# The Attorney General of Texas

December 21, 1979

. Honorable Fred Toler Executive Director Texas Commission onLaw Enforcement Officer Stander& end Education 1106Clayton Lane Austin, Texas 76723 Deer Mr.Toler: Opinion No. MW-~U Re: Whether article 4413(29ae), V.T.C.S., applies to persons qeptiirfted to fill vacated office of

You ask whether a person appointed sheriff to fill a vacancy for an unexpired term commits ecrime ifheaccepts the appointment without first having completed apreparatory program of training inlaw 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 inlaw enforcement at a schod that is operated by or approved by the Commission is eligible to be appointed as a peace officer only on aprobationary basis.

.. . (c)In addition to the requirements ofSubsection (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 asapeace 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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e misdemeanor end upon conviction shall befined 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 ofthe Constitution ofthe State ofTexas. (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 onLaw 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*&IS2(b)(emphasis added. Persons whofill 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 ona“permanent” or “temporary” or “probationary” basis Article V,section 23reed%

There shell be elected by the qualified voters of each county a Sheriff, whoshall hold his office for the term of four years, whose duties end perquisites, end fees ofoffice, shall beprescribed bythe 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, 17S.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 ofthe members of [the Commissionersl Court,” end in Dobkins v. Reece, *, the court spoke ofen action taken to replace edeceased sheriff:

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OnJanuary 2,1929, the matter of the election or appointment ofe sheriff again was considered by the commissioners1 court and Ate Reece was elected, aa shownbythe minutes.

... 17S.W.2det 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 aspeace 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 aspeace 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 ifoccupied byeperson popularly elected to it. The office of sheriff isa 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 ofdelegating 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, 478S.W.2d76(Tex. 1972). - SUMMARY Article 4413(29aa), V.T.C.S., does not apply to persons filling vacated constitutional offices ofsheriff 

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Attorney General ofTexas P. 353Honorable Fred Toler - Page Four (MN-I.111

JOHN W.FAINTER, JR. First Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General Prepared byBruce Youngblood Assistant Attorney General APPROVED: OPINION COMMITTEE C.Robert Heath, Chairman David B.Brooks Tom Bullington Charles Campbell BobGemmage Susan Garrison Rick Gilpin Bruce Youngblood

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