# The Attorney General of Texas

December 22, 1982 MARK WHITE Attorney General

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An Equal Opportunity/ Affirmative Action Employer Mr. Fred Toler. ExecutiveDirector Opinion No. ~~-527 Texas Commissionon Law Enforcement Officer Standardsand Education 220-E Twin TowersOffice Building 1106ClaytonLane Austin, Texas 78723 Re: Whether article 4413 (29aa). V.T.C.S., applies to elected citymarshals

DearMr. Toler:
Attorney General opinion MW-262 (1980) concerned the applicability of article 4413(29aa) certification requirements to an individualappointedby themayor to serve out the term of the elected citymarshal. It concluded thatan individualmust have peace officer certification under article 4413(29aa) to legally serve as city marshal. You request a clarificationof this opinion and ask whether these same requirementsapply to an individualwho holds the office of city marshal by popular election rather than by appointment. We conclude that theydo.

The citymarshal is the ex-officio chief of police, whose duties consistof executingallwrits and process issued from the corporation court, executing warrants, preserving the p&WX and arresting violators of the public peace. V.T.C.S. art. 999. In cities operating under the commission form of government, the couaaissioners
are empowered to appoint a police force and "such other offices as they may deem necessary." V.T.C.S. art. 1161. However, unless its populationnumbers less than 5,000, general law citiesmust provide a city marshal, and the citymarshal may be either appointed or elected under article 978, V.T.C.S., as providedby city ordinance. V.T.C.S. art. 977; Attorney General Opinion C-661 (1966). See also Miller v. City of Alamo Heights, 282 S.W.2d 264 (Tex. Civ. App. - San Antonio 1955, writ ref'd n.r.e.). Under this statutory scheme, a popularly elected marshal has the identical duties and responsibilities as a marshal appointedby the city council.

In 1965, the legislature, in an attempt to upgrade the responsibleeffectivenessof law enforcementpersonnel,passed article 4413(29aa), V.T.C.S., creating the Commission on Law Enforcement Officer Standards and Education [hereinafter the commission]. The present form of this statute authorizes the commission to establish minimum standards for the certification of "peace officers," as

p. 1909Mr. Fred Toler - Page 2 (MW-527)

desienatedbv article 2.12 of the Code of Criminal Procedure. and to issue licenses to those qualifiedunder this act. V.T.C.S. (29aa),981, Z(b), (c). It furtherprovides that:

Sec. 6.

...(b) A person who has not satisfactorily completed preparatory training in law enforcement... is eligible to be appointedas peace &is.... officer... only on a probationary

(c) No person who does not have a license issued by the Commission shall be appointed as a peace officer....

These provisions are qualified by the specific exemption section 6(f):

Nothingherein shallbe construed...to affect any sheriff, constable or other la" enforcement officer elected under the provisions of the Constitution of the State of Texas. (Emphasis added).

InAttorney General Opini~on MW-111 (1979), this office

.,_. ._. art. 4413

found in

construed section b(t) as exempting tram certitication those persons occupying constitutional law enforcement offices. The opinion concluded that since the constitutionaloffice itselfwas excepted from article 4413 (29aa), it was immaterial that a person held the position by appointment rather than by popular election, despite the literal langugeof theprovision:

[I]f the statute were construed otherwise, the requirements of the statute would constitute qualificationsfor the office. Therewould be one set of qualifications for the office if occupied by an appointee, and another set for it if occupiedby a personpopularlyelected to it.
Attorney General Opinion MW-111 (1979) at 353. Use of the word "elected" in section 6(f) "as construed broadly to include an "election"by the commissioners court, as well as an electionby the votingpublic.

Under this analysis, if elected city marshals fall within the scope of article 4413(29aa), section 6(f) would not exempt them from its requirements. Citymarshals are not "electedunder theprovisions of the Constitution of the State of Texas." V.T.C.S. art. 4413 (294, §b(f). Whether filled by means of a popular election or an appointment,,

the office of citymarshal is s statutory,as opposed to

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constitutional, ;77;999;999b. law enforcement office. See V.T.C.S. arts.

