DAN MORALES 

.,TTORSEI GESERAL 

@ffice of tiy !Zlttornep @enera 

&ate of ZEexaa 

April 16,1992 

Honorable Dan M. Boulware 

District Attorney 

Opinion No. DM-105 

Johnson and Somervell Counties 

Johnson County Courthouse 

Clebume, Texas 76031 

Re: Whether the Texas Commission on 

Law Enforcement Officer Standards and 

Education exceeded its rulemaking 

authority in promulgating title 37, section 

211.80(a)(l) of the Texas Administrative 

Code (RQ-293) 

Dear Mr. Boulware: 

You ask about the validity of title 37, section 211.80(a)(l) of the Texas 

Administrative Code a regulation through which the Texas Commission on Law 

Enforcement Officer Standards and Education (hereinafter the commission) 

requires an applicant for a license as a peace officer, a reserve, an armed public 

security officer, or a jailer to be a citizen of the United States of America. You urge 

that the commission has exceeded its authority to promulgate rules under section 

415.010 of the Government Code, which grants the commission rulemaking power. 

We conclude that in this circumstance, the commission has exceeded its rulemaking 

authority. 

The determining factor in answering the question of whether a particular 

administrative agency has exceeded its rulemaking power is whether the rule is in 

harmony with the general objectives of the statute which grants that agency 

rulemaking power. Gersr V. Oak CZijf Sm. & Loan Ass’n, 432 S.W.2d 702 (Tex. 

1968); Attorney General Opinion JM-609 (1986); see aLro Attorney General 

Opinion DM-68 (1991) (administrative agency may not impose restrictions that are 

inconsistent with its statutory powers). Section 415.010(10) of the Government 

Code authorizes the commission to 

establish minimum standards relating to competence and reliability, including educational, training, physical, mental, and 

p. 528 
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Honorable Dan M. BouIware - Page 2 W-1 05 ) 

moral standards, for licensing as an officer, county jailer, or 

public security officer.’ (Footnote added.) 

Under this provision, the legislature has granted the commission the discretion to 

establish minimum standards for licensing certain law enforcement officers. This 

discretion is not unbridled; the standards must relate only to an applicant’s competence and reliability. Furthermore, section 415.010 lists education, training, physical and mental health, and moral character as matters the legislature considered 

pertinent to an applicant’s competence and reliability as an officer, county jailer, or 

public security offrcer. 

In order to determine whether in promulgating title 37, section 211.80(a)(l) 

of the Texas Administrative Code2 the commission has exceeded its rulemaking 

authority, we must determine whether the citizenship requirement harmonizes with 

the legislative directive of section 415.010 of the Government Code that the commission establish standards relating to competency and reliability. See Gent. Section 415.010 does not expressly include citizenship in its list of matters bearing on an 

applicant’s competence and reliability. Until 1981, the commission’s authorization 

to establish standards for the employment of peace officers expressly included 

citizenship as a matter relating to the competency and reliability of peace officers.3 

See Acts 1981, 67th Leg., ch. 699, 5 1, at 2613 (former V.T.C.S. article 4413(29aa), 

section 6(c), repealed by Acts 1987,7Oth Leg., ch. 147, 5 6(a), eff. Sept. 1, 1987, see 

now Government Code chapter 415). In 1981, citizenship was omitted from the list 

‘Because of the definitions of ofticer, county jailer, aod public security officer, found in 

sections 415.001(2), (4) - (7) of the Government Code, the law enforcement positions listed in section 

415.010 of the Government Code correspond to the offken named io title 37, section 211.80(a)(l) of 

the Texas Administrative Code: peace officer, reserve, armed public security ofker, and jailer. 

%bis rule was adopted to be effective October 19.1983. 

tie predecessor statute of section 4i5.010 of the Government Code, former article 

44l3(29aa), section 2(b), V.T.C.S., did not iodudc the citizenship language; rather it authorized the 

commission to ‘[elstablish minimum educational, traioiog, physical, mental and moral standards for 

admiiioo to employment as a peace offker. . . .’ Acts 1975,64th Leg., cb. 549,s 1, at 1809. Section 

6(c) of former article 44l3(29aa), V.T.C.S., where we find the citizenship language, thus provided 

additional authority for the commission to establish rules regarding the employment of peace ofkers. 

p. 529 
Honorable Dan M. Boulware - Page 3 (DM-105) 

of matters relating to the employment4 of competent and reliable peace officers 

about which the commission may establish rules. See H.B. 2236, Acts 1981, 67th 

Leg., ch. 757, 5 3, at 2794-95. 

We think this omission is a clear indication of the legislative intent that 

citizenship not be a qualification for a competent and reliable law enforcement 

officer. The legislature has withdrawn from the commission the authority to 

establish a rule requiring that an applicant for a license as a peace offker, reserve, 

armed public security officer, or jailer be a citizen of this country. See Stute v. 

Jackron, 376 S.W.Zd 341 (Tex. 1964). The authority of the commission to establish 

rules about competent and reliable law enforcement officers pursuant to section 

415.010 of the Government Code does not include the authority to establish United 

States citizenship as a requirement for the licensing of these officers. Therefore, the 

citizenship requirement of title 37, section 211.80(a)(l) of the Texas Administrative 

Code is not in harmony with the legislative intent of section 415.010 of the 

Government Code. See Gersr. 

Thus, we conclude that by promulgating title 37, section 211.80(a)(l) of the 

Texas Administrative Code the commission has exceeded its statutory authority. 

See, e.8, Berar County Bail Bond Bd v. Deckard, 604 S.W.2d 214 (Tex. Civ. App.-- 

San Antonio 1980, no writ) (rules adopted by administrative agency may not impose 

additional burden or condition in excess of or inconsistent with statutory provisions). 

SUMMARY 

The Texas Commission on Law Enforcement Officer Standards and Education is not authorized to promulgate title 37, 

section 211.80(a)(.l) of the Texas Administrative Code, a rule 

‘Both provisions in the prior law, sections 2(b) and 6(c) of former article 44l3(29aa), V.T.C.S., 

granted the commission the authority to establish rules regarding the employment of peace offkers, as 

distinguiied from the licensing of certain ofkcrs. Section 415.010 of the Government Code and title 

37, section 211.80(a)(l) of the Texas Administrative Code, at issue here, are about the licensing of 

certain Law enforcement oflkrs. Since employment as a law enforcement oflicer is conditioned upon 

obtaining the appropriate license, see Gov’t Code S4lS.O51(a), we think the distinction bctwecn 

licensing and employing a law enforcement oft&r is not important for purposes of inquiring into the 

intent of the legislature in granting the commission the authority to promulgate rules pertaining to the 

qualitkatiolls of competent and reliable law enforcement officers. 

p. 530 
Honorable Dan M. Bouhvare - Page 4 (DM-105) 

which requires an applicant for a peace officer, reserve, or jailer 

license to be a United States citizen. 

Very truly yours, 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Kay H. Guajardo 

Assistant Attorney General 

p. 531