                             @ffict of tfy !ZIttornep@enerat
                                           &ate of lltexae
DAN MORALES                                January 17,1992
 r\TTORNEY
        GENERAL


     Honorable David Motley                           Opinion No. DM-75
     Kerr County Attorney
     323-B Earl Garrett                               Re: Construction       of title 37, section
     Kerrville, Texas 78028                           211.821(2), Texas Administrative      Code,
                                                      concerning   licensing requirements       for
                                                      constables, where constable       originally
                                                      elected before September 1. 1985 seeks
                                                      election to precinct newly created upon
                                                      the elimination       of original  precinct
                                                      through redistricting    (RQ-253)

     Dear Mr. Motley:

             You have requested an opinion from this office concerning licensure
     requirements for constables. Specifically, you ask whether a constable who has been
     continuously reelected to office since before 1985 would be required to become
     licensed as a peace officer if he were elected constable from a precinct created upon
     the demise of his original precinct through redistricting.      Section 415.053 of the
     Government Code provides that “[a]n officer.elected under the Texas Constitution
     or a statute or appointed to fill a vacancy in an elective office must be licensed by
     the Fexas Commission on Law Enforcement Gfficer Standards and Education] not
     later than two years after the date that the officer takes offtce.“t Section 415.015(c)
     of the code provides that chapter 415 “does not affect a constable or other officer or
     county jailer elected under the Texas Constitution              before September      1,
     1985 . . . .” Gov’t Code 0 415015(c).

            Chapter 415 of the Government Code concerns the education and licensing
     of law enforcement officers. The chapter establishes the Texas Commission on Law
     Enforcement Qfficer Standards and Education (TCLEOSE) and authorizes it to
     adopt rules to administer the implementation        of the statutory provisions. Id




            &stables    are eleckd under article V, don    18, of the TexasConstitution.




                                                    p.    375
Honorable    David Motley - Page 2             (DM-75)




 0 415010(l).   Accordingly, TCLEOSE has adopted the following regulation, which
provides, in pertinent part:

                 (i) The commission shall issue a permanent 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 revocation as any other peace officer license issued by
            the commission. This subsection shall not apply to:

                    (1) a sheriff; or

                     (2) a constable or any other constitutional peace
                officer who first assumed office before September 1,
                1985, even if reelected after that date unless there was a
                break in office and that officer was then reelected after
                that date to that or another office as a constitutional
                peace officer.


37 T.A.C. Q 211.82. In Attorney General Opinion JM-1149 (1990), this office
applied section 211.82 in the case of a constable first elected before January 1, 1981,
who left office December 31, 1984, and did not again assume it until January 1,
1989. The opinion upheld the validity of section 211.82 and found that the constable
in question was not entitled to the exception from the 211.82(i)(2) mandatory
licensure provision. In that opinion a break in service had clearly taken place. In
the present case, the constable has been in office continuously since before
September 1, 1985, and seeks to continue in office through reelection. The question
you pose is whether the elimination of the constable’s original precinct through
redistricting would effect a break in his office, denying the constable the section
211.82(i)(2) exemption and requiring him to obtain a permanent peace officer
license within two years of his election as constable of the newly created precinct.
We conclude that a constable would not have a break in service under these
circumstances, and thus would be exempt from the licensure requirements under
section 211.82(i)(2).

       Attorney General Opinion JM-1149 characterized section 211.82(i)(2) as a
“grandfather clause.” It exempts from the licensing requirement those who have




                                          P.   376
Honorable    David Motley - Page 3              (DM-75)




been in office continuously from the time immediately preceding September 1, 1985.
One who leaves office loses the exemption if elected or appointed at a later time to
the same or a different office as a constitutional peace officer. We do not believe
that a constable “reelected” from a newly-created precinct encompassing his former
precinct has left one office and assumed another in any but the most technical sense.
As you point out in your brief, “the abolished precinct is located entirely within the
geographic confines of the new precinct. All that will have changed is the precinct
number and the addition of territory.” Brief for Kerr County at 7-8.

         Texas law recognizes in other contexts that a change in precinct because of
redistricting does not result in a change of office for an incumbent or officer-elect
from the original precinct. The case of Maron v. Franz, for example, concerned a
constable elected to office for a precinct which thereafter was eliminated through
redistricting. Maron v. Frunz, 525 S.W.2d 714 (Tex. Civ. App.--Houston [14th Dist.]
1975, writ refd n.r.e.). Following the redistricting, the constable’s residence was
within a precinct created in the redistricting process, different from the one that he
was elected to serve. The court ruled not only that the constable was entitled to
serve out his term as constable of the precinct in which he resided (the new
precinct), but also that he was not required to take a new oath of office or file
another bond when redistricting became effective and he became the constable of
Precinct 5 instead of Precinct 6. The court wrote, “It does not matter that the
number of the precinct in which [the constable] resided was changed from 6 to 5;
he ‘continued’ in the office in which he had been elected and for which he had
already qualified by taking an oath and filing a bond. He was not required to so
qualify again.” Id. at 717-18 (emphasis added); see also Tex. Const. art. V, Q 18. We
believe that a court, if asked to decide whether a constable in the situation you
describe had left office so as to constitute a break in service for section 211.82(i)(2)
purposes, would agree that no break in service had occurred.             Therefore, the
constable would be entitled to exemption from the licensure requirements under
section 211.82(i) of title 37 of the Texas Administrative Code and sections 415.053
and 415.015(c) of the Government Code.

                                     SUMMARY

                 The elimination of a precinct through redistricting and the
            incumbent constable’s election as constable for the new precinct
            created by the redistricting does not result in a “break in office”
            for the constable within section 211.82(i)(2) of title 37 of the
            Texas Administrative Code where the new precinct differs from



                                           p.    377
Honorable    David Motley -’Page 4              (DM-75)




            the old only in its number and the addition of territory. Under
            such circumstances, a constable who had been continuously re-
            elected from his precinct since before September 1, 1985, would
            be exempt from the Government            Code section 415.053
            requirement of licensure as a peace officer through Government
            Code section 415.015(c) and title 37, section 211.82(i)(2), of the
            Texas Administrative Code.




                                               DAN      MORALES
                                               Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney Genera1

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Faith S. Steinberg
Assistant Attorney General




                                          p.    378
