                                              GREG        A B B O T T




                                                 August 15,2007


The Honorable M. Rex Emerson                               Opinion No. GA-0564
Kerr County Attorney
County Courthouse, Suite BA- 103                           Re: Whether 18 U.S.C. 5 926C preempts portions
700 Main Street                                            of Texas Occupations Code section 1701.357
Kerrville, Texas 78028                                     (RQ-0572-GA)

Dear Mr. Emerson:

        You state that the Kerr County Sheriff, while developing written procedures for issuing or
denying certificates of weapons proficiency to honorably retired peace officers under section
1701.357(c) of the Texas Occupations Code, discovered provisions in a federal law, 18 U.S.C.
5 926C, that he believes conflict with the state law.' Compare 18 U.S.C. 5 926C (Supp. IV 2004)
("Carrying of concealed firearms by qualified retired law enforcement officers"), with TEX.OCC.
CODEANN.5 1701.357(c) (Vernon Supp. 2006) ("Weapons Proficiency for Certain Retired Peace
Officers and Federal Criminal Investigators"). You therefore ask whether 18 U.S.C. 5 926C, which
authorizes certain retired peace officers to carry concealed handguns, preempts portions of section
1701.357 of the Texas Occupations Code. See 18 U.S.C. 5 926C(a) (Supp. IV 2004); TEX.OCC.
CODEANN. fj 1701.357(b)-(c) (Vernon Supp. 2006); Request Letter, supra note 1, at 1-2; Brief
attached to Request Letter, supra note 1, at 1-4. You ask in particular whether an honorably retired
peace officer who has a nonforfeitable right to retirement benefits-and who may therefore be
qualified to carry a concealed firearm under 18 U.S.C. fj 926C(c)(4)-but who is not yet receiving
the benefits may obtain a certificate of proficiency under section 1701.357(c) of the Texas
Occupations Code, which appears to be limited to retired officers who are receiving benefits. See
Brief attached to Request Letter, supra note 1, at 2. And you ask whether a retired peace officer who
carries a concealed firearm under 18 U.S.C. 5 926C(a) must obtain a certificate of proficiency under
section 1701.357(c) every year, as federal law requires, or every two years, as you suggest state law
requires. See id.




         'See Letter from Honorable M. Rex Emerson, Kerr County Attorney, to Honorable Greg Abbott, Attorney
General of Texas, at 1 (Feb. 15,2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable M. Rex Emerson - Page 2             (GA-0564)



I.     Relevant Law

       A.    State law

         Section 1701.357 permits an "honorably retired peace officer" to obtain, in certain
circumstances, a certificate of weapons proficiency from the local agency from which the officer
retired:

                     (b) The head of a state or local law enforcement agency may
              allow an honorably retired peace officer an opportunity to
              demonstrate weapons proficiency if the retired officer provides to the
              agency a sworn affidavit stating that:

                           (1) the officer honorably retired after not less than a total
              of 15 years of service as a commissioned officer with one or more
              state or local law enforcement agencies;

                           (2) the officer's license as a commissioned officer was
              not revoked or suspended for any period during the officer's term of
              service as a commissioned officer; and

                          (3) the officer has no psychological or physical disability
              that would interfere with the officer's proper handling of a handgun.

                      (c) The agency shall establish written procedures for the
              issuance or denial of a certificate of proficiency under this section.
              The agency shall issue the certificate to a retired officer who
              satisfactorily demonstrates weapons proficiency under Subsection (b),
              provides proof that the officer is receiving retirement benefits on the
              basis of service with a state or local law enforcement agency, and
              satisfies the written procedures established by the agency. The
              agency shall maintain records of any retired officer who holds a
              certificate issued under this section.

                       (d) A certificate issued under this section expires on the
              second anniversary of the date the certificate was issued. A retired
              officer to whom this section applies may request an annual evaluation
              of weapons proficiency and issuance of a certificate of proficiency as
              needed to comply with applicable federal or other laws.



                       (i) On request of a retired officer who holds a certificate of
               proficiency under this section, the head of a state or local law
The Honorable M. Rex Emerson - Page 3                      (GA-0564)



                  enforcement agency may issue to the retired officer identification that
                  indicates that the officer retired from the agency. An identification
                  under this subsection must include a photograph of the retired officer.

TEX. OCC. CODE ANN. 8 1701.357 (Vernon Supp. 2006) (emphasis added); see also id.
5 1701.355(a) (Vernon 2004) (requiring a local law enforcement agency to designate a firearms
proficiency officer if the agency employs more than one peace officer); 37 TEX.ADMIN.CODE
$8 217.21(c), 221.3 1(c) (2007) (Tex. Comm'n on Law Enforcement Officer Standards & Educ.,
Firearms Proficiency Requirements; Retired Peace Officer Firearms Proficiency).