Compare Tex. Const. art. V, 5523 (office of sheriff), 18 (office of constable). See also Attorney General OpinionsMW-233 (1980);H-1002 (1977);M-1267 (1972). City marshals are "peace officers"within themeaning of article 4413(29aa) and thus are subject to the certification requirements established by the commission. Code of Crim. Proc. art. 2.12(3); V.T.C.S. art. 4413(29aa), §6(h); Attorney General Opinion NW-262 (1980). Under article 2.12 of the Code of Criminal Procedure, classificationof the citymarshal as a peace officer does not depend
on the manner in which that office was filled under article 999, V.T.C.S. In passing article 999, the legislature sought to give city councilsof general law cities theability to controlby ordinance the method of selecting its city officers. Miller v. City of Alamo Heights, supra at 266. However, we do not believe that the legislature intended the application of article 4413(29aa), and its protectionof thepublicwelfare, to dependupon themode of selection that such citiesmay choose to adopt. To hold otherwisewould allow "one set of qualifications for the office if occupiedby an appointee and another set for it if occupied by a person popularly elected to it," Attorney General Opinion MW-111 (1979) at 353, and permit general law cities to circumventby ordinance statutory requirements pertaining to qualifications of peace officers. Cf. State v. Provenzano, 169A.Zd 135 (N.J. 1961).
Statutory language will be construed to give effect to the legislative intent. National Surety Corp. v. Ladd, 115 S.W.2d 600 (Tex. 1938). When necessary to fulfill the legislative intent and to effectuate the legislativepurpose in passing the act, themeaning of words will be extended beyond or restricted within their natural import. Lunsford v. City of Bryan, 297 S.W.2d 115 (Tex. 1957);City of Mason v. West Texas Utilities Company, 237 S.W.2d 273, 278 (Tex. 1951). The prohibitoryprovisions of section 6 of article 4413(29aa) forbid the appointmentof an unlicensed individualas a peace officer. Courts have construed the word "appoint" to include any manner of selection, whether by election or otherwise, where necessary to fulfill the legislative intent. See, e.g., State v. Proveniano. supra; State v. Compson, 54 P. 349 (Ore. 1899); Pierce v. Guggenheim==, 44 A.D. 399, 60 N.Y.S. 703 (1899). In order to implement the legislative purpose of improving the quality of law enforcementpersonnel,we believe the courtswould liberally construe the word "appointed" in article 4413(29aa) to reach city marshals elected by the voting public, as well as those elected by city councils. e Wagnerv. City of SanAngelo, 546 S.W.2d 378 (Tex.Civ. APP. - Austin 1977,no writ) (useof theword "appointment"in article 1269m, V.T.C.S., which guarantees to terminated chief of police the right tobe reinstatedin positionno lower than rankhe held at "time

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of appointment," broadly construed to encompass election as well as appointment).

We therefore conclude that elected city marshals must meet the licensing requirements imposed by the commission under article 4413(29aa),V.T.C.S. We note thatneither the Texasnor United States Constitution prohibits the legislature from enacting reasonable and rational qualification requirements for those seeking election to a statutoryoffice. SeeBurroughsv. Lyles, 181 S.W.2d 570 (Tex. 1944); Dickson v. Strickland, 265 S.W. 1012 (Tex. 1924); 21 Tex. Jur. 2d Elections 93.

SUMMARY

Article 4413(29aa) applies to elected city marshals.

MARK WHITE Attorney General of Texas

JOHNW. FAINTER,JR. FirstAssistantAttorney General

RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral
Preparedby Jon Bible AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE

SusanL. Garrison,Chairman Jon Bible Rick Gilpin Tim Guill PatriciaHinojosa JimMoellinger

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