### TEE ATTORNEY GENERAL OF TEXAS
March 21, 1990

Honorable Ashley Smith Chairman Opinion NO. JM-1149 Financial Institutions Committee Re: Certification reguireTexas House ofRepresentatives ments foraconstable who P. 0: BOX 2910 has previously held the Austin, Texas 78769 office (RQ-1889) Dear Representative Smith:
you ask whether a person who held the office of constable fromJanuary 1, 1981, through December 31, 1984, and thereafter fromJanuary 1, 1989, topresent is required tomeet the requirements for licensing or certification by the Commissjon on LawEnforcement Officer Standards and Education under chapter 415 of theGovernment Code.

- Section 415.010 of theGovernment. Code provides that

the Commission on LawEnforcement Officer Standards and Education may:

(1) adopt rules for the administration of this chapter . . . . (10) establish minimum standards relating to competence and reliability, including educational, training, physical, mental, and moral standards, for licensing asan officer, county jailer, orpublic security officer. Section 415.015 of the Government Code provides in pertinent part:

(c) This chanter does not affect a cn o- Stable or other officer or countv iailer #

+ anddoes not affect a

. (Emphasisadded.) The commission promulgated rule 211.82, 12Tex. Reg. 4851 (1987),providing:

p. 6066Honorable Ashley Smith -Page 2 (JM-1149)

,

(i) The commission shall issue a permanent peace officer license to any peace officer, elected orappointed under the Texas Constitution after September 1, 1985, ifthat officer meets all theminimum standards for peace officer licensing, including the training and testing requirements. Such license shall be subject to revocat.ionas any other peace officer license issued by the commission. u subsection su not annly ti: (1) a sheriff: or

(2) a constu or any other constitutional peace officer Who first assumed office before Seotember 1. 1985. even if 

### re-ele&sd after that date 

### unless there J then re-elected after that date to that or wt eroff&e **as** a constitutional veace &. (Emphasisadded.) The courts will giveweight to anagency#s interpretation ofa statute, but will not respect an agency's .interpretation contrary to the clearmeaning ofan unambiguous statute. 2Tex. Jur. 3d,Administrative Law 5 7. We donot believe that rule 211.82 iscontrary to the meaning of section 415.015. The exemption to training and educational requirements afforded aconstable elected before September 1, 1985, appears tobe aprovision commonly referred to as the "grandfather" clause. We find the interpretation given section 415.015 by the commission in rule 211.82 to be consistent with the construction the courts have given the '0grandfather00clause. The Supreme Court of Arizona inState Pd. ofDisuensina **ODtiCianS** v. c a, 380 P.2d 784 (1963), inaddressing the meaning of the "grandfatherw clause stated:

'Grandfather' clauses are generally found where occupations not formerly regulated by statute are brought under legislative control. They permit those who have been in continuous practice intheparticular occupation for a prescribed period immediately preceding the effective date of the act to receive a license.

p. 6067Honorable Ashley Smith -Page 3 (JR-1149)

P Under your scenario therewas a break in the constable's service fromDecember 31, 1984, toJanuary 1, 1989. Therefore, the constable had notbeen incontinuous service inthat office immediately preceding September 1, 1985. We conclude that the constable inquestion does not comewithin the ex.ceptionto the officer licensin requirements provided in subsection (c)of section 415.015.9

A constable whose tenure of office ceased onDecember 31, 1984, and did not resume until January 1, 1989, is required to meet the requirements for licensing by the Commission onLaw Enforcement Officer Standards and Education.

JIM MATTOX Attorney General ofTexas WARYKELLER. First Assistant Attorney General JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General RENEA HICKS Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by TomG. Davis Assistant Attorney General

1. Section 415.053 of the Government Code allows an officer elected under the Texas Constitution two years after the officer takes office to complete the commission's P licensing requirements.

P. 6068