        Texas law also provides another means by which a retired peace officer may obtain a
certificate of proficiency. Under Texas Government Code chapter 41 1, subchapter H, a certificate
of proficiency is necessary to apply to the Department of Public Safety (the "DPS") for a license to
                                  ~ TEX.GOV'TCODEANN. 5 4 11.171(3), (5) (Vernon Supp. 2006)
carry a concealed h a n d g ~ n .See
(defining "concealed handgun" and "handgun"). Section 41 1.199 authorizes the DPS to issue a
concealed-handgun license to an "honorably retired and physically and emotionally fit" peace officer
so long as the peace officer demonstrates the appropriate proficiency:

                          (c) The [DPS] may issue a license under this subchapter to
                  an applicant [who is] honorably retired and physically and
                  emotionally fit to possess a handgun. In this subsection, "honorably
                  retired" means the applicant:



                              (3) is entitled to receive a pension or annuity for service
                  as a law enforcement officer or is not entitled to receive a pension or
                  annuity only because the law enforcement agency that employed the
                  applicant does not offer a pension or annuity to its employees.



                          (e) A retired peace officer who obtains a license under this
                  subchapter must maintain, for the category of weapon licensed, the
                  proficiency required for a peace officer under [Occupations Code
                  section 1701.355].3 The [DPS] or a local law enforcement agency


         2A certificate of proficiency is also necessary to except an honorably retired peace officer from provisions in
the Texas Penal Code that criminalize the carrying of a f ~ e a r mparticularly
                                                                    ,           in certain locations. See TEX.PENALCODE
ANN.4 46.02(a) (Vernon 2003), 54 46.03(a), .15(a)(5) (Vernon Supp. 2006); see also id. 5 46.01(3), (5) (Vernon 2003)
(defining the terms "firearm" and "handgun").

        3The statute actually requires a retired peace officer to maintain "the proficiency required for a peace officer
under Section 4 15.035." TEX.GOV'TCODEANN.4 41 1.199(e) (Vernon 2005). Government Code section 41 5.035 was
                                                                                                          (continued.. .)
The Honorable M. Rex Emerson - Page 4                    (GA-0564)



                 shall allow a retired peace officer of the [DPS] or agency an
                 opportunity to annually demonstrate the required proficiency. The
                 proficiency shall be reported to the [DPS] on application and renewal.

Id. § 41 1.199(c), (e) (Vernon 2005) (footnote added); see also TEX.OCC.CODEANN.5 1701.355(c)
(Vernon 2004) (requiring the Texas Commission on Law Enforcement Officer Standards and
Education to "define weapons proficiency for purposes of this section"); 37 TEX.ADMIN.CODE
5 221.3 (2007) (Tex. Comm'n on Law Enforcement Officer Standards & Educ., Peace Officer
Proficiency) (setting out proficiency requirements for peace officers). Though section 41 1.199(c)
pertains primarily to licenses, not certificates of proficiency, subsection (e) indicates that an applicant
must demonstrate proficiency as required by Occupations Code section 1701.355. See TEX.GOV'T
CODEANN.5 4 11.199(e) (Vernon 2005).

        B.     Federal law

       Having set out the relevant state law, we turn to the federal statute you raise, 18 U.S.C.
5 926C. See Request Letter, supra note 1, at 1. Section 926C authorizes a "qualified retired law
enforcement officer" to carry a concealed firearm in certain circumstances:

                         (a) Notwithstanding any other provision ofthe law of any State
               or any political subdivision thereof, an individual who is a qualified
               retired law enforcement officer and who is carrying the identification
               required by subsection (d) may carry a concealed firearm that has been
               shipped or transported in interstate or foreign commerce, subject to
               subsection (b) [stating that section 926C does not affect private entities',
               local governments', or states' authority to restrict the possession of
               concealed firearms on their own property].



                        (c) As used in this section, the term "qualified retired law
                 enforcement officer" means an individual who-



                             (4) has a nonforfeitable right to benefits under the
                 retirement plan of the agency . . . .

                          (d)      The identification required by this subsection is-



         '(...continued)
repealed in 1999 and recodified as Occupations Code section 1701.355. See Act of May 13, 1999, 76th Leg., R.S., ch.
388, $5 1, 6(b)(l), 7, 1999 Tex. Gen. Laws 1431,2223,2440.
The Honorable M. Rex Emerson - Page 5                         (GA-0564)



                                (1) a photographic identification issued by the agency
                  from which the individual retired from service as a law enforcement
                  officer that indicates that the individual has, not less recently than one
                  year before the date the individual is carrying the concealed firearm,
                  been tested or otherwise found by the agency to meet the standards
                  established by the agency for training and qualification for active law
                  enforcement officers to carry a firearm of the same type as the
                  concealed firearm; or

                             (2)(A) a photographic identification issued by the
                  agency from which the individual retired from service as a law
                  enforcement officer; and

                                  (B) a certification issued by the State in which the
                  individual resides that indicates that the individual has, not less
                  recently than one year before the date the individual is carrying the
                  concealed firearm, been tested or otherwise found by the State to
                  meet the standards established by the State for training and
                  qualification for active law enforcement officers to carry a firearm of
                  the same type as the concealed firearrn.



