Untitled Texas Attorney General Opinion ( 2002 )

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
June 11,2002
The Honorable Hector M. Lozano Opinion No. JC-05 14
Frio County Attorney
500 East San Antonio Street, Box 1 Re: Whether a constable who fails to provide
Pearsall, Texas 7806 l-3 100 evidence of permanent peace officer licensure
under section 86.002 1(b) of the Local Government
Code automatically forfeits his office, and related
questions (RQ-0484-JC)
Dear Mr. Lozano:
Section 86.0021(b) of the Local Government Code mandates that a constable who fails to
provide evidence of permanent peace officer licensure on or before the 270th day after taking office
“forfeits the office and is subject to removal in a quo warrant0 proceeding.” TEX.Lot. GOV’T CODE
ANN. § 86.0021(b) (Vernon Supp. 2002). You ask us to address a series of questions regarding the
application of this provision. *
Your questions arise from the following situation. A constable in your county has not
complied with section 86.002 l(b). See Request Letter, supra note 1, at 1. The individual was
elected in November 2000, and sworn in as a constable on January 1,200l. See id. The constable
has failed to provide evidence that he has been issued a permanent peace officer license by the
Commission on Law Enforcement Officer Standards and Education; he has only a “Conditional
Reserve License,” issued July 6, 2001. See id. You believe that the constable was required to
provide the commissioners court by September 28,200l (270 days from January 1,200l) evidence
that he had been issued a permanent peace officer license under chapter 1701 of the Occupations
Code, and that his failure to do so constitutes a forfeiture of his office. See id. The Frio County
Commissioners Court, however, has not taken any action with respect to the constable’s status. One
or more of the commissioners believe that “the Commissioners Court [has] nothing to do with the
licensure matter.” Id.
To provide a legal context for your questions, we review the relevant provisions with respect
to the removal of constables. Constables are constitutional officers elected under article V, section
18 of the Texas Constitution. See TEX. CONST.art. V, 6 18. Their removal is subject to article V,
section 24, which provides that “constables, and other county officers, may be removed by the
‘See Letter from Honorable Hector M. Lozano, Frio County Attorney, to Honorable John Cornyn, Texas
Attorney General (Dec. 27, 2001) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Hector M. Lozano - Page 2 (JC-0514)
Judges of the District Courts for incompetency, official misconduct, habitual drunkenness, or other
causes defined by law, upon the causes therefor being set forth in writing and the finding of its truth
by a jury.” TEX. CONST.art. V, $24; Schwenke v. State, 960 S.W.2d 227,228 (Tex. App.-Corpus
Christi 1997, pet. denied).
Section 86.0021 of the Local Government Code provides for the removal of a constable for
failure to obtain a permanent peace officer’s license:
(b) On or before the 270th day after the date a constable takes
office, the constable shall provide, to the commissioners court of the
county in which the constable serves, evidence that the constable has
been issued a permanent peace officer license under Chapter 1701,
Occupations Code. A constable who fails to provide evidence of
licensure under this subsection or who fails to maintain a permanent
license while serving in office forfeits the ofice and is subject to
removal in a quo warrant0 proceeding under Chapter 66, Civil
Practice and Remedies Code.
(c) The license requirement of Subsection (b) supersedes the
license requirement of Section 1701.302, Occupations Code.
TEX. Lot. GOV’T CODEANN. 8 86.002 1(b)-(c) (V emon Supp. 2002) (emphasis added).
Chapter 1701 of the Occupations Code generally requires peace officers, including a
constable, to be licensed by the Commission on Law Enforcement Officer Standards and Education
(the “Commission”). Section 1701.301 provides that, with limited exceptions not relevant here,* a
person may not be appointed as “an officer, county jailer, or public security officer unless the person
appointed holds an appropriate license issued by” the Commission. See TEX. Oct. CODE ANN.
