+- OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

June 28,2002

The Honorable David T. Garcia Brooks County Attorney 117 East Miller Street FalfInrias, Texas 78355 Opinion No. JC-0522
Re: Whether aconstable who has not been issued apermanent peace officer license under chapter 1701 of the Occupations Code is apeace officer for purposes of article 2.12(2) of the Code of Criminal Procedure (RQ-0501 -JC)
Dear Mr. Garcia:
You ask whether several constables in your county who have not been issued permanent peace officer licenses from the Texas Commission on Law Enforcement Officer Standards and Education (“TCLEOSE”) under chapter 1701 of the Occupations Code are peace officers for purposes of article 2.12(2) ofthe Code of Criminal Procedure.’ We conclude that aconstable need not have apermanent peace officer license in order tobe apeace officer under article 2.12(2).

. As background to your request, you explain that three ofthe four constables in your county failed to obtain peace officer licenses from TCLEOSE within 270 days ofbeing elected to office as required by section 86.0021 ofthe Local Government Code, which provides:

(a) A person is not eligible to serve as constable unless the person: (1) has ahigh school diploma or ahigh school equivalency certificate; and (2) is eligible to be licensed under Sections 1701.309 and 1701.3 12, Occupations Code. (b) On or before the 270th day after the date a constable takes office, the constable shallprovide, to the commissioners court ofthe county inwhich the constable serves, evidence that the constable has been issued apermanent peace officer license under Chapter I701,

‘Letter from Honorable David T. Garcia, Brooks County Attorney, toHonorable John Cornyn, Texas Attorney General (Jan. 16,2002) (on file with Opinion Committee) [hereinafter Request Letter].The Honorable David T. Garcia - Page 2 (JC-0522)

Occupations Code. A constable who fails to provide evidence of licensure under this subsection orwho fails to maintain apermanent license while serving in office forfeits the office and is subject to removal in a quo warrant0 proceeding under Chapter 66, Civil Practice and Remedies Code. (c) The license requirement of Subsection (b) supersedes the license requirement of Section 1701.302, Occupations Code. TEX.Lot. GOV’TCODEANN.886.0021 (Vernon Supp. 2002) (emphasis added); see also TEX.OCC. CODE ANN. $5 1701.301-.316 (Vernon 2002) (TCLEOSE license requirements); TEX.CONST. art. V, 5 18(g) (“The Legislature by general law may prescribe the qualifications of constables.“); Schwenke v.State, 960 S.W.2d 227,232 (Tex. App-Corpus Christi 1997, pet. denied) (because the Texas Constitution prescribes no qualifications for the office ofconstable, the legislature is free to prescribe such qualifications).
Pursuant to subsection (b) ofthis provision, your office filed aquo warrant0 proceeding in district court toremove the constables from office. SeeRequest Letter, supra note 1,at 1. You state that the three constables thereafter resigned from office and the commissioners court appointed the three constables to fill the vacancies in their former offices. See id. We assume that the constables were not removed from office by the district court. As aresult oftheir resignation and appointment to office by the commissioners court, each ofthe three constables now has 270 days from the date of appointment to obtain apeace officer’s license. See id.;see also Tex. Att’y Gen. Op. No. DM-322 (1995) at 4 (concluding that appointed constable who previously resigned from office could take advantage of grace period for obtaining license “even if the appointee previously has served as constable without obtaining from the commission the required license”).
You ask whether aconstable who has not yet obtained apermanent peace officer license as required by section 86.002 1ofthe Local Government Code is apeace officer under article 2.12(2) ofthe Code of Criminal Procedure, which lists the various kinds oflaw enforcement personnel who qualify aspeace officers. See TEX.CODE CRIM. PROC. ANN.art. 2.12 (Vernon Supp. 2002). This is important because, under both the Code of Criminal Procedure and the Penal Code, special law enforcement authority, such asthe power to make certain arrests orto carry aweapon, is vested in “peace officers” as that term is defined in article 2.12. See, e.g., id. arts. 14.01(b) (Vernon 1977); 14.03(a)-(d) (Vemon Supp. 2002) (authority ofpeace officers to make warrantless arrests); 15.06 (Vernon Supp. 2002) (authority to serve arrest warrants); TEX. PEN. CODE ANN.$5 1.07(36) (Vernon 1994) (For purposes of the Penal Code, “‘[pleace officer’ means aperson elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, Section 51.212 or 51.214,Education Code, orother law.“); 46.15(a) (Vernon Supp. 2002) (“Sections 46.02 and 46.03 [weapons offenses] do not apply to: (1) peace officers and neither section prohibits apeace officer from carrying a weapon in this state, regardless of whether the officer is engaged in the actual discharge ofthe officer’s duties while carrying the weapon.“) (emphasis added). Weconclude thatThe Honorable David T. Garcia - Page 3 (JC-0522)