18 U.S.C.    5 926C(a), (c)-(d)      (Supp. IV 2004) (emphasis added).

11.      Analysis

        You suggest that 18 U.S.C. 5 926C preempts section 1701.357 of the Texas Occupations
Code in relevant part. See Request Letter, supra note 1, at 1. "Federal preemption of state law is
grounded in the Supremacy Clause of the United States Constitution," which declares the laws of
the United States to be "the supreme Law of the Land." U.S. CONST.art. VI, cl. 2; Delta Air Lines,
Inc. v. Black, 116 S.W.3d 745,748 (Tex. 2003). Federal law thus preempts conflicting state law,
and preempted state law has no effect. See Mills v. WarnerLambert Co., 157 S.W.3d 424,426 (Tex.
2005) (per curiam) (citing Maryland v. Louisiana, 451 U.S. 725,746 (1981); Am. Cyanamid Co. v.
Geye, 79 S.W.3d 21,23 (Tex. 2002)).

       The federal law at issue here expressly preempts state law to the extent the state law conflicts
with the federal law.4 See 18 U.S.C. 5 926C(a) (Supp. IV 2004) ("Notwithstanding any other


         4Federallaw may preempt state law in one of three ways: (1) Congress may preempt "all state law in a particular
field" explicitly; (2) Congress may preempt state law implicitly "when the scheme of federal regulation is sufficiently
comprehensive to reasonably infer that Congress has 'left no room' for supplementary state regulation"; or (3) "even
where Congress has not displaced state regulation in a particular field, federal law will nullify state law to the extent they
                                                                                                                (continued...)
The Honorable M. Rex Emerson - Page 6                  (GA-0564)



provision of the law of any State . . . ."). Such a conflict arises when an individual physically cannot
comply with both the federal and state statutes or when the state law "stands as an obstacle" to
accomplishing and executing Congress's full purposes and objectives. CJ: Turoff; 222 S.W.3d at
668-69 (explaining conflict preemption) (quoting Wis.Pub. Intervenor v. Mortier, 501 U.S. 597,605
(1991)).

        The federal statute, 18 U.S.C. 5 926C, does not preempt Texas Occupations Code section
1701.357. The federal law authorizes a qualified retired law enforcement officer to carry a concealed
firearm if the retired officer carries one of two forms of identification indicating that the officer has,
within one year before the date of carrying the concealed firearm, passed a test or been found to meet
certain standards "for training and qualification for active law enforcement officers to carry a firearm
of the same type as the concealed firearm." 18 U.S.C. 5 926C(d) (Supp. IV 2004). Thus, the retired
officer may carry (1) a photographic identification indicating that agency from which the officer
retired found the officer to meet agency-established standards, or (2) a photographic identification
issued by the agency from which the officer retired as well as a State-issued certification indicating
that the State has found the officer to meet State-established standards. Id.; see also H.R. REP.NO.
108-560, at 12 (2004), as reprinted in 2004 U.S.C.C.A.N. 805,809 (declaring 18 U.S.C. 5 926C's
intent). Section 1701.357 of the Texas Occupations Code, by contrast, does not by itself authorize
a retired law enforcement officer to carry a concealed handgun; it pertains only to a method by which
certain retired officers may obtain the necessary certification and photo identification. See TEX.OCC.
CODEANN.5 1701.357 (Vernon Supp. 2006).

         As you suggest, Texas Occupations Code section 1701.357 does not provide a means by
which a retired officer who has a "nonforfeitable right to benefits" but who is not yet receiving
benefits may obtain a certificate of proficiency, and you perceive this as an obstacle to exercising
the authority to carry a firearm granted under federal law. See 18 U.S.C. 5 926C (Supp. IV 2004);
TEX.OCC.CODEANN.5 1701.357(c) (Vernon Supp. 2006); Request Letter, supra note 1, at 1. A
retired officer who is entitled to but not yet receiving benefits may, however, become certified to
carry a concealed weapon under section 4 11.199 of the Texas Government Code, which applies to
all retired officers who are "entitled to receive a pension or annuity for service as" an officer, if the
retired officer demonstrates proficiency under section 1701.355 of the Texas Occupations Code.
TEX.GOV'TCODEANN.5 41 1.199(~)(3),(e) (Vernon 2005); TEX.OCC.CODEANN.5 1701.355(c)
(Vernon 2004); 37 TEX.ADMTN.CODE5 221.3 (2007) (Tex. Comm'n on Law Enforcement Officer
Standards & Educ., Peace Officer Proficiency) (setting out proficiency requirements for peace
officers); see also supra note 3 (explaining that section 1701.355 of the Texas Occupations Code
was recodified from section 415.035 of the Texas Government Code). In this way, all officers who
are qualified under federal law to carry a concealed handgun may obtain the prerequisite




