   OFFICE OF THE ATTORNFY GENERAL _ STATE OF TEXAS

   JOHN     CORNYN




                                                    April 29,2002



The Honorable Charles A. Rosenthal,           Jr.          Opinion No. JC-0497
Harris County District Attorney
1201 Franklin Street, Suite 600                            Re: Whether a peace officer is required to attend
Houston, Texas 77002                                       continuing education courses regarding enforce-
                                                           ment of traffic laws and the use of radar
                                                           equipment   (RQ-047 1-JC)


Dear Mr. Rosenthal:

         You have requested our opinion as to whether section 644.10 1(d) of the Transportation Code
currently requires that a peace officer attend continuing education courses “on the enforcement of
traffic and highway laws and on the use of radar equipment as prescribed by Subchapter F, Chapter
170 1, Occupations Code.“’ For the reasons set forth below, we conclude that, because of the
absence of any provisions in subchapter F, chapter 170 1, Occupations Code, that actually prescribe
such training, a peace officer is not required to attend such courses under that provision.

        Senate Bill 220 from the Seventy-seventh   Legislature               amended     section 644.101 of the
Transportation Code by adding subsection (d), which provides:

                       A sheriff, a deputy sheriff, or any peace officer that does not
                  attend continuing education courses on the enforcement of traffic and
                  highway laws and on the use of radar equipment as prescribed by
                  Subchapter F, Chapter 1701, Occupations Code, shall not enforce
                  traffic and highway laws.

TEX. TRANS.CODE ANN. 9 644.101(d)      (Vernon Supp. 2002); see also Act of June 15,2001,77th
Leg., RX, ch. 1227, 8 11, sec. 644.101 (d), 2001 Tex. Gen. Laws 2806,2809.

         Subchapter F of chapter 1701 of the Occupations Code directs the Commission on Law
Enforcement Officer Standards and Education (TCLEOSE) to “establish minimum curriculum
requirements for preparatory and advanced courses and programs for schools subject to approval
under Section 1701.25 1(c)( 1)” TEX. OCC. CODE ANN. 5 1701.253(a) (Vernon 2002). Subsection
(b) of section 1701.253 states that “the commission shall require courses and programs to provide



         ‘Letter from Honorable Charles A. Rosenthal, Jr., Harris County District Attorney, to Honorable John Comyn,
Texas Attorney General, at 1 (Nov. 27,200l)   (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable   Charles A. Rosenthal, Jr. - Page 2        (JC-0497)




training” in various areas, such as the investigation of child abuse or neglect, family violence, and
sexual assault; issues concerning sex offender characteristics; and crime victims’ rights. See id.
9 1701.253(b).     Subsection (c) directs the commission to “establish a statewide comprehensive
education and training program on civil rights, racial sensitivity, and cultural diversity.” See id.
fj 1701.253(c).

         The Seventy-seventh Legislature amended section 1701.253 to prescribe four new kinds of
instructional program, each of them designated subsection (e). One of them requires “an education
and training program on laws relating to the operation of motorcycles and to the wearing of
protective headgear by motorcycle operators and passengers”; and “education and training on
motorcycle operation profiling awareness and sensitivity training.” See id. 5 1701.253(e). The other
three versions of subsection (e) relate to “instruction in preventing dual arrest” for training officers
and recruits; “a statewide comprehensive education program on asset forfeiture”; and “a statewide
comprehensive education and training program on racial profiling.” See id. Subchapter F does not,
however, prescribe “continuing education courses on the enforcement of traffic laws and on the use
of radar equipment.” See id. $5 1701.25 l-.257. Subchapter H of chapter 1701, which specifically
deals with “continuing education required for peace officers,” also fails to prescribe the kind of
continuing education courses contemplated by section 644.101 (d) of the Transportation Code. See
id. $5 1701.35 l-.356. Nor does subchapter G, which treats “license requirements; disqualifications
and exemptions,” do so. See id. $9 1701.301-.316.

        A bill of the precise kind contemplated by section 644.10 1(d) of the Transportation Code was
introduced in the Seventy-seventh Legislature by Representative Yvonne Davis as House Bill 3233.
See Tex. H.B. 3233, 77th Leg., R.S. (2001). That bill would have added section 1701.258 to
subchapter F of chapter 1701 of the Occupations Code and would have provided:

                Sec.   1701.258.   CONTINUING   EDUCATION   FOR PEACE OFFICERS.      (a)
                A peace officer that currently does not attend continuing education
                courses on the enforcement of traffic and highway laws and does not
                attend a certification course on the use of radar equipment used to
                check the speed of a vehicle shall not enforce traffic and highway
                laws.

