Untitled Texas Attorney General Opinion

The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General

Mr. Fred Toler. Executive Director Opinion No. ~~-527
Supreme Court Building
Texas Commission on Law Enforcement
P. 0. BOY 12546
Austin, TX. 76711. 2546 Officer Standards and Education Re: Whether article 4413
5121475-2501 220-E Twin Towers Office Building (29aa). V.T.C.S., applies to
Telex 9101674-1367 1106 Clayton Lane elected city marshals
Telecot%er 5121475-0266 Austin, Texas 78723

1607 Main St.. Suite 1400
Dear Mr. Toler:
Dallas. TX. 75201.4709
2141742+?944 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
4624 Alberta Ave., Suite 160
El Paso. TX. 79905.2793
city marshal. It concluded that an individual must have peace officer
9151533~3464 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
1220 Dallas Ave., Suite 202
Houston. TX. 77002.6966
city marshal by popular election rather than by appointment. We
713,650.0666 conclude that they do.

The city marshal is the ex-officio chief of police, whose duties
606 Broadway. Suite 312 consist of executing all writs and process issued from the corporation
Lubbock, TX. 79401.3479
court, executing warrants, preserving the p&WX and arresting
6061747.5236
violators of the public peace. V.T.C.S. art. 999. In cities
operating under the commission form of government, the couaaissioners
4309 N. Tenth, Suite B are empowered to appoint a police force and "such other offices as
McAllen. TX. 76501.1665 they may deem necessary." V.T.C.S. art. 1161. However, unless its
5121662.4547
population numbers less than 5,000, general law cities must provide a
city marshal, and the city marshal may be either appointed or elected
200 Main Plaza, Suite 400 under article 978, V.T.C.S., as provided by city ordinance. V.T.C.S.
San Antonio. TX. 76205-2797 art. 977; Attorney General Opinion C-661 (1966). See also Miller v.
5121225-4191 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
An Equal Opportunity/ elected marshal has the identical duties and responsibilities as a
Affirmative Action Employer 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. art. 4413
(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 officer... only on a probationary
&is....

These provisions are qualified by the specific exemption found in
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~onMW-111 (1979), this office 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, law enforcement office. See V.T.C.S. arts.
;77;999;999b. 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

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