8 1701.301 (Vernon 2002). More specifically, section 1701.302 of the Occupations Code requires
an officer elected under the Texas Constitution or a statute or appointed to fill a vacancy in an
elected office to obtain a license by the second anniversary of the date the officer takes office; and
provides that an officer who does not obtain a license by this date or does not remain licensed is
subject to removal under section 665.052 of the Government Code or another removal statute. See
id. 8 1701.302(a), (c). Significantly, under section 1701.302, an elected officer must obtain a
“license” within two years of taking office rather than the 270 days provided for under section
86.0021(b) of the Local Government Code. The licensing requirements in section 1701.302,
however, do not apply to a constable because they are expressly superseded by those in 86.0021(b)
of the Local Government Code. See TEX.Lot. GOV’T CODEANN. 8 86.0021(c).
2See also id. $5 1701.3 10 (person trained and certified by Texas Department of Criminal Justice to serve as
correction officer not required to complete training to be appointed part-time county jailer); .3 11 (authorizing
Commission to allow law enforcement agency to petition for provisional license for agency officer in case of workforce
shortage); .314 (officer appointed before September 1, 1970 not required to obtain license unless seeking new
appointment).
The Honorable Hector M. Lozano - Page 3 (JC-0514)
“Officer” for the purposes of chapter 1701 is “a peace officer or reserve law enforcement
officer,” see TEX. OCC. CODEANN. 8 1701.001(3) (Vernon 2002), and “peace officer” is “a person
elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure,
or other law.” Id. 8 1701 .OOl(4). Under article 2.12 of the Code of Criminal Procedure, “constables,
deputy constables, and those reserve deputy constables who hold a permanent peace officer license
issued under Chapter 1701, Occupations Code,” among others, are “peace officers.” TEX. CODE
GRIM. PROC. hi. art. 2.12(2) (Vernon Supp. 2002).
With this background, we turn to your first, second, third, and fifth questions. You ask:
l Whether a Constable who fails to provide evidence of licensure
under Section 86.0021 (b) Local Government Code, automatically
forfeits his office?
l Whether a Constable who fails to provide evidence of licensure
under Section 86.0021(b) may continue to perform his duties as
a Constable until a removal in a quo warranto proceeding under
Chapter 66 Civil Practice and Remedies Code. If so, who
authorizes and/or initiates a Quo Warrant0 proceeding?
l If an apparent conflict of interest exist between the County
Attorney and Constable based on prior attorney-client
representations, who may petition the District Court to file an
information in the nature of quo warranto?
l What role does the Commissioners Court play in a Constable’s
failure to meet the licensure requirements under Section
86.002 1(b) Local Government Code?
Request Letter, supra note 1, at 2.
Because they overlap to a great degree, we consider the first three questions together and
conclude as follows: Under section 86.0021(b), a constable who fails to provide evidence of
permanent licensure “automatically” forfeits his office by operation of law. However, he is not
automatically removed from that office. The constable may continue to perform his duties until he
is removed from office by a judgement of a district court in a quo warrant0 proceeding, which may
be initiated by the attorney general, the district attorney, or the county attorney. The attorney general
or the district attorney may petition the district court for leave to file an information in the nature of
a quo warrant0 proceeding if the county attorney is precluded from doing so because of a conflict
of interest.
Section 86.0021 (b) expressly states that a constable who fails to provide evidence of
permanent licensure “forfeits the office and is subject to removal in a quo warrant0 proceeding under
The Honorable Hector M. Lozano - Page 4 (JC-0514)
Chapter 66, Civil Practice and Remedies Code.” TEX. Lot. GOV’T CODE$86.0021 (Vernon Supp.
