The Attorney General of Texas 

December 22, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOY 12546 

Austin, TX. 76711. 2546 

5121475-2501 

Telex 9101674-1367 

Telecot%er 5121475-0266 

1607 Main St.. Suite 1400 

Dallas. TX. 75201.4709 

2141742+?944 

4624 Alberta Ave., Suite 160 

El Paso. TX. 79905.2793 

9151533~3464 

1220 Dallas Ave., Suite 202 

Houston. TX. 77002.6966 

713,650.0666 

606 Broadway. Suite 312 

Lubbock, TX. 79401.3479 

6061747.5236 

4309 N. Tenth, Suite B 

McAllen. TX. 76501.1665 

5121662.4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 76205-2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Mr. Fred Toler. Executive Director Opinion No. ~~-527 

Texas Commission on Law Enforcement 

Officer Standards and Education 

220-E Twin Towers Office Building 

1106 Clayton Lane 

Austin, Texas 78723 

Re: Whether article 4413 

(29aa). V.T.C.S., applies to 

elected city marshals 

Dear Mr. Toler: 

Attorney General opinion MW-262 (1980) concerned the 

applicability of article 4413(29aa) certification requirements to an 

individual appointed by the mayor to serve out the term of the elected 

city marshal. It concluded that an individual must have peace officer 

certification under article 4413(29aa) to legally serve as city 

marshal. You request a clarification of this opinion and ask whether 

these same requirements apply to an individual who holds the office of 

city marshal by popular election rather than by appointment. We 

conclude that they do. 

The city marshal is the ex-officio chief of police, whose duties 

consist of executing all writs 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 

population numbers less than 5,000, general law cities must provide a 

city marshal, and the city marshal may be either appointed or elected 

under article 978, V.T.C.S., as provided by 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 appointed by the city council. 

In 1965, the legislature, in an attempt to upgrade the 

responsible effectiveness of law enforcement personnel, 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. 1909 
Mr. Fred Toler - Page 2 (MW-527) 

desienated bv article 2.12 of the Code of Criminal Procedure. and to 

issue licenses to those qualified under this act. V.T.C.S. 

(29aa), 981, Z(b), (c). It further provides that: 

Sec. 6. . ..(b) A person who has not 

satisfactorily completed preparatory training in 

law enforcement... is eligible to be appointed as 

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): 

Nothing herein shall be 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). 

In Attorney 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 constitutional office itself was excepted from article 4413 

(29aa), it was immaterial that a person held the position by 

appointment rather than by popular election, despite the literal 

languge of the provision: 

[I]f the statute were construed otherwise, the 

requirements of the statute would constitute 

qualifications for the office. There would be one 

set of qualifications for the office if occupied 

by an appointee, and another set for it if 

occupied by a person popularly elected 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 election by the 

voting public. 

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. City marshals are not "elected under the provisions 

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 city marshal is s statutory, as opposed to 

P. 1910 
Mr. Fred Toler - Page 3 (MW-527) 

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 Opinions MW-233 

(1980); H-1002 (1977); M-1267 (1972). 

City marshals are "peace officers" within the meaning 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, 

classification of the city marshal 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 

councils of general law cities the ability to control by 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 

protection of the public welfare, to depend upon the mode of selection 

that such cities may choose to adopt. To hold otherwise would allow 

"one set of qualifications for the office if occupied by 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 circumvent by ordinance statutory requirements 

pertaining to qualifications of peace officers. Cf. State v. 

Provenzano, 169 A.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 legislative purpose in passing the act, the meaning 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 prohibitory provisions of section 6 of article 4413(29aa) 

forbid the appointment of an unlicensed individual as 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 

enforcement personnel, we believe the courts would 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 Wagner v. City of San Angelo, 546 S.W.2d 378 (Tex. Civ. 

APP. - Austin 1977, no writ) (use of the word "appointment" in article 

1269m, V.T.C.S., which guarantees to terminated chief of police the 

right to be reinstated in position no lower than rank he held at "time 

p. 1911 
Mr. Fred Toler - Page 4 (NW-527) 

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 that neither the Texas nor United States 

Constitution prohibits the legislature from enacting reasonable and 

rational qualification requirements for those seeking election to a 

statutory office. See Burroughs v. 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 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Tim Guill 

Patricia Hinojosa 

Jim Moellinger 

p. 1912