a constable who has not obtained a permanent peace officer license under chapter 1701 of the Occupations Code is apeace officer for purposes of article 2.12(2).
A constable who has not obtained apermanent peace officer license under chapter 1701 of the Occupations Code is apeace officer forpurposes of article 2.12 because the language in article 2.12(2) regarding licensing under chapter 1701 applies only to reserve deputy constables. The license requirement does not apply to constables and deputy constables. Article 2.12 provides in pertinent part: The following are peace officers:

(2) constables, deputy constables, and those reserve deputy constables who hold apermanent peace officer license issued under Chapter I701, Occupations Code.

TEX.CODECFUM.

PROC. ANN. art. 2.12(2) (Vemon Supp. 2002) (emphasis added). The Code Construction Act requires us to construe the “words and phrases” of article 2.12 “in context and

.

. .according to the rules of grammar and common usage.” TEX.GOV’TCODEANN.5 311.011(a) (Vernon 1998). In article 2.12, the limiting word “those” applies only toreserve deputy constables, thus limiting the application ofthe qualifying phrase “who hold apermanent peace officer license issued under Chapter 1701, Occupations Code” to reserve deputy constables and precluding application of the phrase to constables and deputy constables. This construction of article 2.12(2) is also supported by its legislative history. See id. 5 311.023(l)-(3), (5) (in construing statute, court may consider object sought to be attained, circumstances under which statute was enacted, legislative history, and consequences ofaparticular construction). Prior to the 1999 legislative session, article 2.12(2) listed only constables and deputy constables and included nothing about licensing as apeace officer, see Act ofMay 22, 1997,75th Leg., R.S., ch. 1423’8 4.01,1999 Tex. Gen. Laws 5329’5334 (effective Sept. 1,1997), even though the law already required that aconstable obtain apeace officer license, see Act ofMay 28,1993,73d Leg., R.S., ch. 985, 52, 1993 Tex. Gen. Laws 4261 (amending Government Code, section 415.053 to provide that: “An officer, including a sheriff, elected under the Texas Constitution or a statute or appointed to fill avacancy in anelective office must be licensed by the commission not later than two years after the date that the officer takes office.

... Itisincompetency and aground for removal from office under Title 100, Revised Statutes, or any other removal statute ifan officer towhom this section applies does not obtain the license by the required date or does not remain licensed.“).
In 1999, the legislature enacted House Bill 957, which was intended to include “reserve police officers, reserve deputies andreserve deputy constables aspeace officers,” to enable them “toThe Honorable David T. Garcia - Page 4 (JC-0522)

assist on-duty officers in arrests” and “to carry their weapons while off-duty without being subject to prosecution for unlawfully carrying aweapon.” SENATERESEARCHCTR.,BILLANALYSIS, Tex. H.B. 957 (Apr. 15, 1999). With respect to reserve deputy constables, House Bill 957 amended article 2.12(2) asfollows: “constables, [and] deputy constables, and those reserve deputy constables who hold apermanent peace officer license issued under Chapter 415, Government Code [now Chapter 1701, Occupations Code]