          4(. ..continued)

actually conflict." Turoffv. McCaslin, 222 S.W.3d 664,668 (Tex. App.-Waco 2007, no pet.); In re Global Santa Fe
Corp., No. 14-06-00625-CV, 2006 WL 3716495, at *3 (Tex. App.-Houston [14th Dist.] Dec. 19, 2006, pet. filed);
accord Mills, 157 S.W.3d at 426-27.
The Honorable M. Rex Emerson - Page 7                      (GA-0564)



~ertification.~See 18 U.S.C. 5 926C(d)(2)(B) (Supp. IV 2004). Looking at the Texas statutory
scheme as a whole, therefore, section 1701.357 of the Occupations Code and section 41 1.199 of the
Government Code provide means by which all honorably retired officers who are entitled to or
receiving a pension or annuity from their employing agencies may obtain the certificate of weapons
proficiency required by 18 U.S.C. 5 926C.

        You also suggest that section 1701.357(c) of the Texas Occupations Code, which indicates
that a certificate issued under section 1701.357 is effective for two years, conflicts with the
requirement in 18 U.S.C. 5 926C that a qualified retired law enforcement officer obtain certification
annually. See Request Letter, supra note 1, at 2. But section 1701.357(d) expressly permits a retired
officer to "request an annual evaluation of weapons proficiency and issuance of a certificate of
proficiency." TEX.OCC.CODEANN.        5 1701.357(d)(Vernon Supp. 2006). Thus, section 1701.357(d)
does not preclude a retired officer who may obtain certification under that section from certifying
annually, consistently with the requirements of 18 U.S.C. 5 926C. Moreover, to directly answer your
question, because the federal law requires annual certification, a retired peace officer who wishes
to carry a concealed firearm in Texas must be certified annually. See 18 U.S.C. § 926C(d)(l), (2)(B)
(Supp. IV 2004).




          'The Texas Legislature adopted a bill that amends section 1701.357(c) by replacing the requirement that the
officer be receiving retirement benefits with a requirement that the officer be "entitled to receive a pension or annuity
for service with a state or local law enforcement agency or is not entitled to receive a pension or annuity only because
the [employing] law enforcement agency. . . does not offer a pension or annuity." Act of May 24,2007,80th Leg., R.S.,
H.B. 638, 3 2 (to be codified at TEX.OCC.CODEANN. 1701.357(c)). In our opinion, an officer who is "entitled to
receive a pension or annuity" under the amendment to section 1701.357(c) has a nonforfeitable right to benefits for
purposes of 18 U.S.C. 8 926C(c)(4). See 18 U.S.C. 3 926C(c)(4) (Supp. IV 2004). The amended section 1701.357(c)
consequently will permit a retired law enforcement officer who is entitled to receive a pension or annuity to obtain a
proficiency certificate under section 1701.357, whether or not the officer is already receiving benefits. See Act of May
24, 2007, 80th Leg., R.S., H.B. 638, 5 2 (to be codified at TEX.OCC. CODEANN.3 1701.357(c)). Nevertheless, the
amendments to section 1701.357(c) apply only to applications for weapons proficiency filed on or after September 1,
2007. See id. 5 4(b). An application filed before that date is subject to the current, unamended statute. See id. The
conclusions reached in this opinion thus apply only to applications filed before September 1,2007.
The Honorable M. Rex Emerson - Page 8            (GA-0564)



                                      S U M M A R Y

                      A federal statute, 18 U.S.C. 8 926C, which authorizes a
              qualified retired law enforcement officer to carry a concealed firearm
              if the officer also carries proof that he or she has demonstrated
              weapons proficiency under state law, does not preempt Texas
              Occupations Code section 1701.357, which provides a means by
              which some honorably retired peace officers may obtain the proof
              required by federal law. Those retired peace officers who cannot
              obtain certification under section 1701.357 may do so under section
              4 11.199 of the Texas Government Code and section 1701.355 of the
              Texas Occupations Code.

                      An honorably retired peace officer who is certified as
              proficient under Texas Occupations Code section 1701.357 must
              recertify on an annual basis.

                                             Very truly yours,




                                       -     GREGPBoTT
                                             Attorney eneral of Texas


KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
