                        The Attorney              General of Texas
                                     September     5,    1980
MARK WHITE
Attorney General


                   Honorable Fred Toler                         Opinion No.   MW-2 3 3
                   Executive Director
                   Texas Commission on Law                      Re: Scope of article     4413(29aa)
                   Enforcement Officer Stds. & Educ.            exception for sheriffs
                   220-E Twi,n Towers Office BuildinS
                   1106Clayton Lane
                   Austin, Texas 78723

                   Dear Mr. Toler:

                          Attorney General Opinion MW-ill (1979) concerned the question of
                   whether an appointee who fills a vacancy in the office of sheriff commits a
                   crime if he accepts the appointment without first satisfying certain training
                   requirements at a school approved or operated by the Commission on Law
                   Enforcement Standards and Education.       The opinion concluded that the
                   appointee would be guilty of no crime because article 4413(29aa), V.T.C.S.,
                   “does not apply to persons occupyi% the elective office of sheriff.” You ask
                   if appointed sheriffs are nevertheless shject,  in part, to the strictures of
                   s&section 6(e) of article 4413(29aa).

                          The statute at issue, article 4413(29aa), establishes the Commission on
                   Law Enforcement Officer Standards and Education, describes its duties, and
                   empowers it, among other things, to certify persons as being qualified to be
                   peace officers.    See Attorney General Opinion H-1286 (19’78). Section 6(e)
                   thereof reads:     -

                                   Any person who accepts appointment as a peace
                              officer, or any person who appoints or retains an
                              indivi&ral as a peace officer, in violation of Sub-
                              sections (b) or (c) of this section [certification
                              requirements for peace officers1 or in violation of
                              Section 7A of this Act [certification requirements for
                              jailers and guards] shall be guilty of a mis-
                              demeanor. . . .

                          As we noted in Attorney General Opinion MW-Ill, section 6(f) of article
                   4413(29aa) expressly declares that nothinS in the act should be construed to
                   prevent an employ@ agency from gtablishing higher standards than those
                   established by the Commission, and continues:




                                                    p.    738
Honorable Fred Toler - Page Two        (MW-233)




               . . .nor shall anything herein be construed to affect any
           sheriff, constable or other law enforcement       officer elected
           under the provisions of the Constitution of the State of Texas.

       This language was accorded its plain meaning in Attorney General Opinion H-167
(1973), which concerned the authority of county attorneys and their assistants to carry
pistols in the discharge of various duties. County attorneys, like sheriffs, occupy
elective offices under our Constitution.   After noting that county attorneys and their
assistants in certain circumstances can be classified as peace officers, but that section
6(e) of article 4413(29aa) penalizes the appointment of a person as a peace officer or
his acceptance of the appointment, unless the appointee meets the qualifications
established by the Commission, Attorney General Opinion H-167 concluded, “These
provisions would apply to assistant county attorneys but not to county attorneys who
are exempt under 56(f) of the Act.”

      Thus, section 6(e) of article 4413(29aa) reaches deputy sheriffs, who are to be
prosecuted if they accept positions for which they have not qualified under the statute.
It does not reach persons occupying the office of sheriff, whether elected or appointed.
They are immune from prosecution under the statute for appointing or retaining such
deputies.   See Attorney General Opinions H-1002 (1977); M-1267 (1972); M-1026 (1971).
Appointed sheriffs are also immune from prosecution under that provision for having
accepted appointment as sheriff. Attorney General Opinion MW-lll(1979).

                                    SUMMARY

               Section 6(e) of article 4413(29aa), V.T.C.S., which penalizes
           the appointment of peace officers not certified by the Com-
           mission on Law Enforcement Officer Standards and Education,
           or the acceptance of such an appointment, does not reach
           sheriffs but does reach deputy sheriffs.
                                                                           ~3




                                             MARK      WHITE
                                             Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General




                                      P.   739
Honorable Fred Toler - Page Three        (NW-233)




APPROVED:
OPINION COMMlTTEE

C. Robert Heath, Chairman
Jon Bible
Charles Campbell
Susan Garrison
Rick Gilpin
Bruce Youngblood




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