Untitled Texas Attorney General Opinion ( 1990 )

TEE ATTORNEY GENERAL
OF TEXAS
March 21, 1990
Honorable Ashley Smith Opinion NO. JM-1149
Chairman
Financial Institutions Committee Re: Certification reguire-
Texas House of Representatives ments for a constable who
P. 0: BOX 2910 has previously held the
Austin, Texas 78769 office (RQ-1889)
Dear Representative Smith:
you ask whether a person who held the office of
constable from January 1, 1981, through December 31, 1984,
and thereafter from January 1, 1989, to present is required
to meet the requirements for licensing or certification by
the Commissjon on Law Enforcement Officer Standards and
Education under chapter 415 of the Government Code.
-
Section 415.010 of the Government. Code provides that
the Commission on Law Enforcement Officer Standards and
Education may:
(1) adopt rules for the administration
of this chapter . . . .
(10) establish minimum standards relating
to competence and reliability, including
educational, training, physical, mental, and
moral standards, for licensing as an officer,
county jailer, or public security officer.
Section 415.015 of the Government Code provides in
pertinent part:
(c) This chanter does not affect a c o-n
Stable or other officer or countv iailer
#
and does not affect a
+ . (Emphasis added.)
The commission promulgated rule 211.82, 12 Tex. Reg.
4851 (1987), providing:
p. 6066
Honorable Ashley Smith - Page 2 (JM-1149) ,
(i) The commission shall issue a per-
manent 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 revocat.ion as any
other peace officer license issued by the
commission. u subsection su not annly
ti:
(1) a sheriff: or
(2) a constu or any other consti-
tutional peace officer Who first assumed
office before Seotember 1. 1985. even if
re-ele&sd after that date unless there
J
then re-elected after that date to that or
wt er off&e as a constitutional veace
&. (Emphasis added.)
The courts will give weight to an agency#s interpreta-
tion of a statute, but will not respect an agency's .inter-
pretation contrary to the clear meaning of an unambiguous
statute. 2 Tex. Jur. 3d, Administrative Law 5 7.
We do not believe that rule 211.82 is contrary to the
meaning of section 415.015. The exemption to training and
educational requirements afforded a constable elected before
September 1, 1985, appears to be a provision commonly re-
ferred to as the "grandfather" clause. We find the inter-
pretation given section 415.015 by the commission in rule
211.82 to be consistent with the construction the courts
have given the '0grandfather00 clause. The Supreme Court of
Arizona in State Pd. of Disuensina ODtiCianS v. c a, 380
P.2d 784 (1963), in addressing the meaning of the "grand-
fatherw clause stated:
'Grandfather' clauses are generally found
where occupations not formerly regulated by
statute are brought under legislative con-
trol. They permit those who have been in
continuous practice in the particular occupa-
tion for a prescribed period immediately
preceding the effective date of the act to
receive a license.
p. 6067
Honorable Ashley Smith - Page 3 (JR-1149)
P
Under your scenario there was a break in the con-
stable's service from December 31, 1984, to January 1, 1989.
Therefore, the constable had not been in continuous service
in that office immediately preceding September 1, 1985. We
conclude that the constable in question does not come within
the ex.ception to the officer licensin requirements provided
in subsection (c) of section 415.015. 9
A constable whose tenure of office ceased
on December 31, 1984, and did not resume
until January 1, 1989, is required to meet
the requirements for licensing by the Commis-
sion on Law Enforcement Officer Standards and
Education.
JIM MATTOX
Attorney General of Texas
WARYKELLER.
First Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
1. Section 415.053 of the Government Code allows an
officer elected under the Texas Constitution two years after
the officer takes office to complete the commission's
P licensing requirements.
P. 6068