2002). “Quo warrant0 suits are those through which the state acts to protect itself and the good of
the public generally. [It] is an ancient prerogative writ in the nature of a writ of right for the king
against one who claims an office, franchise, or liberty. Quo warrant0 suits inquire by what authority
the claimant supports his claim.” Hunt v. City ofLongview, 932 F. Supp. 828,834 (E.D. Tex. 1995)
(citations omitted) (citing Fuller Springs v. State ex. rel. City oflufkin, 5 13 S.W.2d 17 (Tex. 1974);
State ex rel. City of Colleyville v. City ofHurst, 519 S.W.2d 698 (Tex. Civ. App.-Fort Worth 1975,
writ ref d n.r.e.)). Quo warrant0 is generally the exclusive procedure to declare that an elected
official is no longer qualified to occupy his or her elected office. See id. (and cases cited).
Chapter 66 of the Civil Practice and Remedies Code provides that an action in the nature of
a quo warrant0 is available when “a public officer does an act or allows an act that by law causes a
forfeiture of his office.” TEX. Crv. PRAC. &REM. CODEANN. 0 66.001(2) (Vernon 1997). Section
66.002 sets out the procedure for initiating such a suit:
(a) If grounds for the remedy exist, the attorney general or the
county or district attorney of the proper county may petition the
district court of the proper county or a district judge if the court is in
vacation for leave to file an information in the nature of quo warranto.
(b) The petition must state that the information is sought in the
name of the State of Texas.
(c) The attorney general or county or district attorney may file the
petition on his own motion or at the request of an individual relator.
(d) If there is probable ground for the proceeding, the judge shall
grant leave to file the information, order the information to be filed,
and order process to be issued.
Id. $ 66.002.
Under section 66.002, the quo warrant0 proceeding may be instituted by the attorney general
or the county or district attorney by petitioning “for leave to file an information in the nature of quo
warranto.” See id.; see also BLACK’S LAW DICTIONARY 783 (7th ed. 1999) (“‘information.’ A
formal criminal charge made by a prosecutor without a grand-jury indictment. . . . Cl’INDICTMENT.“).
The attorney general or the county or district attorney may initiate the proceedings on his or her own
motion or at the behest of an “individual relator.” TEX.CIV. PRAC. &REM. CODEANN. 5 66.002(c)
(Vernon 1997); see also BLACK’S LAW DICTIONARY 1292 (7th ed. 1999) (“‘relator.‘l. The real party
in interest in whose name a state or an attorney general brings a lawsuit.“). But see Fuller Springs,
513 S.W.2d at 19 (“The State is the real prosecutor of such a [quo warrant01 suit.“); City of Hurst,
5 19 S.W.2d at 700 (“The State is the real plaintiff and controls the litigation even though the action
may be at the behest of and affect the rights of private parties.“). Whether to petition a court for
leave to file an information in the nature of a quo warrant0 is within the sole discretion of the
The Honorable Hector M. Lozano - Page 5 (JC-05 14)
attorney general or the district or county attorney. See Marshall v. City of Lubbock, 520 S.W.2d 553
(Tex. Civ. App.-Amarillo 1975, writ ref d n.r.e.); see also Lewis v. Drake, 641 S.W.2d 392, 395
(Tex. App.-Dallas 1982, no writ) (public officers should be free to perform their duties without
having their authority questioned; they “should not be called on to defend their authority unless a
proper legal officer of the State has determined that the question raised is serious and deserves
judicial consideration as required by article 6253 [predecessor to 8 66.002].“).
Additionally, section 66.003 provides that if the person charged by the information is found
guilty, the court “shall enter a judgment removing the person from office or franchise; shall enter
judgment for the costs of prosecution in favor of the relator; and may fine the person for usurping,
intruding into, or unlawfully holding and executing the office or franchise.” TEX.CIV. PRAC.&REM.
CODE 5 66.003 (Vernon 1997). Thus, until removed from office by such a judgment, a constable
who has “forfeited” his office under section 86.0021(b) remains in that office and, it follows, may
continue to perform the duties of that office. See id.; see also Tex. Att’y Gen. Op. No. DM-493
(1998) at 4 (“A director subject to constitutional removal requirements has the right to remain in
office until formally removed.“); LO-97-070, at 4 (“Until that time [when court issues quo warranto
order], a commissioner who is ineligible to serve is a de facto officer who holds the office under
color of appointment.“).
