Judges: DAN MORALES, Attorney General of Texas
Filed Date: 2/21/1995
Status: Precedential
Modified Date: 7/6/2016
Mr. D.C. "Jim" Dozier Executive Director Texas Commission on Law Enforcement Officer Standards and Education 1033 La Posada, Suite 240 Austin, Texas 78752
Re: Whether a constable who has not met the licensure requirements of the Commission on Law Enforcement Officer Standards and Education may run for re-election and related questions (RQ-368)
Dear Mr. Dozier:
On behalf of the Texas Commission on Law Enforcement Officer Standards and Education (the "commission"), your predecessor in office has asked us whether a constable elected after September 1, 1985, who fails to become licensed as a peace officer within two years of taking office may run for re-election. Your predecessor also asked whether a county commissioners court may appoint such an individual to the office of constable, from which office the person resigned because of his or her failure to become licensed as a peace officer within two years of assuming office. His questions are based primarily upon section 415.053 of the Government Code, which states as follows:
An officer . . . elected under the Texas Constitution or a statute or appointed to fill a vacancy in an elective office must be licensed by the commission not later than two years after the date that the officer takes office. The commission shall establish requirements for licensing and for revocation, suspension, cancellation, or denial of a license of such an officer. It is incompetency and a ground for removal from office under Title 100, Revised Statutes, or any other removal statute if an officer to whom this section applies does not obtain the license by the required date or does not remain licensed. [Footnote omitted.]
To establish a hypothetical factual background, your predecessor proposed two scenarios. In the first scenario, he described a situation in which the voters of a county elected an individual, Sam Allman, to the office of constable after September 1, 1986. Allman assumed office on January 1, 1987. Allman has not become licensed within two years of taking office, as section 415.053 of the Government Code requires. Concerning this scenario, your predecessor asked whether Allman may run for re-election and assume office.
As a preliminary matter, we will consider the constitutionality of section 415.053. Where the constitution prescribes the qualifications for holding a particular office, the legislature lacks the power to change or add to those qualifications unless the constitution provides that power. Luna v. Blanton,
By its terms, section 415.053 requires an individual, once he or she is elected to and assumes the office of constable, to obtain from the commission within two years of assuming office a license to serve as a peace officer. Section 415.053 does not prohibit a constable who failed to become licensed within two years after the date the constable assumed office from running for re-election to the office of constable in the same precinct. Consequently, we believe that Allman may run for re-election to the office of constable in the same precinct and, if elected, may assume office. Additionally, Allman may choose to run for the position of constable in a different precinct if he satisfies the statutory residence requirements. See Elec. Code 141.001(5).
Your predecessor also asked whether Allman may run for re-election in the same precinct or election in a different precinct if a district court had removed him from office during the preceding term because he failed to become licensed within the statutory two-year period. Chapter 87 of the Local Government Code empowers a district court to remove county officers, including constables, if the officer is incompetent. See Local Gov't Code §§
Neither section
In the second scenario, your predecessor stated that upon failure to become a licensed peace officer within two years of taking office Allman resigned his office rather than being removed. The county commissioners court then appointed Allman to serve as constable in either the same or a different precinct. Section
Concerning the second scenario, your predecessor first asked whether Allman has another two years in office before the district court may remove him for failure to be licensed as a peace officer. Section 415.053 of the Government Code expressly grants an officer appointed to fill a vacancy two years after the date he or she assumes office to become licensed. Section 415.053 does not expressly exclude situations in which the appointee previously held the office of constable and, during the constable's previous term, failed to obtain within two years of assuming office a license to serve as a peace officer. Thus, we believe that an appointed constable such as Allman has two years to become licensed to serve as a peace officer, even if the appointee previously has served as constable without obtaining from the commission the required license.
Your predecessor next asked whether the members of the commissioners court are subject to prosecution under section 415.065 of the Government Code for appointing Allman to a position as constable. Section 415.065 criminalizes the appointment of an individual to serve as an officer in violation of sections 415.036,
Your predecessor asked whether Allman is subject to prosecution under section
Finally, your predecessor asked whether Allman successfully may invoke the peace officer exception to prosecution under section
Very truly yours,
DAN MORALES Attorney General of Texas
JORGE VEGA First Assistant Attorney General
SARAH J. SHIRLEY Chair, Opinion Committee
Prepared by Kymberly K. Oltrogge Assistant Attorney General
[1] A constable is elected to hold office "for four years and until" his or her successor is elected and qualified. Tex. Const. art.
[2] In section
[3] In this way, section 415.053 is like any other ground for removal from office under section
[4] The legislature added the statutory predecessor, V.T.C.S. article 4413(29aa), section 6(p), to section 415.053 of the Government Code in 1985. See Acts 1985, 69th Leg., ch. 907, § 2, at 3041. The legislature intended House Bill 1592, which ultimately added section 6(p) to article 4413(29aa), V.T.C.S., to, among other things, eliminate the existing loophole through which peace officers could avoid being licensed by the commission. Senate Comm. on Jurisprudence, Bill Analysis, H.B. 1592, 69th Leg. (1985). The law as it existed at that time permitted newly-hired peace officers to receive a probationary license and forego the training required to obtain a license for up to one year. Id. After one year, the unlicensed peace officer could take a break in employment and then receive another probationary license, as the law did not require a former peace officer to be relicensed or retrained. Id. House Bill 1592 therefore proposed to eliminate the probationary license for newly hired peace officers, requiring instead that persons desiring to work as peace officers be trained and licensed before beginning employment as a peace officer. Id. The bill also proposed to authorize the commission to set standards "for training and licensing . . . elected peace officers." Id. Significantly, the bill did not propose to alter the eligibility requirements for elected peace officers by closing the loophole that permits a constable to be re-elected despite the fact that, during the preceding term, he or she did not obtain a license to serve as a peace officer from the commission, in contravention of section 415.053 of the Government Code.
[5] Section 415.036 requires any peace officer desiring to use a hypnotic interview technique to complete a training course that the commission has approved and to pass an examination that the commission administers. Section 415.057 of the Government Code requires an agency hiring a person to serve as a peace officer to perform certain tasks in connection with psychological or psychiatric tests the person must complete before the commission may license him or her as a peace officer.