DAN MORALES 

ATToRNEY GENERAL 

QWice of tQe !Zlttornep Qhneral 

Qtate of fLexa 

February 21,195’S 

Mr. D. C. “Jii’ Dozier 

Executive Director 

Qpinion No. DM-323 

Texas Commission on Law Enforcement 

Officer Standards and Education 

1033 La Posada, Suite 240 

Austin, Texas 78752 

Dear Mr. Dozier: 

Re: Whether the Texas Commission on 

Law Enforcement Qtlker Standards and 

Education may establish reqtdrements for 

the revocation of licenses of law-enforcement officers elected under the Texas 

Constitution, including sheriffs and constables, and related question (RQ-676) 

On behalf of the Texas Commission on Law Enforcement Qfficer Standards and 

Education (“TCLEOSF or the “commission”), your predecessor in office requested that 

we resolve an apparent conflict between sections 415.053 and 415060(a) of the 

Government Code. These sections provide as follows: 

3 415.053. Licensing of Certain Law Enforcement Ofkers 

Elect&J Under Texas Constitution or Statute 

An officer, including a sheriff, elected under the Texas 

Constitution or a statute or appointed to fill a vacancy in an elective 

office must be licensed by the commission not later than two years 

after the date that the officer takes office. The commission shah 

establish requirements for licensing and for revocation, suspension, 

cancellation, or denial of a license of such an officer. It is 

incompetency and a ground for removal from office under Title 100, 

Revised Statutes, or any other removal statute if an officer to whom 

this section applies does not obtain the license by the required date or 

does not remain licensed.* Footnote omitted; footnote added. J 

‘This o&e detcnnincd in Attorney GwenI Opinion DM-322 that Gwantwotcndescction 

415.053 does not unwnstitutiooally prescribe a qcsiitication for boldiqg the &ice of wnstab~e. Attorney 

Gened Opinion DM-322 (1995) at 2. We stated: 

Whm the amstitoticm prescribes the qnaliticatiens for holding B pakular 

0fliu,tkkgislahuelacksthcpwrtochangeoraddtothwequalllns 

oaks the wnstitotion provides that power. Lma v. Blantoa. 478 S.W.2d 76.18 

(Tex. 1972); Dickson v. Strickland, 265 S.W. 1012, 1015-16 (Tcx 1924). 

Article V, section 18(a) of the Texas Cmstilutkm pmvidcs for the ofike of 

amtable. See afso Local Gov’t code ch. 86, 35 DAVY B. BROOKS, CiXNlY 

p. 1710 
Mr. D. C. “Jim”Dozier - Page 2 (DM-323) 

5 415.060. Revocation; Probation; Suspension 

(a) The commission may establish procedures for the 

revocation of any license that it grants under this chapter, except a 

license of an officer elected under the Texas Constitution. 

Your predecessor asked whether, pursuant to these two statutes, TCLEOSE may revoke 

the license of an officer elected under the Texas Constitution, including both a sheriff and 

a constable. 

Chapter 415 of the Government Code provides for TCLEOSE, it creates the 

commission, see Gov’t Code 59 415.001(l), .002, .004, and establishes requirements for 

the education, licensing, and appointment of law-enforcement ‘officers generally. In 

general, chapter 415 prohibits a person from employing as a law-enforcement officer any 

individual who lacks the appropriate license from TCLEOSE. See id. 4 4 15 .OS l(a). But 

see id. §§ 415.054(a), .055(a). Chapter 415 also requires all law-enforcement officers 

elected under the constitution or a statute or appointed to till a vacancy in an elective 

office to obtain a license from the commission within two years after the date that the 

officertakes office.2 Id. 5 415.053. 

(footnote continued) 

ANO SPECIAL DETRICT LAW 4 20.2, at 674 (Texas Pmcticc 1989); 59 T?x. JUR 

3DPOlice. Sheriffs, ond Constables g 26, at 44 (1988). TIE o~&lution does aol 

dietate qnalifxations for holding the oilice of constsble, and the legislamre is 

therefore ftce to establish such qoaliications by sumte. See Luno, 478 S.W.Zd at 

78; Dickson, 276 SW. at 1015-16. MO-, WC do not interpm section 

415.053 of the Government Code to spec@ a qualiication for o&cc; rather, 

section 415.053 specifies a qualikation for remaining in office once an 

individual has ken elected or appointed to the office. Accordingly, section 

415.053 of the Government Cc& does not conlravene the wl&timtion by 

onconstimrionally adding to or changing the qualificatioos for holding the office 

of constable. 

