Untitled Texas Attorney General Opinion ( 2007 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 28, 2007
Mr. Timothy A. Braaten Opinion No. GA-0573
Executive Director
Texas Commission on Law Enforcement Re: Whether, in light of the equal protection
Officer Standards and Education guarantees of the United States and Texas
6330 U.S. Highway 290 East, Suite 200 constitutions, the Texas Municipal Police
Austin, Texas 78723 Association, an entity credentialed by and under
contract with the Texas Commission on Law
Enforcement Officer Standards and Education to
provide continuing education to peace officers,
may reduce tuition for its members (RQ-0578-GA)
Dear Mr. Braaten:
The federal and state constitutions guarantee that the state generally will treat similarly
situated persons in an equal manner. See U.S. CaNST. amend. XIV, § 1; TEX. CaNST. art. I, § 3. On
behalf of the Texas Commission on Law Enforcement Officer Standards and Education (the
"Commission"), you ask whether, in light of these constitutional equal protection guarantees, the
Texas Municipal Police Association (the "TMPA"), which the Commission has credentialed and
contracted with to provide continuing education to peace officers, may charge reduced tuition to
TMPA members. 1 You also ask whether the Commission has "any obligation under state or federal
law to ensure that all [Commission-]approved training providers offer [Commission] courses at the
same across[-]the[..]board enrollment fees." Request Letter, supra note 1, at 2.
I. Background
As you explain, every licensed peace officer must "complete at least 40 hours of continuing
education programs once every 24 months" to retain his or her license. TEX. OCC. CODE ANN.
§ 170 1.351 (a) (Vemon Supp. 2006); see also id. (authorizing the Commission to suspend the license
ofa peace officer who fails to comply with the continuing-education requirement); id. § 1701.354(a)
(requiring deputy constables to receive training in civil process in certain circumstances); id.
ISee Letter from Timothy A. Braaten, Executive Director, Texas Commission on Law Enforcement Officer
Standards and Education, to Honorable Greg Abbott, Attorney General of Texas, at 2 (Apr. 2,2007) (on file with the
Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
Mr. Timothy A. Braaten - Page 2 (GA-0573)
§ 170I.3545(b) (requiring continuing education for constables).2 In addition, the Commission, in
accordance with statutory requirements, requires the state, counties, special districts, or
municipalities that appoint or employ peace officers to provide each peace officer with Commission-
approved training relating to "civil rights, racial sensitivity, and cultural diversity," as well as, in
certain circumstances, "child abuse or neglect, family violence, . . . sexual assault," and "sex
offender characteristics." Id. § 170I.352(b)(2) (Vernon 2004); see also 37 TEx. ADMIN. CODE
§ 217.II(b), (c)(I) (2007) (Commission, Legislatively Required Continuing Education for
Licensees).
To provide continuing education that is recognized by the Commission, a training provider
must obtain a credential from the Commission. See TEX. Oee. CODE ANN. § 170I.352(a) (Vernon
2004) (requiring the Commission to "recognize, prepare, or administer continuing education
programs"); see also 37 TEX. ADMIN. CODE § 215.I(a) (2007) (Commission, Licensing of Training
Providers) (authorizing the Commission to credential three types oftraining providers); id §§ 215.3,
.5-.6 (2007) (Commission, Academy Licensing; Contractual Training; Academic Alternative
Licensing) (providing specifically for credentialing each type of training provider). You aver that
many academies have been credentialed and that "[a]ll state-mandated training is available from
multiple law enforcement academies and contract-training providers" and, with one exception, is
available for free from a Commission-operated website. Request Letter, supra note 1, at 1. Your
question centers on the practice of one credentialed training provider, the TMPA, which describes
itself as a private entity "open to all Texas peace officers, reserve officers[,] and public safety
employees." TMPA, Texas' Oldest, Most Progressive, Full-Service Law Enforcement Association!,
available at http://www.tmpa.org/about/ (last visited Sept. 27, 2007); see Request Letter, supra note
1, at 2.
