                                  ATTORNEY           GENERAL OF TEXAS
                                              GREG       ABBOTT




                                               September 182006



The Honorable Frank J. Carte, Jr.                           Opinion No. GA-0463
Chair, Committee on Defense Affairs and
   State-Federal Relations                                  Re: Whether the fuearms standards of the
Texas House of Representatives                              Bureau of Customs and Border Protection’ meet
Post Office Box 2910                                        the criteria of Texas law (RQ-0463-GA)
Austin, Texas 78768-2910

Dear Representative      Carte:

         The federal Law Enforcement Officers Safety Act of 2004 (the “Act”)* permits an individual
who is a qualified retired law enforcement officer to carry concealed fuearms in any state if the
individual satisfies the Act’s requirements. One of those requirements is that the individual “has met
     the State’s standards for training and qualification for active law enforcement officers to carry
firearms.” 18 U.S.C.A. § 926C(c)(5) (West Supp. 2006). You ask whether the firearm standards
of the federal Bureau of Customs and Border Protection (the “Bureau”) meet the training and
qualification standards of the State of Texas3

         The state’s firearm training and qualifying standards for active law enforcement officers are
established by the Texas Commission on Law Enforcement Officer Standards and Education (the
“Commission”). Chapter 1701 of the Occupations Code requires the Commission to establish and
maintain training programs for peace officers or reserve law enforcement officers. See TEx. OCC.
CODEANN. § 1701.25l(a)~(Vemon2004);          see also id. 5 1701.001(4) (Vernon Supp. 2005) (defining
“peace officer” as “a person elected, employed, or appointed as a peace officer under” article 2.12
of the Code of Criminal Procedure or other law); TEx. CODE Cm.           PROC. ANN. art. 2.12 (Vernon
Supp. 2005) (listing peace officers). The initial training, including weapons proficiency training,
must be conducted by Commission staff or by other entities the Commission considers appropriate.
See TEX. Oct. CODE ANN. 5s 1701.251(a), ,256 (Vernon 2004); see also id. $§ 1701.308 (stating



           ‘The Bureau ofcustoms and Border Protection, formerly the Customs Service, see H. Dot. No. 108-32 (2003),
is also referred to as the United States Customs and Border Protection.

         ‘See Law Enforcement     Ofiicers Safety Act of 2004, Pub. L. No. 108-277, 118 Stat. 865

         ‘See Letter and attachments from Honorable Frank J. Cork, Jr., Chair, Committee on Defense Affairs and State-
Federal Relations, Texas House of Representatives, to Honorable Greg Abbott, Attorney General of Texas (Mar. 14,
2006) (on file with the Opinion Committee, also available al http:ilwww.oag.state.rx.us) [hereinafter Request Letter].
The Honorable Frank J. Carte, Jr. - Page 2           (GA-0463)




that an applicant for a peace officer license must demonstrate weapons proficiency), .307(5) (stating
that the Commission may issue a license to a person who completes required training and
demonstrates weapons proficiency). Thereafter, a peace officer must annually demonstrate firearm
proficiency to the employing agency: An agency that employs at least two peace offkers must
designate a fuearms proficiency officer and require each officer employed by the agency to
demonstrate weapons proficiency to the firearms proficiency officer at least annuahy. See id. 5
 1701.355(a). The Commission is directed to define weapons proficiency for the purposes of the
annual demonstration.     Id. 5 1701.355(c).

         The Commission has defined and set out the requirements for “firearm proficiency” in title
37, section217.21 ofthe Texas Administrative Code. See 37 TEX. ADMIN. CODE§ 217.21 (2006)
(“Firearm Proficiency Requirements”). “Firearm proficiency” means the “[s]uccessfuL completion
of the annual firearms proficiency requirements.” Id. § 211.1 (a)(27) (“Definitions”). Those annual
fuearm proficiency requirements include an external inspection to determine the safety and
functioning ofweapons, a demonstration in the care and cleaning of the weapons used, and “a course
of fire that meets or exceeds the minimum standards.” Id. 5 217,21(b)(lH3).        The minimum firing
standards generally require, for a variety of weapons, firing a minimum number of rounds within a
specifiedrangeofdistances.     See id. 5 217,21(c)(l)-(5). For instance, for handguns,therequirement
is “a minimum of 50 rounds, including at least five rounds of duty ammunition, fired at ranges from
point-blank to at least 15 yards with at least 20 rounds at or beyond seven yards, including at least
one timedreload.” Id. § 217.21(c)(l); see also id § 217.21(c)(2) (shotguns), (3) (rifles), (4) (patrol
rifles), (5) (folly automatic weapons). The “minimum passing percentage [must] be 70 for each
-firearm.” Id. 5 217.21(d).

         You have attached with your request the Bureau’s “Handgun Qualification Course” for our
review and determination       of whether it meets the state’s standard as promulgated by the
Commission.      See Request Letter, supra note 3, at 1 (Appendix 2). This document sets out the
various distances, rounds, positions, and time periods in which a service-authorized handgun must
be fired and the minimum qualifying score. See id. We cannot, however, determine as a matter of
law that the Bureau’s qualifying standards meet the state’s standard, as required by the Act. First,
that questionrequires a factual determination, and we cannot resolve questions of fact in the opinion
process. See, e.g., Tex. Att’y Gen. Op. Nos. GA-0156 (2004) at 6, 10 (stating that fact questions
cannot be answered in the opinion process); GA-0128 (2003) at 5 (stating that a question requiring
resolution of particular facts is “not one in which this office ordinarily engages in the opinion
process”). Second, suchadeterminationis      more appropriately made by the Commission, the agency
charged with promulgating and administering the state’s firearm proficiency standards. Finally, we
note that in addition to meeting the state’s firearm proficiency standards, an individual must satisfy
the other requirements of the Act for a qualified retired law enforcement officer and carry one of the
two types of identi,tication in order to carry concealed fuearms under the Act. See 18 U.S.C.A.
 § 926C(c)(lH7) (West Supp. 2006) (stating qualifiedretiredlaw      enforcement officer requirements),
 (d) (describing required photographic identification or photographic identification and certification
that a qualified retired law enforcement officer must carry).
The Honorable Frank J. Corte, Jr. - Page 3         (GA-0463)




                                      SUMMARY

                       The federal Law Enforcement Officers Safety Act of 2004
              (the “Act”) permits a qualified retired law enforcement ofticer to
              carry concealed firearms if the officer “has met            the State’s
              standards for training and qualification for active law enforcement
              officers to carry firearms.” 18 U.S.C.A. 5 926C(c)(5) (West Supp.
              2006). In Texas, a qualified retired law enforcement officer must
              meet the firearms proficiency standards set out in title 37, section
              217.21 of the Texas Administrative Code. We cannot, however,
              determine in an attorney general opinion that any particular agency’s
              qualifying standards meet the state’s standard, as required by the Act.




KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee
