Attorney General Opinion JM-1149

TEE ATTORNEY GENERAL OF TEXAS March 21, 1990 Honorable Ashley Smith Chairman Opinion NO. JM-1149 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 n o- 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