In addition to having obtained a credential from the Commission, you imply that the TMPA
provides education and training for peace officers "under a contract with the [C]ommission."
37 .TEX. ADMIN. CODE § 2II.I(a)(I8) (2007) (Commission, Definitions); see Request Letter, supra
note 1, at 2;3 see also 37 TEX. ADMIN. CODE § 215.5(a) (2007) (Commission, Contractual Training)
(authorizing the Commission to enter into a contract with "a law enforcement agency, a law
enforcement association, or [an] alternative delivery trainer to conduct training for" licensed peace
officers).
You explain that another membership organization, the Combined Law Enforcement
Associations ofTexas ("CLEAT"), has noted the TMPA's practice ofdiscounting TMPA members'
fees for continuing-education programs offered by the TMPA. See Request Letter, supra note 1, at
2; see also TMPA, Events Calendar, available at http://www.tmpa.org/events/events.asp (last visited
2But see TEX. OCC. CODE ANN. § 1701.351(b) (Vernon Supp. 2006) (allowing the Commission to waive the
continuing-education requirements); id § 1701.351 (c) (requiring the Commission to credit a peace officer who serves
as a member ofthe United States military for at least twelve months or serves as an elected member ofthe Legislature).
3Accord Brief of Amicus Curiae Combined Law Enforcement Associations of Texas attached to Letter from
Tom A. Stribling, Staff Attorney, to Nancy S. Fuller, Chair, Opinion Committee, Office of the Attorney General of
Texas, at 3 n.1, 9 (May 9,2007) (on file with the Opinion Committee).
Mr. Timothy A. Braaten - Page 3 (GA-0573)
Sept. 27, 2007) (listing classes and fees, some ofwhich provide discounts for TMPA members). As
you state, contractual providers other than TMPA "charge different fees for the same training based
upon membership" in the provider's organization or some other characteristic, but CLEAT argues
that TMPA's practice implicates equal protection concerns. Request Letter, supra note 1, at 2. You
summarize CLEAT's concern:
CLEAT asserts that TMPA offers a "graduated fee scale for
[Commission] training, permitting TMPA members to pay an
enrollment fee lower than all other participants." . . . CLEAT
complains that "[s]uch a discriminatory fee schedule contravenes the
Equal Protection Clause ofthe United States and Texas Constitutions.
Further, by sanctioning such a scheme, [the Commission] has
unconstitutionally participated in the recruitment of members by a
union/labor organization to the exclusion' of any other union/labor
organization."
, Id. (quoting Letter from H.L. O'Neal, Corporate Counsel, CLEAT, to Timothy Braaten, Executive
Director, Commission, at 2 (Jan. 18, 2007), attached to Request Letter). While the Commission is
aware of the TMPA's practice, it does not believe the practice is unconstitutional. See Request
Letter, supra note 1, at 2. You also imply that the Commission disagrees with CLEAT's assertion
that "membership in a union/labor organization[] is a quasi-protected class" for constitutional
purposes. Id.
II. Constitutional Equal Protection Guarantees
Having set out the relevant facts, we proceedto consider the questions you have posed. Your
primary concern is whether the TMPA's tuition policy violates constitutional equal protection
guarantees. See ide
The Fourteenth Amendment to the United States Constitution prohibits a state from denying
"to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV,
§ 1. Article I, section 3 of the Texas Constitution similarly affirms that "[a]ll free men ... have
equal rights ...." TEX. CONST. art. I, § 3. Texas courts apply federal standards when determining
whether a statute violates equal protection under either the federal or state provision. See Rose v.
Doctors Hosp., 801 S.W.2d 841,846 (Tex. 1990); In re G.e., 66 S.W.3d 517,522 n.l (Tex.
App.-Fort Worth 2002, no pet.) (citing Reidv. Rolling Fork Pub. Utile Dist., 979 F.2d 1084, 1089
n.ll (5th Cir. 1992); Rose, 801 S.W.2d at 841; Sanders v. Palunsky, 36 S.W.3d 222,224 (Tex.
