If redistricting abolishes a Texas constable's precinct, does he have to get a peace officer license?

Texas AG Opinion DM-0075: Constable Licensing and Precinct Redistricting

Plain-English summary

The Kerr County Attorney asked whether a constable who had been continuously reelected since before 1985 would have to become a licensed peace officer if his original precinct was abolished through redistricting and he was then elected constable of a newly created precinct. The Attorney General concluded he would not, as long as the new precinct simply absorbed the old one.

The framework starts with Government Code section 415.053, which requires an officer elected or appointed under the Texas Constitution to be licensed by the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) within two years of taking office. But section 415.015(c) says chapter 415 does not affect a constable or other officer elected under the constitution before September 1, 1985. TCLEOSE's rule, 37 T.A.C. section 211.82(i), issues permanent licenses to peace officers elected or appointed after September 1, 1985 who meet the standards, but subsection (i)(2) exempts a constable or other constitutional peace officer who first took office before that date, even if reelected later, unless there was a break in office and the officer was then reelected to that or another office. The question was whether redistricting that eliminated the constable's precinct created such a break.

The opinion said it did not. It read section 211.82(i)(2) as a grandfather clause for those continuously in office since immediately before September 1, 1985, and concluded that a constable reelected from a new precinct that encompasses his former precinct has not left one office and taken another in any but the most technical sense. The county attorney's brief had explained that the abolished precinct sat entirely within the new precinct, with only the precinct number and added territory changing. The opinion drew support from Maxon v. Franz, where a court held that a constable whose precinct was eliminated through redistricting continued in the same office, was entitled to serve out his term as constable of the precinct where he resided, and did not have to take a new oath or file a new bond when his precinct number changed. The opinion predicted a court would likewise find no break in service here, so the constable stayed exempt under section 211.82(i), Government Code section 415.053, and section 415.015(c).

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The peace officer licensing statutes were later recodified into the Occupations Code, the commission was renamed (now the Texas Commission on Law Enforcement), and the administrative rules have changed. Verify current law before relying on anything here.

Common questions

Did a constable lose his licensing exemption when redistricting abolished his precinct?
Not under this 1992 opinion, where the new precinct absorbed the old one. The opinion concluded that was not a "break in office" under 37 T.A.C. section 211.82(i)(2), so a pre-1985 constable kept the exemption.

What is the 'grandfather clause' the opinion relied on?
Section 211.82(i)(2) and Government Code section 415.015(c) exempt constables and other constitutional peace officers who first took office before September 1, 1985, even if reelected later, from the licensing requirement, as long as there was no break in office.

What counts as a 'break in office' that would end the exemption?
Under the rule, leaving office and then being elected or appointed at a later time to the same or a different constitutional peace officer position. The opinion concluded a redistricting that only renumbers and enlarges a precinct, with the incumbent continuously serving, is not such a break.

What did Maxon v. Franz add?
That case held a constable whose precinct was eliminated through redistricting continued in the same office, could serve out his term as constable of the precinct where he resided, and did not have to take a new oath or file a new bond when his precinct number changed.

Background and statutory framework

Constables are elected under article V, section 18 of the Texas Constitution. Government Code chapter 415 governs the education and licensing of law enforcement officers and established TCLEOSE, authorizing it to adopt administering rules (Gov't Code § 415.010(1)). Section 415.053 requires an officer elected or appointed under the constitution to be licensed within two years of taking office, while section 415.015(c) provides that chapter 415 does not affect a constable or other officer or county jailer elected under the constitution before September 1, 1985. The implementing rule, 37 T.A.C. section 211.82(i), issues permanent peace officer licenses to those elected or appointed after September 1, 1985 who meet the minimum standards, with subsection (i)(2) exempting constitutional peace officers who first assumed office before that date unless a break in office and later reelection occurred. The opinion built on its prior Opinion JM-1149 (1990), which had applied section 211.82 to a constable who left office at the end of 1984 and did not return until 1989 (a clear break, no exemption), and distinguished the continuous-service situation here using Maxon v. Franz.

Citations

Constitutional, statutory, and regulatory provisions:

• Tex. Const. art. V, § 18 (election of constables)
• Gov't Code § 415.053 (licensing requirement within two years of taking office)
• Gov't Code § 415.015(c) (pre-September 1, 1985 officers unaffected)
• Gov't Code § 415.010(1) (TCLEOSE rulemaking authority)
• 37 T.A.C. § 211.82 (permanent peace officer license; subsection (i)(2) grandfather exemption)

Cases:

• Maxon v. Franz, 525 S.W.2d 714 (Tex. Civ. App.-Houston [14th Dist.] 1975, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0075
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0075.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

January 17, 1992

Honorable David Motley
Kerr County Attorney
323-B Earl Garrett
Kerrville, Texas 78028

Opinion No. DM-75

Re: Construction of title 37, section 211.82(i)(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 [Texas Commission on Law Enforcement Officer Standards and Education] not later than two years after the date that the officer takes office." 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 § 415.015(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 Officer Standards and Education (TCLEOSE) and authorizes it to adopt rules to administer the implementation of the statutory provisions. Id. § 415.010(1).[1] 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. § 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 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 Maxon v. Franz, for example, concerned a constable elected to office for a precinct which thereafter was eliminated through redistricting. Maxon v. Franz, 525 S.W.2d 714 (Tex. Civ. App.--Houston [14th Dist.] 1975, writ ref'd 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, § 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 the old only in its number and the addition of territory. Under such circumstances, a constable who had been continuously reelected 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 General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Faith S. Steinberg
Assistant Attorney General

[1] Constables are elected under article V, section 18, of the Texas Constitution.