With respect to your question regarding a commissioners court’s role in a constable’s failure
to meet the licensure requirements under section 86.002 1(b) Local Government Code, we conclude
that the commissioners court has no formal “role.” It may, but is not required to, request the attorney
general or the district or county attorney to initiate the quo warrant0 proceeding to remove the
constable. Section 86.002 1(b) does not expressly require the commissioners court to take any action.
See TEX.Lot. GOV’T CODE6 86.002 1(b) (Vernon Supp. 2002). By its terms, the statute only speaks
to the constable’s obligation to provide the commissioners court with the evidence of permanent
licensure. See id. And we are unaware of any other provision that speaks to the commissioners
court’s “role” in this situation or mandates that it take some action.
Clearly, the commissioners court cannot initiate the quo warrant0 proceedings to remove the
constable. TEX. CIV. PRAC.& REM. CODEANN. 5 66.002(a),(b) (Vernon 1997); see also Hunt, 932
F. Supp. at 834 (city council may not initiate quo warranto proceedings; only attorney general or
district attorney may). Moreover, we do not believe that the commissioners court, a governmental
body, may formally designate itself as a “relator” under the express terms of section 66.002(c) of the
Civil Practice and Remedies Code for the purposes of instituting a quo warrant0 proceeding, given
that it is not an “individual.” See id. 9 66.002(c) (“The attorney general or county or district attorney
may file the petition on his own motion or at the request of an individual relator.,‘). But see Harang
v. State ex rel. City of West Columbia, 466 S.W.2d 8’13 (Tex. Civ. App.-Houston [ 14th Dist.] 1971,
no writ) (“The cities are municipal corporate entities and, as such, are individuals within the meaning
of Art. 6253 [predecessor to 8 66.0021.“). We do not believe, however, that this has significant
consequence given that the attorney general or the district or county attorney may institute a quo
warranto proceedings on his or her own motion. See TEX. CIV. PRAC. & REM. CODE ANN.
0 66.002(c) (Vernon 1997).
The Honorable Hector M. Lozano - Page 6 (JC-0514)
You additionally ask:
l Whether a Constable who has been issued a Conditional Reserve
Officer License only, satisfies the licensure requirement under
Chapter 415, Government Code? Does the Conditional Reserve
License authorize the Constable to carry a weapon [?]
l Whether said constable, who fails to meet the licensure
requirements of 86.0021(b), Local Government Code, is subject
to prosecution under Section 37.11 of the Texas Penal Code for
Impersonating a Public Servant?
Request Letter, supra note 1, at 2.
A “conditional reserve license” does not satisfy the requirements of section 86.002 1(b) of
the Local Government Code. While you ask whether a conditional reserve license satisfies the
requirements of chapter 415 of the Government Code, we presume you are concerned with the
requirements of section 86.0021(b) of the Local Government Code. Section 86.0021(b) clearly
provides that a constable must provide “evidence that the constable has been issued a permanent
peace officer license under Chapter 1701, Occupations Code.” TEX. Lot. GOV’T CODE ANN.
0 86.002 1(b) (emphasis added).
Your additional question whether the conditional reserve license authorizes a constable to
carry a gun, presumes that a constable’s authority to carry a gun is derived from the license issued
by the Commission under chapter 1701 of the Occupations Code, whether it be a conditional or
permanent license. That presumption is incorrect. A constable is authorized to carry a gun because
he or she is a “peace officer” under section 1.07(36) of the Penal Code and article 2.12(2) of the
Code of Criminal Procedure. Section 46.02 of the Penal Code makes it an offense to carry, among
other weapons, a handgun. See TEX. PENAL CODE ANN. 8 46.02(a) (Vernon Supp. 2002).