Id. (footnote omilted). 

In regard to whether section 415.053 unconstimtionally prescribes a qualiication for holding the 

dice of sheritf we note that article V, section 23 of the Texas Constitution explicitly empowers the 

legislahue to prescribe such qualhicatio~. Fulhennore, as we indicated in Attorney General Opinion 

DM-322, section 415.053 does not specify a qualification for oII& “rather, section 415.053 specifies a 

qualiication for remaining in office once an individual has been elected or appointed to the o&c.” Id. 

2Constables a~ elected pursuant to article V, section 18 of the Texas constitution. SheriBs are 

e&ted pursuant to article V, section 23 of the Texas ConsIimtion. Throughout this opinion, we will refer 

to a law-enforcement officer elected under the constimtion or statute or appointed lo fill a vacancy in an 

elective office as a wnstitutional officer; we will refer to a law-enforcemcn~ officer who is appointed and 

who does sot fill an elective office as a noncomtimtional officer. 

p. 1711 
Mr. D. C. ‘Xi” Dozier - Page 3 (DM-323) 

Section 3 11.026 of the Government Code states that, when interpreting sections of 

the codes, general and special provisions should be construed to effectuate both, if 

possible. Section 3 11.026 tkrther provides that, if the con&t between the two is 

irreconcilable, the special provision should be construed as an exception to the general 

provision unless the legislature enacted the general provision after it had enacted the 

special provision. We do not believe the two provisions at issue here are irreconcilable; 

rather, we believe that they can be harmonized. 

The legislature enacted the statutory predecessor to chapter 415 of the Government Code, V.T.C.S. article 4413(29aa), in 1965. See Acts 1965, 59th Leg., ch. 546, at 

1158.’ Prior to 1985, article 4413(29aa) required TCLBOSE to “[e]stabk.h procedures 

for the revocation of licenses issued to a peace officer under the provisions of this 

Acx”~ In 1985 the legislature amended article 4413(29aa), section 2(a)(l8) to except 

constitutional law-enforcement officers from TCLBOSE procedures for the revocation of 

a license issued to a peace officer. Acts 1985, 69th Leg., ch. 907, § 1, at 3040. At the 

same time, however, the legislature enacted a new provision, section 2(a)(21), requiring 

TCLEOSE to “[e]stablish requirements for certification of and procedures for revocation 

of licenses of a law enforcement officer elected under the Texas Constitution, with the 

exception of sheri&, after September 1, 1985.” Id. 

In 1993, by the passage of Senate Big 339, the legislature deleted from the 

cod&d successor to section 2(a)(21), section 415.053 of the Gov emment code, the 

exception for sheriffs. The deletion became e&ctive in November 1993 following voter 

approval of an amendment to article V, section 23 of the Texas Constitution.J The 

sOriginally, the legislature created TCLECXE for the plrposc of, among other things, suggesting 

minimum standa& for law-enforcement “office& snd procedures for the certification of “lawcnfonrmcnt 05icm.” AN 1%5,59th Leg., ch. 546,s 2. The 1%5 act did not define “ofliccr” or “lawenforcement 05ccr,* although it sxggested in section 2 that ofhan were iadividuals appointed to lawenforcement positioas. See id. The legislature did not explicitly defme -peaa officer” until 1975, when 

it added section 6(h) to article 4413(29aa). See Acts 1975,64th Leg., ch. 547, 8 1; info nok 4. 

‘At Thai time, section 6(h) of V.T.C.S. article 4413(29aa) defined “peace officer” in pertinent 

part N “only a pcrmt so designated by Article 2.12, Code of Criminal Procedure, 1%5.” See Acts 1981, 

67th Log., eh. 399,s 3. In 1985 the kgislatwe brwdewdchede6nitionof”peauoflleer”temeanin 

pertinent part “any persen employed or appointed as a peace officer under law, including but not limited 

m a person so designated by Article 2.12, Code of Criminal procedure .” See Acts 1985,69th Leg., 

ch. 907, 8 2, at 3041. Since its enactmen tin 1%5. article 2.12 of the Code of Criminal procedure has 

included in its list of peace officers sheriffs and wnstables. 

