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DAN MORALES January 17,1992
r\TTORNEY
GENERAL
Honorable David Motley Opinion No. DM-75
Kerr County Attorney
323-B Earl Garrett Re: Construction of title 37, section
Kerrville, Texas 78028 211.821(2), Texas Administrative Code,
concerning licensing requirements for
constables, where constable originally
elected before September 1. 1985 seeks
election to precinct newly created upon
the elimination of original precinct
through redistricting (RQ-253)
Dear Mr. Motley:
You have requested an opinion from this office concerning licensure
requirements for constables. Specifically, you ask whether a constable who has been
continuously reelected to office since before 1985 would be required to become
licensed as a peace officer if he were elected constable from a precinct created upon
the demise of his original precinct through redistricting. Section 415.053 of the
Government Code provides that “[a]n officer.elected under the Texas Constitution
or a statute or appointed to fill a vacancy in an elective office must be licensed by
the Fexas Commission on Law Enforcement Gfficer Standards and Education] not
later than two years after the date that the officer takes offtce.“t Section 415.015(c)
of the code provides that chapter 415 “does not affect a constable or other officer or
county jailer elected under the Texas Constitution before September 1,
1985 . . . .” Gov’t Code 0 415015(c).
Chapter 415 of the Government Code concerns the education and licensing
of law enforcement officers. The chapter establishes the Texas Commission on Law
Enforcement Qfficer Standards and Education (TCLEOSE) and authorizes it to
adopt rules to administer the implementation of the statutory provisions. Id
&stables are eleckd under article V, don 18, of the TexasConstitution.
p. 375
Honorable David Motley - Page 2 (DM-75)
0 415010(l). Accordingly, TCLEOSE has adopted the following regulation, which
provides, in pertinent part:
(i) The commission shall issue a permanent peace officer
license to any peace officer, elected or appointed under the
Texas Constitution after September 1,1985, if that officer meets
all the minimum standards for peace officer licensing, including
the training and testing requirements. Such license shall be
subject to revocation as any other peace officer license issued by
the commission. This subsection shall not apply to:
(1) a sheriff; or
(2) a constable or any other constitutional peace
officer who first assumed office before September 1,
1985, even if reelected after that date unless there was a
break in office and that officer was then reelected after
that date to that or another office as a constitutional
peace officer.
37 T.A.C. Q 211.82. In Attorney General Opinion JM-1149 (1990), this office
applied section 211.82 in the case of a constable first elected before January 1, 1981,
who left office December 31, 1984, and did not again assume it until January 1,
1989. The opinion upheld the validity of section 211.82 and found that the constable
in question was not entitled to the exception from the 211.82(i)(2) mandatory
licensure provision. In that opinion a break in service had clearly taken place. In
the present case, the constable has been in office continuously since before
September 1, 1985, and seeks to continue in office through reelection. The question
you pose is whether the elimination of the constable’s original precinct through
redistricting would effect a break in his office, denying the constable the section
211.82(i)(2) exemption and requiring him to obtain a permanent peace officer
license within two years of his election as constable of the newly created precinct.
We conclude that a constable would not have a break in service under these
circumstances, and thus would be exempt from the licensure requirements under
section 211.82(i)(2).
Attorney General Opinion JM-1149 characterized section 211.82(i)(2) as a
“grandfather clause.” It exempts from the licensing requirement those who have
P. 376
Honorable David Motley - Page 3 (DM-75)
been in office continuously from the time immediately preceding September 1, 1985.
One who leaves office loses the exemption if elected or appointed at a later time to
the same or a different office as a constitutional peace officer. We do not believe
that a constable “reelected” from a newly-created precinct encompassing his former
precinct has left one office and assumed another in any but the most technical sense.
As you point out in your brief, “the abolished precinct is located entirely within the
geographic confines of the new precinct. All that will have changed is the precinct
number and the addition of territory.” Brief for Kerr County at 7-8.
Texas law recognizes in other contexts that a change in precinct because of
redistricting does not result in a change of office for an incumbent or officer-elect
from the original precinct. The case of Maron v. Franz, for example, concerned a
constable elected to office for a precinct which thereafter was eliminated through
redistricting. Maron v. Frunz, 525 S.W.2d 714 (Tex. Civ. App.--Houston [14th Dist.]
1975, writ refd n.r.e.). Following the redistricting, the constable’s residence was
within a precinct created in the redistricting process, different from the one that he
was elected to serve. The court ruled not only that the constable was entitled to
serve out his term as constable of the precinct in which he resided (the new
precinct), but also that he was not required to take a new oath of office or file
another bond when redistricting became effective and he became the constable of
Precinct 5 instead of Precinct 6. The court wrote, “It does not matter that the
number of the precinct in which [the constable] resided was changed from 6 to 5;
he ‘continued’ in the office in which he had been elected and for which he had
already qualified by taking an oath and filing a bond. He was not required to so
qualify again.” Id. at 717-18 (emphasis added); see also Tex. Const. art. V, Q 18. We
believe that a court, if asked to decide whether a constable in the situation you
describe had left office so as to constitute a break in service for section 211.82(i)(2)
purposes, would agree that no break in service had occurred. Therefore, the
constable would be entitled to exemption from the licensure requirements under
section 211.82(i) of title 37 of the Texas Administrative Code and sections 415.053
and 415.015(c) of the Government Code.
SUMMARY
The elimination of a precinct through redistricting and the
incumbent constable’s election as constable for the new precinct
created by the redistricting does not result in a “break in office”
for the constable within section 211.82(i)(2) of title 37 of the
Texas Administrative Code where the new precinct differs from
p. 377
Honorable David Motley -’Page 4 (DM-75)
the old only in its number and the addition of territory. Under
such circumstances, a constable who had been continuously re-
elected from his precinct since before September 1, 1985, would
be exempt from the Government Code section 415.053
requirement of licensure as a peace officer through Government
Code section 415.015(c) and title 37, section 211.82(i)(2), of the
Texas Administrative Code.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney Genera1
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Faith S. Steinberg
Assistant Attorney General
p. 378