The Attorney General of Texas 

December 21, 1979 

. 

Honorable Fred Toler 

Executive Director 

Texas Commission on Law Enforcement 

Officer Stander& end Education 

1106 Clayton 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 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, 161 S.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 

P. 353 
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