                                          GREG       A B B O T T




                                              March 19, 2007


Mr. Timothy A. Braaten, Executive Director               Opinion No. GA-0532
Texas Commission on Law Enforcement
   Officer Standards and Education                       Re: Whether an open-enrollment charter school
6330 U.S. Highway 290 East, Suite 200                    is authorized to operate a commissioned police
Austin, Texas 78723                                      force (RQ-053 1-GA)

Dear Mr. Braaten:

        You ask whether an open-enrollment charter school is authorized to operate a commissioned
police force. '

        The Texas Commission on Law Enforcement Officer Standards and Education
("TCLEOSE") is responsible for, among other things, establishing reporting standards and
procedures for the appointment and termination of peace officers and reserve law enforcement
officers by a law enforcement agency. See TEX.OCC.CODEANN. 5 1701.153(a) (Vernon 2004).
Under TCLEOSE rules, an "agency" is a "law enforcement unit or other entity, whether public or
private, authorized by Texas law to appoint a person licensed or certified by [TCLEOSE]." 37 TEX.
ADMIN.CODE5 2 11.1(a)(5) (2006) (TCLEOSE, Definitions). Such agencies must comply with
TCLEOSE's reporting requirements to hire or appoint a licensee. See id. $ 217.7 (TCLEOSE,
Reporting the Appointment and Termination of a Licensee). TCLEOSE may deny or reject an
entity's application or report if the entity does not have the authority "to appoint persons in the
capacity of the license sought." Id.5 217.5(a)(7) (TCLEOSE, Denial and Cancellation).

        Section 37.081 of the Education Code authorizes the board of trustees of a school district to
commission peace officers and establish a school district police department; thus, such a board may
be an agency authorized to appoint a person licensed or certified by TCLEOSE. See TEX.EDUC.
CODEANN.5 37.08 1 (Vernon 2006). You state that in the past, TCLEOSE has likewise recognized
open-enrollment charter schools as agencies with authority to appoint TCLEOSE licensed or
certified persons. See Request Letter, supra note 1, at 2. You indicate that TCLEOSE has
reconsidered its position after an open-enrollment charter school received legal advice that such
a school lacks the legal authority to establish a commissioned police department. See id. After


        'See Letter from Timothy A. Braaten, Executive Director, Texas Commission on Law Enforcement Officer
Standards and Education, to Honorable Greg Abbott, Attorney General of Texas (Sept. 18, 2006) (on file with the
Opinion Committee, also available at http:llwww.oag.state.tx.us)[hereinafter Request Letter].
Mr. Timothy A. Braaten - Page 2                (GA-0532)



consulting with several attorneys, TCLEOSE has denied recent applications by open-enrollment
charter schools, some of which are appealing the denials. See id. at 2-3. Thus, you ask: "Are Open-
Enrollment Charter schools authorized by law to operate a commissioned police force like
independent school districts?" Id. at 3.

       Chapter 12 of the Education Code authorizes three different classes of charter schools:
home-rule school district charter schools (subchapter B), campus or campus program charter schools
(subchapter C), and-the subject of your inquiry-open-enrollment charter schools (subchapter D).
See TEX. EDUC.CODEANN. $8 12.002, .011, .052, .I01 (Vernon 2006). The State Board of
Education may grant a charter to operate an open-enrollment charter school to a public, private, or
independent institution of higher education, "an organization that is exempt from taxation under
Section 501(c)(3), Internal Revenue Code of 1986," or "a governmental entity." Id. 8 12.101(a).
The entity receiving approval of its charter is designated as the "charter holder." Id. 5 12.1012(1).

        Open-enrollment charter schools are generally "subject to federal and state laws and rules
governing public schools." Id. 5 12.103(a). However, the Education Code and rules adopted under
that code apply "only to the extent the applicability to an open-enrollment charter school . . . is
specifically provided. " Id. 5 12.103(b) (emphasis added).

        We have found no statute specifically providing that an open-enrollment charter school has
authority to commission or appoint peace officers. Section 12.104(b) of the Education Code lists
several provisions that specifically apply to open-enrollment charter schools. See id. 5 12.104(b).
While this list includes one provision from Education Code chapter 37 ("Discipline; Law and
Order"), the list does not include section 37.08 1,which authorizes school district police departments.
See id. $5 12.104(b)(2)(5),37.08 1. Section 37.08 1 in particular does not expressly authorize open-
enrollment charter schools to commission or appoint peace officers. Rather, section 37.081
expressly states only that "[tlhe board of trustees of any school district may employ security
personnel and may commission peace officers to carry out this subchapter." See id. 5 37.081(a)
(emphasis added). And while other provisions throughout the Education Code specifically state that
they apply to open-enrollment charter schools, none are pertinent to your inquiry. See, e.g., id.
55 7.003 (reserving educational functions not delegated to the Texas Education Agency or to the
State Board of Education to independent school districts and open-enrollment charter schools),
37.007(e) (requiring open-enrollment charter school to expel a student who brings a firearm to
school), id. 5 39.1 14(c) (Vernon Supp. 2006) (authorizing open-enrollment charter schools to receive
a certain high school allotment "in the same manner as a school district").

        Section 12.104(a) states that an open-enrollment charter school possesses "the powers
granted to schools under [Education Code, title 21.'' Id. 5 12.104(a) (Vernon 2006). While section
12.104(a) grants open-enrollment charter schools "the powers granted to schools," section 37.08 1
grants a school district's board of trustees-not a school-the authority to create a police
department. Id. (emphasis added); see id. 5 37.08 1. By contrast, the analogous provision for
home-rule school district charter schools states that a "home-rule school district has the powers and
entitlements granted to school districts and school district boards of trustees under this title,
including taxing authority." Id. 5 12.013(a) (Vernon Supp. 2006) (emphasis added). We believe that
Mr. Timothy A. Braaten - Page 3                (GA-0532)



had the Legislature intended an open-enrollment charter school to have all the powers of school
districts or school district boards of trustees, it would have said so in section 12.104(a) as it did in
section 12.0 13(a) for home-rule school district charter schools.

        Of course, other statutes may authorize certain charter holders such as institutions of higher
education to commission peace officers. See id. 5 5 1.203 (Vernon 2006). And an open-enrollment
charter school may receive the services of a peace officer of a political subdivision. See id.
5 25.090(b) (providing that if an open-enrollment charter school's governing body does not select
an attendance officer, "peace officers of the county in which the school is located" are to perform
the duties of an attendance officer); TEX.OCC.CODEANN. 5 1701.60l(1) (Vernon 2004) (defining
"school resource officer" as "a peace officer who is assigned by the officer's employing political
subdivision to provide . . . a police presence at a public school"). Finally, we do not suggest that the
Education Code denies a charter holder of an open-enrollment charter school any right it otherwise
has to employ security personnel. But to answer your question, neither section 37.08 1 nor any other
statute authorizes an open-enrollment charter school to operate or maintain a commissioned police
force.
Mr. Timothy A. Braaten - Page 4             (GA-0532)



                                    S U M M A R Y

                      The Education Code does not authorize an open-enrollment
              charter school to operate or maintain a commissioned police force.

                                            Very truly yours,




                                            ~ttor&deneral of Texas


KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