%I 1987 the legislature MNUIZ&ZI~~V~~ &cd article 4413(29aa), V.T.C.S., as chapter 415 of 

the Govenmmt Code. See Acts 1987, 70th Leg., ch. 147, 8 1, 384-93, 8 7, at 534. Section 2(a)(18) of 

article 4413(29aa) became patl of saXion 415.060; section Z(a)(Zl) became part of section 415.053. TIC 

legislature mended section 415.053 in 1993 by adding “including a sheriff.” See Acts 1993,73d Leg., 

ch. 985, 8 2 (S.B. 339). 

p. 1712 
Mr. D. C. ‘Jiin Dozier .- Page 4 (DM-323) 

purpose of Senate Bill 339 was to subject “a sheriff to the ‘same qualifications and 

licensing requirements as other officers covered under Sec. 415.053, Government Code, 

i.e.[,] constables.” House Comm. on County Af%irs, Bill Analysis, S.B. 339, 73d Leg. 

(1993). See generally House Research Organization, Bill Analysis, S.B. 339, 73d Leg. 

(1993). 

Upon examining the history of the relevant statutory provisions, we believe that 

sections 415.053 and 415.060 can be harmon&& they do not contlict irreconcilably. The 

1985 ame&ments to article 4413(29aa), section 2(a)(l8) and (21) indicate that the 

legislature intended to split the commission’s authority to revoke licenses into two 

sections, one that authorized the commission to revoke the licenses of nonconstitutional 

law-enforcement officers and one that authorized the commission to revoke the licenses of 

constitutional law-enforcement officers. Fii, TCLEOSE was to establish procedures by 

which it may revoke the license of a nonconstitutional law-enforcement officer. This 

mandate now is found in section 415.060(a) of the Government Code. Section 

415.060(b) articulates the reasons for which the commission may revoke a 

nonconstitutional officer’s license: violation of chapter 415 or of a TCLEOSE rule. See 

ufso Gov’t Code 3 415.058(a) (rquiring TCLJZOSE to revoke officer’s license if officer 

convicted of felony). 

Second, TCLBOSE was to articulate requirements for the revocation of a license 

belonging to a law-enforcement officer elected under the constitution, except a sheriff. 

This requirement now is found in section 415.053 of the Government Code and, as 

amended in 1993, no longer excepts sheriffs. Unlike section 415.060, section 415.053 

does not articulate reasons for the revocation of a license. But see id. (requiring 

TCLEOSE to revoke officer’s license if 05cer convicted of felony). The fact that the 

legislature expressly excepted from section 415.060 “a license of an officer elected under 

the Texas Constitution” does not indicate the legislature intended constitutional lawenforcement officers’ licenses to be irrevocable; rather, it indicates that the legislature 

intended such licenses to be revoked pursuant to section 4 15.053. 

Moreover, to the extent of any conflict between the two provisions, section 

415.053, which pertains specifically ‘to the licenses of constitutional law-enforcement 

officers, prevails over section 415.060, which applies generally to any license that 

TCLBOSE grants under chapter 415. See id. $311.026; Attorney General Opinion 

(foomotc continued) 

Senate Bill 339 was the mabling legiblstion for the wanitutional amwdmeat to article V, 

section 23 of the constitution. Legislative Council, Aoalyais of Pmpceed ChMiNtiOti Amcndmcnts at 

25. TbeamatiNti~nal anmdmem modified article V, se&on 23 expkitly to authorize the legislature to 

preacrihc the qualifications of she&k Id. Prior to its 1993 mendnm~ariic~eV,scctiw23 requiredthe 

legidaturc to inwxibe the “pcrquisltca, fees of office and duties” of sheriffs. The L.egislative council 

statal that, under the prior version of article V, section 23, “[iIt is not qlear whether the legislature may 

also prescrii the quaMIcations of sheriffs without express wnctihltional authorization.” Id. 

p. 1713 
Mr. D. C. Vii” Dozier - Page 5 (DM-323) 

JM-1220 (1990) at 13. We therefore conclude that TCLEOSE is required, pursuant to 

section 415.053 of the Government Code, to establish requirements for revocation of 

licenses of law-enforcement officers elected under the constitution, including both a sheriff 

and a constable.6 

In his second question, your predecessor asked whether TCLBOSE’s authority to 

revoke the license of a constable and a sheriff is limited to a constable who takes office on 

or after September 1, 1985, and a sheriff who takes 05ce on or atIer January 1, 1994.’ 

This question requires us to consider section 415.015(c) of the Government Code, which 

provides as follows: 

This chapter does not at&t a constable or other officer or 

county jailer elected under the Texas Constitution before September 

1, 1985, and does not affect a person who held the office of sheriff 

before January 1,1994. 