.” Act of May 5, 1999, 76th Leg., R.S., ch. 90, 8 1, 1999 Tex. Gen. Laws 473 (enacting House Bill 957). The bill also added the following language to section 86.012(b) of the Local Government Code, which provides for the appointment of reserve deputy constables: The constable may authorize a reserve deputy constable who is a

peace officer as described by Article 2.12, Code of Criminal Procedure, to carry a weapon or act as apeace officer at all times, regardless ofwhether the reserve deputy constable is engaged in the actual discharge of official duties, or may limit the authority of the reserve deputy constable to carry aweapon or act as apeace officer to only those times during which the reserve deputy constable is engaged in the actual discharge of official duties. A reserve deputy constable who is not apeace officer as described by Article 2.12, Code of Criminal Procedure, may act as apeace officer only during the actual discharge of official duties. A reserve deputy constable, regardless ofwhether the reserve deputy constable is apeace officer as described by Article 2.12, Code of Criminal Procedure, is not: (1) eligible for participation in any program provided by the county that is normally considered a financial benefit of full-time employment orfor any pension fund created by statute forthe benefit of full-time paid peace officers; or (2) exempt from Chapter 1702, Occupations Code. Id. 53’1999 Tex. Gen. Laws at475 (codified atTEX.Lot. GOV'TCODE ANN.886.012(b) (Vernon 1999)). Clearly, House Bill 957 was intended to address the status of reserve law enforcement officers, such as reserve deputy constables, and was not intended to affect the status of constables. The bill was not intended to require a constable to obtain apeace officer license in order to be a peace officer for purposes of article 2.12(2).
In sum, aconstable who has not yet obtained apermanent peace officer license asrequired by section 86.0021 ofthe Local Government Code is apeace officer for purposes of article 2.12(2) of the Code of Criminal Procedure. Given this conclusion, we do not reach your remaining questions, which arepremised on the conclusion that aconstable who has not obtained apermanent peace officer license isnot apeace officer under article 2.12(2).. We do note, however, that we have located two statutes that apply only to apeace officer who has obtained apeace officer license.The Honorable David T. Garcia - Page 5 (JC-0522)

Article 14.03(g) ofthe Code of Criminal Procedure authorizes only certain types ofpeace officers, including constables, “who [are] licensed under Chapter 415, Government Code” (now Occupations Code, chapter 1701)’ to make warrantless arrests outside theirjurisdictions. See TEX.CODE GRIM. PROC. ANN.art. 14.03(g) (Vernon Supp. 2002). The authority provided by article 14.03(g) applies only to a licensed peace officer and would not apply to an unlicensed constable. Similarly, the concealed-handgun lawestablishes special application requirements forconcealed-handgun licenses for active peace officers: “A person who is licensed as apeace officer under Chapter 415 [now Occupations Code, chapter 17011and isemployed full-time asapeace officer by alaw enforcement agency may apply for a license under this subchapter.” TEX.GOV’TCODE ANN. 8 411.1991(a) (Vernon Supp. 2002) (emphasis added). A constable who isnot licensed under chapter 1701 ofthe Occupations Code would not be eligible to apply for a concealed-handgun license under that provision.The Honorable David T. Garcia - Page 6 (JC-0522)

SUMMARY
A constable who has not yet obtained a permanent peace officer license as required by section 86.0021 of the Local Government Code is apeace officer forpurposes ofarticle 2.12(2) of the Code of Criminal Procedure.

Attorney General ofTexas

HOWARD G. BALDWIN, JR. First Assistant Attorney General
NANCY FULLER Deputy Attorney General - General Counsel SUSAN DENMON GUSKY Chair, Opinion Committee Mary R. Crouter Assistant Attorney General, Opinion Committee