Id. The bill analysis for House Bill 3233 states:

                House Bill 3233 amends the Occupations Code to prohibit a peace
                officer from enforcing traffic and highway laws if the officer does not
                attend continuing education courses on the enforcement of traffic and
                highway laws and does not attend a certification course on the use of
                radar equipment used to check the speed of a vehicle.
The Honorable   Charles A. Rosenthal, Jr. - Page 3       (JC-0497)




HOUSECOMM.ONPUBLICSAFETY,BILLANALYSIS,Tex. H.B. 3233,77th Leg., R.S. (2001). House
Bill 3233 was not approved by the House Public Safety Committee, never reached the floor of the
House, and, consequently, never became law.

         Although House Bill 3233 did not detail the curriculum that would have been required
thereunder, TCLEOSE is granted broad authority to “adopt rules for the administration of’ chapter
 1701, and to “establish minimum standards relating to competence and reliability, including
education, [and] training.” TEX. Oct. CODEANN. 5 170 1.15 1(l)-(2) (Vernon 2002). Thus, had any
continuing education courses regarding enforcement of traffic and highway laws and use of radar
equipment been prescribed by the legislature under subchapter F, chapter 1701, TCLEOSE would
have been authorized to specify the curriculum for those courses.

         As we have noted, section 644.10 1(d) of the Transportation Code requires a peace officer to
“attend continuing education courses on the enforcement of traffic and highway laws and on the use
of radar equipment asprescribed by Subchapter F, Chapter 170 1, Occupations Code.” TEX. TRANSP.
CODE ANN. 8 644.101(d) (Vernon 2002) (emphasis added).              “Prescribed” means “laid down,
appointed, or fixed beforehand; ordained, appointed, set, fixed, defined.” XII OXFORDENGLISH
DICTIONARY 391 (2d ed. 1989). The legislature did not require a peace officer’s attendance at
courses merely authorized by particular statutes. It required such attendance at courses “set, fixed,
[and] defined” by those statutes. See id. In our opinion, the failure of the legislature to prescribe
“continuing education courses on the enforcement of traffic and highway laws and on the use of
radar equipment . . . [under] Subchapter F, Chapter 1701, Occupations Code,” is fatal to the current
efficacy of section 644.101(d) of the Transportation Code. TEX. TRANSP.CODEANN. 8 644.101(d)
(Vernon 2002). As the Texas Supreme Court has said, “[wlhen one statute references another
statute, one must look to the referenced statute to understand the referencing statute.” In re R.J.J.,
959 S.W.2d 185, 186 (Tex. 1998). In the case you present, the referenced statute does not exist.

       In Scappaticci v. Southwest Sav. & Loan Ass ‘n, 662 P.2d 13 1 (Ariz. 1983), the Supreme
Court of Arizona, sitting in bane, declared:

                The Arizona Legislature can incorporate by reference only such laws
                and regulations as exist at the time they enact legislation and cannot
                constitutionally adopt future changes which might occur.

Id. at 13 5. Other state courts have likewise insisted that incorporation by reference may include only
acts in existence at the time of the enactment of the referencing statute. See, e.g., Adelman v.
Onischuck, 135 N.W.2d 670,681 (Minn. 1965) (“our legislature has authority to enact laws which
refer to existing legislative acts”) (emphasis added); Univ. of S. C. v. Mehlman, 139 S.E.2d 771,774
(S.C. 1964) (“apart or all of an existing statute may by reference thereto be incorporated into another
statute.“) (emphasis added); Lassiter v. Northampton County Bd. of Elections, 102 S.E.2d 853,860
(N.C. 1958) (“‘In the absence of constitutional inhibition part or all of an existing statute may, by
specific and descriptive reference thereto, be incorporated into another statute.“‘) (emphasis added).
Because the statute referenced by section 644.101 (d) of the Transportation Code does not presently
The Honorable    Charles A. Rosenthal, Jr. - Page 4       (JC-0497)




exist, it necessarily follows that the referencing statute is, at this time, of no effect. As a result, a
peace officer is not currently required by section 644.101 (d) to attend continuing education courses
regarding enforcement of traffic and highway laws and the use of radar equipment.

                                         SUMMARY

                        A peace officer is not currently required by section 644.10 1(d)
                of the Transportation Code to attend continuing education courses
                regarding enforcement of traffic and highway laws and the use of
                radar equipment.




                                                JOHN     CORNYN
                                                Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
