The Attorney General of Texas 

September 5, 1980 

MARK WHITE 

Attorney General 

Honorable Fred Toler 

Executive Director 

Texas Commission on Law 

Enforcement Officer Stds. & Educ. 

220-E Twi,n Towers Office BuildinS 

1106 Clayton Lane 

Austin, Texas 78723 

Opinion No. MW-2 3 3 

Re: Scope of article 4413(29aa) 

exception for sheriffs 

Dear Mr. Toler: 

Attorney General Opinion MW-ill (1979) concerned the question of 

whether an appointee who fills a vacancy in the office of sheriff commits a 

crime if he accepts the appointment without first satisfying certain training 

requirements at a school approved or operated by the Commission on Law 

Enforcement Standards and Education. The opinion concluded that the 

appointee would be guilty of no crime because article 4413(29aa), V.T.C.S., 

“does not apply to persons occupyi% the elective office of sheriff.” You ask 

if appointed sheriffs are nevertheless shject, in part, to the strictures of 

s§ion 6(e) of article 4413(29aa). 

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 H-1286 (19’78). Section 6(e) 

thereof reads: - 

Any person who accepts appointment as a peace 

officer, or any person who appoints or retains an 

indivi&ral as a peace officer, in violation of Subsections (b) or (c) of this section [certification 

requirements for peace officers1 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 MW-Ill, section 6(f) of article 

4413(29aa) expressly declares that nothinS in the act should be construed to 

prevent an employ@ agency from gtablishing higher standards than those 

established by the Commission, and continues: 

p. 738 
Honorable Fred Toler - Page Two (MW-233) 

. . .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 56(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 H-1002 (1977); M-1267 (1972); M-1026 (1971). 

Appointed sheriffs are also immune from prosecution under that provision for having 

accepted appointment as sheriff. Attorney General Opinion MW-lll(1979). 

SUMMARY 

Section 6(e) of article 4413(29aa), V.T.C.S., which penalizes 

the appointment of peace officers not certified by the Commission on Law Enforcement Officer Standards and Education, 

or the acceptance of such an appointment, does not reach 

sheriffs but does reach deputy sheriffs. ~3 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

Prepared by Bruce Youngblood 

Assistant Attorney General 

P. 739 
Honorable Fred Toler - Page Three (NW-233) 

APPROVED: 

OPINION COMMlTTEE 

C. Robert Heath, Chairman 

Jon Bible 

Charles Campbell 

Susan Garrison 

Rick Gilpin 

Bruce Youngblood 

P. 740