became effective on August 30, 1999, and is thus applicable to the situation you pose. See Act
of May 26, 1999,76th Leg., R-S., ch. 877, 5 1, 1999 Tex. Gen. Laws 3572.
The constable provided evidence of his licensure to the Commissioners Court on
September 17,2001, i.e., 259 days after he was sworn in to his elective term.* The question you
raise is whether the constable was required to obtain the license imposed by subsection (b) by
January 25,2001, the 270th day after his appointment to fill the unexpired term. If he were obliged
to do so, subsection 86.002 1(b) states that he forfeited his office and was subject to removal in a quo
warranto proceeding.
In our opinion, the constable in question was not subject to removal by virtue of his failure
to obtain licensure by January 25, 2001. A constable serves by terms, in this case, a term of four
years. TEX. CONST.art. V, 9 18. On January 25,2001, the date by which he was required to furnish
evidence of licensure for the unexpired term to which he was appointed, that term had been
completed, and a new one had begun.
This office considered a similar situation in Attorney General Opinion DM-322. There, a
constable had been removed from office for failure to timely obtain licensure as a peace officer. The
opinion concluded that such removal did not preclude his running for election to a subsequent term.
Tex. Att’y Gen. Op. No. DM-322 (1995) at 5. The opinion was based on section 87.001 of the Local
Government Code which provides that “[a]n officer may not be removed under this chapter for an
act the officer committed before election to ofIke.” TEX. LOC.GOV’T CODE ANN. 8 87.001 (Vernon
1999). Attorney General Opinion DM-322 declared:
[Slection 87.001 precludes the removal of an elected county
officer for any acts that the officer committed during a prior term of
office. . . . We believe that section 87.001 implicitly prohibits
removal for an officer’s failure to act, i.e., failure to become licensed.
*Letter from Honorable Benny Barrett, Constable, Precinct 3, Bowie County, to Ms. SusanD. Gusky, Chair,
Opinion Committee, Office of Attorney General (Nov. 9,200l) (on file with Opinion Committee).
The Honorable Bobby Lockhart - Page 3 (JC-0467)
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 Governrnent 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-elected in the same precinct or
elected for the first time in a different precinct.
Tex. Att’y Gen. Op. No. DM-322 (1995) at 3-4 (emphasis added).
The principle announced in Attorney General Opinion DM-322 is even more compelling in
the circumstances you present here. The individual in question was not only never removed from
the position to which he was appointed: he could not have been removed. Subsection 87.001(b)
granted him 270 days from the date of his appointment to obtain licensure. But because his
appointed term was in existence for only 245 days, he was never required to obtain licensure for that
term. As in Attorney General Opinion DM-322, when he took office for his elective term on January
1, 2001, “the slate was wiped clean,” and the constable had 270 days from that date to provide
evidence of his licensure.
We conclude that the constable of precinct three of Bowie County had 270 days from the date
he was sworn in to office for his elective term - January 1,2001, to furnish to the Commissioners
Court of Bowie County the evidence of licensure required by subsection 86.0021(b) of the Local
Government Code.
The Honorable Bobby Lockhart - Page 4 (JC-0467)
SUMMARY
The constable of precinct three of Bowie County had 270
days from the date he was sworn in to office for his elective term -
January 1, 2001, to furnish to the Commissioners Court of Bowie
County the evidence of licensure required by subsection 86.0021 (b)
of the Local Government Code.
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
Rick Gilpin
Assistant Attorney General, Opinion Committee