# The Attorney General of Texas September 5, 1980
MARK WHITE Attorney General
Honorable Fred Toler

Executive Director Texas Commission onLaw Enforcement Officer Stds. &Educ. 220-E Twi,nTowers Office BuildinS 1106Clayton Lane Austin, Texas 78723 Opinion No. MW-233 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 ofsheriff commits a crime ifhe 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 ofsheriff.” Youask if appointed sheriffs are nevertheless shject, in part, to the strictures of s§ion 6(e)ofarticle 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 ofthis Act [certification requirements for jailers and guards] shall be guilty of a misdemeanor.

... Aswenoted inAttorney General Opinion MW-Ill,section 6(f)ofarticle 4413(29aa) expressly declares that nothinS in the act should be construed to prevent an employ@ agency from gtablishing higher standards than those established bythe Commission, and continues:

p. 738Honorable 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 ofthe Constitution ofthe State ofTexas. This language wasaccorded its plain meaning inAttorney General Opinion H-167 (1973),which concerned the authority ofcounty 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 beclassified aspeace officers, but that section 6(e) of article 4413(29aa) penalizes the appointment of a person as apeace officer or his acceptance of the appointment, unless the appointee meets the qualifications established by the Commission, Attorney General Opinion H-167concluded, “These provisions would apply to assistant county attorneys but not to county attorneys who are exempt under 56(f)ofthe Act.” Thus, section 6(e) of article 4413(29aa) reaches deputy sheriffs, who are to be prosecuted ifthey accept positions for which they have not qualified under the statute. It does not reach persons occupying the office ofsheriff, whether elected orappointed. 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 assheriff. 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 ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General Prepared byBruce Youngblood Assistant Attorney General

P. 739Honorable 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