App.-Houston [14th Dist.] 2001, no pet.)). Consequently, this opinion will analyze your question
in terms of federal equal protection requirements.
Equal protection rights arise as the result of action by the state "or [by] one acting under the
color of [state] authority." United States v. Guest, 383 U.S. 745, 755 (1966). The Fourteenth
Amendment does not protect an individual against wrongs done by private entities unless the state
has been involved to some degree. See ide at 755-56; Moose Lodge No.1 07 v. Irvis, 407 U.S. 163,
Mr. Timothy A. Braaten - Page 4 (GA-0573)
172 (1972). Absent state action, therefore, TMPA's tuition policy does· not implicate equal
protection concerns. See Brentwood Acad v. Tenn. Secondary Sch. Athletic Ass 'n, 531 U.S. 288,
295 (2001) (stating that a court will find state action only if it finds a "close nexus between the State
and the challenged action" (quoting Jackson v. Metro. Edison Co., 419 U.S. 345,351 (1974))).
Whether a private entity's action in a particular circumstance constitutes state action for
purposes of the Fourteenth Amendment is a question requiring the "sifting [of] facts and weighing
[of] circumstances." Evansv. Newton, 382 U.S. 296, 299-300 (1966) (quotingBurtonv. Wilmington
Parking Auth., 365 U.S. 715, 722 (1961)); see BrentwoodAcademy, 531 U.S. at 296 (noting that "a
host of facts" can bear on the fairness of attributing state action to a private entity). Because the
Attorney General's opinion process is inappropriate for determining questions of fact and because
a legal conclusion can be reached in this opinion without resolving the state action issue, we will
assume for purposes ofthis opinion that the TMPA's policy constitutes state action. 4 See Tex. Att'y
Gen. Ope No. GA-0446 (2006) at 18 ("Questions offact are not appropriate to the opinion process.").
This assumption does not resolve the issue because the TMPA's tuition policy violates the
constitutional equal protection guarantee only if the policy bears no rational relationship to a
legitimate state purpose. While equal protection "demands" that the state treat "similarly situated
persons ... similarly under the law," that does not mean that the state may not adopt classifications
"with resulting disadvantage to various groups or persons." Sonnier v. Quarterman, 476 F.3d 349,
367-68 (5th eire 2007) (citingPlylerv. Doe, 457 U.S. 202,216 (1982), quotingRomerv. Evans, 517
U.S. 620, 631 (1996)). A classification that targets a suspect class or impacts a fundamental right
"will be strictly scrutinized and upheld only if it is precisely tailored to further a compelling
government interest." Id. at 368 (citing Plyler, 457 U.S. at 217-18). On the other hand, a
classification that "neither burdens a fundamental right nor targets a suspect class" will be upheld
"so long as it bears a rational relation to some legitimate end." Id. (quoting Romer, 517 U.S. at 631);
see Mass. Bd ofRetirementv. Murgia, 427 U.S. 307,312 & nn.3, 4 (1976); see also Plyler, 457U.S.
at 216 (stating that, under the rational-basis standard, a court seeks "only the assurance that the
classification at issue bears some fair relationship to a legitimate public purpose").
Union membership has not been named by a court as suspect class, 5 nor is union membership
a fundamental right. 6 Rather, courts have concluded that classifications based on union membership
4If the TMPA's tuition policy does not constitute state action, then it would not be evaluated under the
Fourteenth Amendment to the United States Constitution. See Guest, 383 U.S. at 755-56; Moose Lodge No. 107,407
U.S. at 172.
5For cases fmding a suspect class, see, e.g., Graham v. Richardson, 403 U.S. 365, 372 (1971) (alienage);
McLaughlin v. Fla., 379 U.S. 184, 191-92 (1964) (race); Oyama v. Cal., 332 U.S. 633, 646 (1948) (ancestry) (quoting
Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).
