Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
December 21, 1979
.
Honorable Fred Toler Opinion No. MW-~U
Executive Director
Texas Commission on Law Enforcement Re: Whether article 4413(29ae),
Officer Stander& end Education V.T.C.S., applies to persons
1106Clayton Lane qeptiirfted to fill vacated office of
Austin, Texas 76723
Deer Mr. Toler:
You ask whether a person appointed sheriff to fill a vacancy for an
unexpired term commits e crime if he accepts the appointment without first
having completed a preparatory program of training in law enforcement et a
school approved or operated by the Texas Commission on Law Enforcement
Officer Standards end Education purment to article 4413(29aa), V.T.C.S.
Article 44l3(29e& V.T.C.S., es emended by Acts 1979, 66th Leg., ch.
230, at 499, provides:
Sec. 6. (b) A person who has not satisfactorily
completed preparatory training in law enforcement at
a schod that is operated by or approved by the
Commission is eligible to be appointed as a peace
officer only on a probationary basis. . . .
(c) In addition to the requirements of Subsection (b)
of this section, the Commission, by rules and
regulation% may establish other qualifications for the
employment of peace officers . . . and the
Commission shall prescribe the means of presenting
evidence of fulfillment of these requirements. No
person shall be appointed as a peace officer unless he
fulfills such requirements
. ...
(e) Any person who accepts appointment as a peace
officer, or any person who appoints or retains en
individual as a peace officer, in violation of
Subsections (b) or (c) of this section shall be guilty of
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Honorable Fred Toler - Page T,wo (Rw-111)
e misdemeanor end upon conviction shall be fined not less then One
Hundred Dollars ($100.00) nor more then One Thousand Dollars
($1,000.00).
(f) Nothing herein shall be construed to preclude en empioying
agency from establishing qualifications and standards for hiring or
training peace officers which exceed the minimum standards set by
the Commission nor shall anything herein be construed to affect
eny sheriff, constable or other law enforcement officer elected
under the provisions of the Constitution of the State of Texas.
(Emphasis added.
When this statute is considered in its entirety and reed together with article V,
section 23 of the Texas Constitution end article 2355 of the statutes, it is clear that it
does not apply to persons occupying the elective office of sherift The Texas Commission
on Law Enforcement Officer Standards end Education has been given authority and power
to:
[ejstablish minimum educational, training, physical, mental end
moral stander& for admission to employment as e peace officer?
(1) in permanent positions, end (2) in temporary or probationary
status.
V.T.CS. art 4413(29*&I S 2(b) (emphasis added. Persons who fill the constitutional office
of sheriff, whether by popular election or election by members of e commissioners court,
do not occupy either permanent or temporary positions; they ere elected for e term or
part thereof. The Constitution of Texas does not provide for appointments to &mice
on a “permanent” or “temporary” or “probationary” basis Article V, section 23 reed%
There shell be elected by the qualified voters of each county a
Sheriff, who shall hold his office for the term of four years, whose
duties end perquisites, end fees of office, shall be prescribed by the
Legislature, end vecandes in whose office shall be filled by the
Commissioners Court until the next general election.
(Emphasis added. See V.T.C.S. art. 2355; Parker v. Nobles, 496 S.W.2d 921 (Tex. 1973);
Dobkins v. Reece, lmW.2d 574 (Tex. Civ. App. - Fort Worth 1929, no writ); Maddox v.
York, 54 SW. 24 (Tex. Civ. App. 1699), efPd, 55 S.W. 1133 (Tex. 1900); Attorney General
-on G-2965 (1940). See also DobkinsReece, 17 S.W.2d 61 (Tex. Civ. App. - Fort
Worth 1929, writ ref’d).
The statute implementing the constitutional provision, article 2355, V.T.C.S.,
provides that vacancies in the office of sheriff are to be filled by “e majority vote of the
members of [the Commissionersl Court,” end in Dobkins v. Reece, *, the court spoke
of en action taken to replace e deceased sheriff:
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Honorable Fred Toler - Page Three (MW-111)
On January 2,1929, the matter of the election or appointment of e
sheriff again was considered by the commissioners1 court and Ate
Reece was elected, aa shown by the minutes. . . .
17 S.W.2d et 92 (emphasis added).
Section 6(f) of article 4413(29ae), quoted above, shows plainly that the statute was
intended to apply only to those persons hired to act as peace officers, end not to persons
filling constitutional offices.
A somewhat analogous question was considered in Attorney General Opinion H-1266
(1976). There, it was asked whether citizens summoned into service as a special police
force purrrrant to article 995, V.T.C.S., were subject to the requirements of article
4413(29ee). This office answered that the intended thrust of the statute is revealed by
section
. . 2(b) thereof (quoted above) which authorizes the commission to “establish
mmlmum . . . standards for admission to employment as a peace officer. . . .“, end that it
reached “only persons seeking employment as peace officers, and not citizens involuntarily
pressed into service as keepers of the peace.” It was also noted there that article
44l3(29ea), section 9, specifies:
Except as expressly provided in this Act, nothing herein contained
shall be deemed to limit the powers, rights, duties and
responsibilities of municipal or county governments. . . .
For similar reasons, article 4413(29ea) does not reach persons filling vacated
constitutional offices. We note, parenthetically, that if the statute were construed
otherwise, the requirements of the statute would constitute qualifications for the office.
There would be one set of qualifications for the office if occupied by en appointee, and
another set for it if occupied by e person popularly elected to it. The office of sheriff is a
constitutional one whether filled by a person popularly elected or one elected by the
commissioners court. Statutory provisions that restrict the right to hold public office ere
construed strictly against ineligibility, m 377 S.W.2d 622 (Tex. 19641, end
article I, section 3 of the Constitution, which was designed to prevent unreasonable
discrimination, epplies to political rights Burroughs v. Lyles, 161S.W.2d 570 (Tex. 1944).
Cf. Hall v. Beum, 452 S.W.2d 699 (Tex. 1970), appeal dismissed, 397 U.S. 93 (1970). We
Gd not discuss the constitutional implications of delegating to the commission power to
prescribe qualifications for a constitutional office, for the legislative exemption of “any
sheriff.. . elected under the provisions of the Constitution” from the operation of article
4413(29ea) was intended to, end did, exempt the office of sheriff. -See Lune v. Blenton,
478 S.W.2d 76 (Tex. 1972).
SUMMARY
Article 4413(29aa), V.T.C.S., does not apply to persons filling
vacated constitutional offices of sheriff
eg Attorney General of Texas
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Honorable Fred Toler - Page Four (MN-I.111
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Tom Bullington
Charles Campbell
Bob Gemmage
Susan Garrison
Rick Gilpin
Bruce Youngblood
p. 354