DAN MORALES

ATToRNEY GENERAL 

# QWiceof 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&JUnder 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 detcnnincdin Attorney GwenI Opinion DM-322 that Gwantwotcndescction **415.053** doesnot unwnstitutiooally

prescribe a qcsiiticationfor boldiqgthe &ice ofwnstab~e.Attorney Gened Opinion

DM-322 (1995) at2. We stated:
Whm the amstitoticmprescribes the qnaliticatiensfor holding B pakular 0fliu,tkkgislahuelacksthcpwrtochangeoraddtothwequalllns oaks the wnstitotion provides thatpower. Lma v. Blantoa. 478 S.W.2d76.18 **(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 (TexasPmcticc 1989); 59 T?x. JUR 3DPOlice.

Sheriffs, ond Constables g 26, at 44 (1988). TIEo~&lution does aol dietateqnalifxations for holding the oilice of constsble, and the legislamreis therefore ftce to establishsuchqoaliicationsby 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 appointedto the office. Accordingly,section 415.053 of the GovernmentCc& does not conlravene the wl&timtion by onconstimrionally

addingto or changingthe qualificatioos forholding the office of constable.
Id. (footnote

omilted).
In regard to whethersection415.053 unconstimtionally prescribes

a qualiication for holding the dice of sheritf we note that articleV, section 23 of the Texas Constitution explicitly empowersthe legislahue to prescribe

such qualhicatio~. Fulhennore, as we indicatedin Attorney GeneralOpinion DM-322, section 415.053 does not specifya qualification for oII& “rather,

section 415.053 specifiesa qualiication forremaining in officeonce an individual hasbeenelected

orappointed

to the o&c.” Id.
2Constables

a~ electedpursuant

to articleV, section 18 of the Texas constitution. SheriBsare e&ted pursuant

to article V, section23 of the Texas ConsIimtion.Throughout this opinion, we will refer to a law-enforcement

officerelectedunderthe constimtion or statute or appointed

lo fill a vacancyin an electiveofficeas a wnstitutional officer; wewill refer

to a law-enforcemcn~

officerwho is appointed

and whodoessot fill an electiveofficeas a noncomtimtional officer.

p. 1711Mr. 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

forthe plrposc of, amongother things, suggesting minimum standa& for law-enforcement “office& snd proceduresfor the certificationof “lawcnfonrmcnt 05icm.” AN 1%5,59th Leg., ch. 546,s 2. The 1%5act did notdefine“ofliccr” or “lawenforcement

05ccr,* althoughit sxggestedin section2 thatofhan were iadividualsappointed to lawenforcement

**positioas.** See id. The legislature did not explicitlydefme-peaa officer” until 1975, when it addedsection6(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. article4413(29aa)defined“peaceofficer”in pertinent partN “onlya pcrmt so designated by Article

2.12, Codeof Criminal

Procedure,

1%5.” See Acts 1981, 67th Log., eh. 399,s 3. In 1985 the kgislatwe brwdewdchede6nitionof”peauoflleer”temeanin pertinentpart “anypersenemployed or appointed

as a peaceofficer

underlaw, includingbut not limited m a personso designated by Article2.12, Codeof Criminal procedure .” See Acts 1985,69th Leg., ch. 907, 8 2, at 3041. Since its enactmen t in 1%5. article

2.12 of the Codeof Criminal procedure

has includedin its list ofpeaceofficers sheriffs andwnstables.
%I 1987the 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. Section2(a)(18)of article4413(29aa)

became patl of saXion415.060;sectionZ(a)(Zl) became partof section415.053. TIC legislature

mended section415.053 in 1993by adding“includinga sheriff.” See Acts 1993,73d Leg., ch. 985, 8 2 (S.B. 339).

p. 1712Mr. 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 legiblstionfor 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 legidaturcto inwxibe the “pcrquisltca, fees of office and duties”of sheriffs. The L.egislative council statal that,underthe priorversionof articleV, section23, “[iItis not qlear whetherthe legislature

may also prescrii the quaMIcations of sheriffswithoutexpress **wnctihltional** authorization.” Id.

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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 Admiaisuativecode, section211.82, thatprovides

for the issuanceof licenses 10 jailers,reserve

lawcnforccmentofliceq and peaceol%icers. Sub6cction

(i) of section211.82 tqdres the commission to issue a permanent

peaceofficerlicense to any law-enfomem~ officerelectedor appointed underthe mnsdmtionafIerSep&mber 1.1985, who meeL5 the minimmn stdards for kensing. Subsection(i) lit&et providesthat such license is subjectto 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 assomedo5ke prior to September 1, 1985. Given the 1993 amendments

to chapter

415 of the Gove-t code, section211.82 is invalidto the extentthat 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 TCLEOSEmay establish requirements for the revocationof a peace offioa license belonging to a castable elected

on orafterScpte~bex 1.1985, ora s-who tc& officeon or afIer Janoaty1, 1994).

‘Undertitle37 ofthe TexasAdmini%rative Code,seclion211.82(i),a mnstable neednotobtaina pcnnancntlicense, norwould such a licensek subject to revocation

as,any otherlicense if the constable ylrst a.wuncd05ce before September

1.1985, evenif reelected

afler thatdateunless thesewas a break in office and thatofficer was the0 reekted aflet that dateto that or anotheroffice as a con6tiNtiond peaea

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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 OpinionsJM-1149(1990) (concluding thatconstable

whose tenure

of oflice eased on Decanber 31. 1984, and did not resumeuntil January 1, 1989, must, pursuant10 37 T.A.C. seaion 211.82, meet TCLEOSE’s requirements

for kensing); DM-75 (1992) (concluding that elimination of precinctthrough tsdisbicting and incumbentmnstabte’s election as awIable for new prechm does no1 result in “breakof office” for pwposes of 37 T.A:C. section 211.82(i) whue new precinct differsfromold only in its number and enlarged

territory).

p. 1715