Additionally, section 46.03 of the Penal Code generally makes it an offense to carry a firearm in
certain public places. See id. 5 46.03. However, section 46.15 of the Penal Code provides that
sections 46.02 and 46.03 do not apply to “peace officers and neither section prohibits a peace officer
from carrying a weapon in this state, regardless of whether the officer is engaged in the actual
discharge of the officer’s duties while carrying the weapon[.]” Id. 5 46.15(a)(l). Under the Penal
Code, a “peace officer” is “a person elected, employed, or appointed as a peace officer under Article
2.12, Code of Criminal Procedure, Section 51.212 or 5 1.214, Education Code, or other law.” See
id. 6 l-07(36) (V emon 1994). As previously indicated, under article 2.12 of the Code of Criminal
Procedure, “constables, deputy constables, and those reserve deputy constables who hold a
permanentpeace oflcer license issued under Chapter 1701, Occupations Code” are, among others,
“peace officers.” TEX. CODEGRIM.PROC.ANN. art. 2.12(2) (emphasis added); see also Tex. Att’y
Gen. Op. No. JM- 1050 (1989) (statutory definition of “peace officer” rather than pre- 1973 case law
governs meaning of term). A constable’s status as a “peace officer” under this definition, in contrast
to reserve deputy constables, is not dependent on holding a permanent peace officer’s license issued
under chapter 1701 of the Occupations Code. See id.; Spradlin v. Jim Walter Homes, Inc., 34
The Honorable Hector M. Lozano - Page 7 (JC-0514)
S.W.3d 578, 580 (Tex. 2000) (while neither controlling nor inflexible, under doctrine of last
antecedent, qualifying phrases in statutes or the Constitution must be confined to the words and
phrases immediately preceding it); see also Tex. Att’y Gen. Op. No. DM-322 (1995) at 4 (Once an
individual assumes the office of a constable, “he is a legitimate peace officer, and as such, he is
excepted from the scope of section 46.02 of the Penal Code.“).
Finally, we conclude in the negative in response to your question whether a constable who
fails to provide evidence of permanent licensure is subject to prosecution under section 37.11 of the
Penal Code for impersonating a public servant. Section 37.11 of the Penal Code provides that it is
an offense to impersonate a public servant with the intent to induce another to rely on his or her
pretended official acts. See TEX. PEN. CODEANN. 6 37.1 l(a)(l) (Vernon Supp. 2002). Again, a
constable’s status as a “peace officer” under the Penal Code is not dependent on holding a permanent
peace officer’s license. See id. 8 1.07(36) (Vernon 1994); TEX. CODECFUM.PROC.ANN. art. 2.12(2);
see also Tex. Att’y Gen. Op. No. DM-322 (1995) at 3 (Once an individual assumes the office of
constable, “he is a legitimate peace officer. Thus, he would not be subject to prosecution under
section 37.11 of the Penal Code.“).
The Honorable Hector M. Lozano - Page 8 (JC-0514)
SUMMARY
Under section 86.0021(b) of the Local Government Code, a
constable who fails to provide evidence that he has been issued a
permanent peace officer’s license on or before the 270th day after
taking office “forfeits the office.” However, he is not automatically
removed from that office. Such a constable may continue to perform
his duties until he is removed from office by a judgement of a district
court in a quo warrant0 proceeding, which may be initiated by the
attorney general, the district attorney, or the county attorney. A
commissioners court has no formal role in a constable’s failure to
meet the licensure requirements under section 86.0021(b). It may,
but is not required to, request the attorney general or the district or
county attorney to initiate the quo warranto proceeding to remove the
constable. A “conditional reserve license” does not satisfy the
requirements of section 86.002 1(b) of the Local Government Code.
A constable’s authority to carry a gun is not derived from the
permanent peace officer’s license issued under chapter 1701 of the
Occupations Code. A constable is authorized to carry a gun because
he is a “peace officer” under section 1.07(36) of the Penal Code and
article 2.12(2) of the Code of Criminal Procedure. A constable who
fails to provide evidence of permanent peace officer licensure is not
subject to prosecution under section 37.11 of the Penal Code for
impersonating a public servant.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General, Opinion Committee