6For cases fmding a violation of fundamental rights, see, e.g., Bullockv. Carter, 405 U.S. 134, 142-43 (1972)
(right to vote); Shapiro v. Thompson, 394 U.S. 618, 629-30 (1969) (right ofinterstate travel), overruled in part on other
grounds, Edelman v. Jordan, 415 U.S. 651 (1974); Williams v. Rhodes, 393 U.S. 23, 30-31 (1968) (rights guaranteed
by the First Amendment) (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)).
Mr. Timothy A. Braaten - Page 5 (GA-0573)
"must meet only [the] relatively relaxed" standard of reasonableness to survive constitutional
scrutiny. City of Charlotte v. Local 660, Int'l Ass'n of Firefighters, 426 U.S. 283,286 (1976);
accord Bondv. Bd. ofEduc., 1999 WL 151702, *4 (E.D.N.Y. 1999) (citing City ofCharlotte, 426
U.S. at 286); Henry v. Metro. Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990) (citing Hoke Co. v.
Tenn. Valley Auth., 854 F.2d 820, 828 (6th Cir. 1988)).
In this instance, a court probably would find that this particular classification rationally
relates to a legitimate state purpose. The continuing-education requirements that the Legislature has
adopted ensure that peace officers will be up-to-date on changes in the law and practice with respect
to highly sensitive and challenging subjects-eivil rights, racial sensitivity, cultural diversity, child
abuse or neglect, family violence, sexual assault, and sex-offender characteristics. See TEX. OCC.
CODE ANN. § 1701.352(b)(2) (Vernon 2004); see also 37 TEX. ADMIN. CODE § 217.11(b), (c)(I)
(2007) (Commission, Legislatively Required Continuing Education for Licensees). The Legislature
has specifically found that standardizing peace officer training serves a state purpose. See, e.g., Act
ofMay 28, 1965, 59th Leg., R.S., ch. 546, §§ 2, 6, 11, 1965 Tex. Gen. Laws 1158, 1158-60 (finding,
apparently in connection with a rising crime rate, a need to study means of peace officer training);
Act of May 8, 1969, 61st Leg., R.S., ch. 323, §§ 1, 4, 7, 1969 Tex. Gen. Laws 998, 998-99, 1001,
1002 (same). In addition, allowing various credentialed and contractual providers to offer the
training serves the purpose of increasing the ease with which peace officers may comply with the
statutory continuing-education requirements. And in any event, individuals who are not TMPA
members can, with one exception, obtain all of the required training for free from a Commission-
operated website. See Request Letter, supra note 1, at 1; cf Carnivale v. State ofN Y, 822 N.Y.S.2d
267, 268 (N.Y. App. Div. 2006) (rejecting the plaintiffs claim that state continuing-education
requirements for architects "force him to take classes sponsored by the American Institute of
Architects" and violates constitutional equal-protection guarantees because (1) three other sponsors
of continuing education have been approved and (2) it is rational for the state to authorize "the
largest professional organization of architects in the state ... to sponsor an extensive schedule of
continuing education courses"). Because the classification can be found to rationally relate to a
legitimate state purpose, the TMPA may charge its members a reduced tuition without violating
constitutional equal protection guarantees.
You also ask whether the Commission is obligated "to ensure that all [C]ommission[-]
approved training providers offer [Commission] courses at the same across[-]the[-]board enrollment
fees." Request Letter, supra note 1, at 2. We limit our answer to the TMPA's policy.
Assuming that the TMPA's policy constitutes state action, and having concluded that the
TMPA's tuition policy rationally relates to a legitimate state purpose, the Commission need not
require the TMPA to revise its tuition policy.
Mr. Timothy A. Braaten - Page 6 (GA-0573)
SUMMARY
A policy under whichthe Texas Municipal Police Association
reduces the tuition for required continuing education charged to
Association members is rationally related to a legitimate state
purpose. The TMPA therefore may charge its members a reduced
tuition without contravening constitutional equal protection
guarantees, and the Texas Commission on Law Enforcement Officer
Standards and Education need not require the TMPA to revise its
policy.
KENT C. SULLIVAN
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee