      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-12-00740-CV



                                 Michael E. Ware, Appellant

                                               v.

   Texas Commission on Law Enforcement Officer Standards and Education, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
   NO. D-1-GN-11-000788, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING



                           MEMORANDUM OPINION


              Michael E. Ware filed a declaratory-judgment suit against the Texas Commission on

Law Enforcement Officer Standards and Education (“the Commission”) challenging the validity of

a Commission rule that renders him permanently ineligible to obtain a law-enforcement license

because he had previously been placed on deferred-adjudication community supervision for a felony

offense. See 37 Tex. Admin. Code § 217.1(a)(4)(A) (2013) (Tex. Comm’n on Law Enforcement

Officer Standards & Education, Minimum Standards for Initial Licensure); see also Tex. Civ. Prac.

& Rem. Code Ann. §§ 37.001-.011 (West 2008) (Uniform Declaratory Judgments Act); Tex. Gov’t

Code Ann. § 2001.038 (West 2008) (authorizing declaratory-judgment action to determine validity

or applicability of agency rule).1 On cross-motions for summary judgment, the trial court granted




       1
         We cite the current version of the Commission’s rules for convenience because there have
been no intervening amendments that are material to the issues on appeal.
summary judgment in the Commission’s favor, concluding that the challenged rule “is valid in all

respects.” Ware perfected this appeal. We will affirm the trial court’s judgment.


                                           DISCUSSION

               In this proceeding, Ware challenges the validity of section 217.1(a)(4)(A) of the

Commission’s rules. By its express terms, the rule precludes Ware from becoming a licensed

law-enforcement officer based on the undisputed fact that he previously pleaded guilty to a felony

offense and was placed on deferred adjudication. The challenged rule provides:


       (a) The commission shall issue a [law-enforcement] license to an applicant who
       meets the following standards:

       ....

       (4) community supervision history:

       (A) has not ever been on court-ordered community supervision or probation for any
       criminal offense above the grade of Class B misdemeanor or a Class B misdemeanor
       within the last ten years from the date of the court order . . . .


37 Tex. Admin. Code § 217.1(a)(4)(A) (emphasis added).

               By statute, certain convictions automatically preclude an applicant from obtaining a

law-enforcement license, including applicants who have been convicted of a felony offense. See

Tex. Occ. Code Ann. § 1701.312 (West 2012). The term “convicted” means that “a court enter[ed]

an adjudication of guilt against the person” under the laws of this state, another state, or the United

States. Id. The statute requires disqualification of such persons regardless of whether:




                                                  2
       (1) the sentence is subsequently probated and the person is discharged from
       community supervision;

       (2) the accusation, complaint, information, or indictment against the person is
       dismissed and the person is released from all penalties and disabilities resulting from
       the offense; or

       (3) the person is pardoned for the offense, unless the pardon is granted expressly for
       subsequent proof of innocence.


Id.

               Here, it is undisputed that Ware was successfully discharged from deferred

adjudication and was never convicted of the charged offense. Consequently, Ware asserts that the

Commission’s rule imposes additional burdens, conditions, and restrictions to licensure that exceed

and are inconsistent with section 1701.312 of the Commission’s enabling act, which expressly

prohibits only convicted felons from being licensed as law-enforcement officers. See id. Ware

contends that the enabling statute provides the exclusive grounds on which an applicant may be

denied a license based on his prior criminal history and, accordingly, that the Commission was not

authorized to enact the additional restrictions contained in rule 217.1(a)(4)(A).

               The scope of a validity challenge includes whether the agency had statutory authority

to promulgate the rule. City of Alvin v. Public Util. Comm’n of Tex., 143 S.W.3d 872, 878 (Tex.

App.—Austin 2004, no pet.). We presume that an agency rule is valid, and the party challenging the

rule has the burden of demonstrating its invalidity. See McCarty v. Texas Parks & Wildlife Dep’t,

919 S.W.2d 853, 854 (Tex. App.—Austin 1996, no writ). An agency’s rules must comport with

the agency’s authorizing statute. See Office of Pub. Util. Counsel v. Public Util. Comm’n of Tex.,

131 S.W.3d 314, 321 (Tex. App.—Austin 2004, pet. denied). An agency has only the authority

                                                 3
expressly provided by statute or necessarily implied to carry out the express powers the legislature

has given it. See Public Util. Comm’n of Tex. v. City Pub. Serv. Bd., 53 S.W.3d 310, 315-16 (Tex.

2001); Public Util. Comm’n of Tex. v. GTE–Southwest, 901 S.W.2d 401, 407 (Tex. 1995). To

establish a rule’s facial invalidity, the challenger must show that the rule (1) contravenes specific

statutory language, (2) is counter to the statute’s general objectives, or (3) imposes additional

burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions.

See id.

                In the present case, Ware challenges the validity of rule 217.1(a)(4)(A) only on the

third basis. Thus, the dispute presented turns principally on the construction of the Commission’s

enabling statute, which is a question of law that we review de novo. See First Am. Title Ins. Co.

v. Combs, 258 S.W.3d 627, 631 (Tex. 2008) (construction of statute is question of law subject

to de novo review); see also Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005) (summary judgment reviewed de novo); Provident Life & Accident Ins. Co v. Knott,

128 S.W.3d 211, 215 (Tex. 2003) (prescribing summary-judgment standards of review); FM Props.

Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000) (on cross motions for summary

judgment, appellate court must determine all questions presented and preserved and “render the

judgment that the trial court should have rendered”).

                In several provisions of chapter 1701 of the occupations code, the legislature

expressly granted the Commission the authority to set the minimum standards for obtaining a law-

enforcement license. Section 1701.151, which concerns the Commission’s general powers and rule-

making authority, grants the Commission the authority to “establish minimum standards relating to



                                                   4
competence and reliability, including education, training, physical, mental, and moral standards, for

licensing as an officer . . . .” Occ. Code § 1701.151. Sections 1701.251 and 1701.255 further

require the Commission to “establish and maintain training programs for officers” and to adopt rules

to establish minimum qualifications for a person to enroll in any such training program “that

provides instruction in defensive tactics, arrest procedures, firearms, or use of a motor vehicle for

law enforcement purposes.” Id. § 1701.251, .255. In addition, the Commission is required to

conduct an examination before issuing a law-enforcement license and to adopt rules that “establish

minimum qualifications for a person to be examined.” Id. § 1701.304. Finally, section 1701.502

specifies that, when a licensed law-enforcement officer is placed on deferred-adjudication

community supervision for a felony offense, the license is immediately suspended, and the

Commission is expressly imbued with the discretion to enact rules governing reinstatement of the

license when the license holder is released from community supervision. Id. § 1701.502. As

demonstrated by the foregoing provisions, chapter 1701 expressly confers broad regulatory discretion

on the Commission to establish eligibility standards. Section 1701.312 limits the Commission’s

discretion only by specifying a category of applicants that the Commission cannot accept for

licensure. Thus, while section 1701.312 does not disqualify an applicant in Ware’s position, it does

not limit the Commission’s discretion to adopt qualification standards that do.2


       2
          Our conclusion is further buttressed by a comparison of the provisions in chapter 1701 to
the provisions in chapter 53 of the occupations code. Chapter 53 governs the “consequences of
criminal conviction” on occupational licenses in general. See Tex. Occ. Code Ann. §§ 53.001-.105
(West 2012). Pertinent to the issues in the present case, section 53.021(c) expressly prohibits a
licensing authority from considering a person to have been “convicted of an offense” for purposes
of disqualifying that person from receiving a license or taking a licensing examination based on a
successfully discharged deferred adjudication. Id. § 53.021(c). What is notable about section 53.021

                                                 5
               We conclude that (1) the legislature expressly authorized the Commission to

promulgate rules of eligibility regarding licensing of law-enforcement officers, and (2) rule

217.1(a)(4)(A) is not contrary to or inconsistent with the Commission’s enabling statute.


                                        CONCLUSION

               For the reasons stated, we affirm the trial court’s summary judgment.



                                             _____________________________________________

                                             J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Field

Affirmed

Filed: May 16, 2013




is that (1) chapter 1701 is expressly exempted from chapter 53’s application, (2) law-enforcement
licenses are expressly exempted from section 53.021(c), and (3) no similar restriction regarding
deferred adjudications is included in chapter 1701. See id. §§ 53.002(2), .021(e)(1).

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