The legislature also amended this subsection in 1993 by the passage of Senate Bill 339, the 

same bill that amended section 415.053. See Acts 1993,73d Leg., ch. 985, 5 1, at 4264, 

4264. Prior to the 1993 amendment, section 415.015 excepted all sheriffs from chapter 

415. 

The plain language of section 415.015(c) limits the applicability of chapter 415 to 

an individual who was elected to the office of constable on or after September 1, 1985, 

and an individual who held the 05~. of sheriff on or after January 1, 1994. Consequently, 

TCLBOSE may establish requirements for the revocation of a license belonging to a 

constable elected on or after September 1, 1985, or a sheriff who took office on or after 

January 1, 1994.’ 

6TCLEOSE has promulgated a rate, title 37 of the Texas Admiaisuative code, section 211.82, 

that provides for the issuance of licenses 10 jailers, reserve lawcnforccment ofliceq and peace ol%icers. 

Sub6cction (i) of section 211.82 tqdres the commission to issue a permanent peace officer license to any 

law-enfomem~ officer elected or appointed under the mnsdmtion afIer Sep&mber 1.1985, who meeL5 

the minimmn stdards for kensing. Subsection (i) lit&et provides that such license is subject to 

mvocation a6 any peace officer licen6c that the aunmision has issued to a aOncXmtiNti0ns1 lawenforcement officer. Subsection (i) is exp&y inapplicable to (I) a sheriff or (2) a constable or any other 

COnstitutionsl kW-COf0I’rXm.N 05ecr who first assomed o5ke prior to September 1, 1985. Given the 

1993 amendments to chapter 415 of the Gove-t code, section 211.82 is invalid to the extent that it 

exetnpos sheriffs who look office on or after January 1. 1994. See Commissioner of Ins v. Allstate Ins. 

Co., 579 S.W.M 553, 557 (Rx. Civ. App.-Austin 1979, writ ret’d nxe.) (citing Citizens Nat1 Bank Y. 

Colvcrt, 527 S.W.Zd 175 (Tex. 1975)); see u/so it@ bxt accompning note 7 (determining that 

TCLEOSE may establish requirements for the revocation of a peace offioa license belonging to a 

castable elected on or after Scpte~bex 1.1985, or a s-who tc& office on or afIer Janoaty 1, 1994). 

‘Under title 37 of the Texas Admini%rative Code, seclion 211.82(i), a mnstable need not obtain a 

pcnnancnt license, nor would such a license k subject to revocation as,any other license if the constable 

ylrst a.wuncd 05ce before September 1.1985, even if reelected afler that date unless these was a break in 

office and that officer was the0 reekted aflet that date to that or another office as a con6tiNtiond peaea 

p. 1714 
Mr. D. C. “Jii” Dozier - Page 6 (DM-323) 

SUMMARY 

Sections 415.053 and 415.060 of the Government Code do not 

conflict irreconcilably. Rather, section 415.060 requires the Texas 

Commission on Law Enforcement Officer Standards and Education 

to establish procedures by which it may revoke the license of a 

nonconstitutional law-enforcement officer who has violated the 

statute or a rule promulgated pursuant to a statute. On the other 

hand, section 415.053 requires TCLEOSE to establish rquirements 

for the revocation of a license belonging to a law-enforcement officer 

elected under the constitution, including a sherhTand a constable. 

TCLEOSE must establish rquirements for the revocation of a 

peace officer license belonging to a constable or sheriff, but the 

requirements may not apply to a constable who was elected prior to 

September 1, 1985, or to a sheriff who took office prior to 

January 1,1994. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHJRLEY 

Chair, Opiion Committee 

Prepared by Kymberly K. Oltrogge 

Assistant Attorney General 

(footnote continued) 

officer.” See 01~0 Attorney General Opinions JM-1149 (1990) (concluding that constable whose tenure of 

oflice eased on Decanber 31. 1984, and did not resume until January 1, 1989, must, pursuant 10 37 

T.A.C. seaion 211.82, meet TCLEOSE’s requirements for kensing); DM-75 (1992) (concluding that 

elimination of precinct through tsdisbicting and incumbent mnstabte’s election as awIable for new 

prechm does no1 result in “break of office” for pwposes of 37 T.A:C. section 211.82(i) whue new 

precinct differs from old only in its number and enlarged territory). 

p. 1715