Judges: MARK WHITE, Attorney General of Texas
Filed Date: 9/5/1980
Status: Precedential
Modified Date: 7/6/2016
Honorable Fred Toler Executive Director Texas Commission on Law Enforcement Officer Stds. Educ. 220-E Twin Towers Office Building 1106 Clayton Lane Austin, Texas 78723
Re: Scope of article 4413(29aa) exception for sheriffs
Dear Mr. Toler:
Attorney General Opinion
The statute at issue, article 4413(29aa), establishes the Commission on Law Enforcement Officer Standards and Education, describes its duties, and empowers it, among other things, to certify persons as being qualified to be peace officers. See Attorney General Opinion
Any person who accepts appointment as a peace officer, or any person who appoints or retains an individual as a peace officer, in violation of Subsections (b) or (c) of this section [certification requirements for peace officers] or in violation of Section 7A of this Act [certification requirements for jailers and guards] shall be guilty of a misdemeanor. . . .
As we noted in Attorney General Opinion
. . . nor shall anything herein be construed to affect any sheriff, constable or other law enforcement officer elected under the provisions of the Constitution of the State of Texas.
This language was accorded its plain meaning in Attorney General Opinion H-167 (1973), which concerned the authority of county attorneys and their assistants to carry pistols in the discharge of various duties. County attorneys, like sheriffs, occupy elective offices under our Constitution. After noting that county attorneys and their assistants in certain circumstances can be classified as peace officers, but that section 6(e) of article 4413(29aa) penalizes the appointment of a person as a peace officer or his acceptance of the appointment, unless the appointee meets the qualifications established by the Commission, Attorney General Opinion H-167 concluded, `These provisions would apply to assistant county attorneys but not to county attorneys who are exempt under § 6(f) of the Act.'
Thus, section 6(e) of article 4413(29aa) reaches deputy sheriffs, who are to be prosecuted if they accept positions for which they have not qualified under the statute. It does not reach persons occupying the office of sheriff, whether elected or appointed. They are immune from prosecution under the statute for appointing or retaining such deputies. See Attorney General Opinions
Very truly yours,
Mark White Attorney General of Texas
John W. Fainter, Jr. First Assistant Attorney General
Prepared by Bruce Youngblood Assistant Attorney General