Can a Texas open-enrollment charter school have its own police department?

TX AG Opinion GA-0532: Can an open-enrollment charter school operate its own police force?

Plain-English summary

The executive director of the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) asked whether an open-enrollment charter school may operate a commissioned police force the way an independent school district can. The question mattered because TCLEOSE had previously recognized some charter schools as law enforcement "agencies" allowed to appoint licensed peace officers, then reconsidered after one charter school got legal advice that it lacked that authority. TCLEOSE began denying applications, and some schools were appealing.

The Attorney General concluded that the Education Code does not authorize an open-enrollment charter school to run a commissioned police force. Section 37.081 of the Education Code lets the board of trustees of a school district commission peace officers and create a school district police department. But the Education Code, and rules under it, apply to open-enrollment charter schools only to the extent the law specifically says so, and nothing specifically extends section 37.081 to charter schools. The opinion pointed out that section 12.104(a) gives a charter school "the powers granted to schools," while section 37.081 gives the police-department power to a school district's board of trustees, not to a "school." By contrast, the provision for home-rule school district charter schools (section 12.013(a)) expressly grants the powers of both school districts and their boards of trustees. The Attorney General reasoned that if the Legislature had wanted open-enrollment charter schools to have all the powers of school districts and their boards, it would have said so the way it did for home-rule charters.

The opinion left two paths open. Some charter holders, like institutions of higher education, may have separate statutory authority to commission peace officers. And any open-enrollment charter school may still use the peace officers of a local political subdivision (for example, a school resource officer) and may employ its own security personnel. What it cannot do is stand up its own commissioned police department under the Education Code.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Education Code's charter-school provisions in chapter 12 and the school-police provision in section 37.081 have been amended several times since 2007. Anyone relying on this opinion should confirm the current text of these statutes and whether later legislation has changed what charter schools may do, because the law on charter-school police forces has been a recurring subject for the Legislature.

Who this opinion affected (as of 2007)

Open-enrollment charter schools: The opinion told them they could not operate or maintain their own commissioned police force under the Education Code as it then stood. It noted they could still employ security personnel and rely on peace officers of the political subdivision where the school sat.

TCLEOSE: The opinion supported the Commission's reconsidered position that an open-enrollment charter school was not an "agency" authorized to appoint TCLEOSE-licensed peace officers for its own police department, since TCLEOSE could reject an applicant lacking authority to appoint persons in the capacity sought.

Independent school districts and home-rule charter schools: The opinion confirmed the contrast that drove its analysis. A school district board of trustees (and a home-rule school district, which gets the powers of both districts and boards) had express authority to create a police department; an open-enrollment charter school did not.

Common questions

Could a Texas open-enrollment charter school have its own police department in 2007?
No. The opinion concluded the Education Code did not authorize an open-enrollment charter school to operate or maintain a commissioned police force.

Why can a regular school district do this but not a charter school?
The opinion explained that section 37.081 grants the power to a school district's board of trustees, and the Education Code applies to open-enrollment charter schools only where it specifically says so. No provision specifically gave charter schools the section 37.081 police-department power.

Did this leave charter schools with no security options?
No. The opinion said a charter school could still employ security personnel and could rely on the peace officers of the political subdivision where it is located, such as a school resource officer assigned by a local agency.

Did the opinion apply to every kind of charter school?
It addressed open-enrollment charter schools under subchapter D of chapter 12. It distinguished home-rule school district charter schools, which by statute (section 12.013(a)) receive the powers of school districts and their boards of trustees.

Background and statutory framework

TCLEOSE sets reporting standards and procedures for the appointment and termination of peace officers by a "law enforcement agency," defined in its rules as a unit or entity authorized by Texas law to appoint a TCLEOSE licensee, and may deny or reject an entity that lacks authority to appoint persons in the capacity sought (Tex. Occ. Code Ann. § 1701.153(a) (Vernon 2004); 37 Tex. Admin. Code §§ 211.1(a)(5), 217.7, 217.5(a)(7) (2006)).

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 (Tex. Educ. Code Ann. § 37.081(a) (Vernon 2006)). Chapter 12 authorizes three classes of charter schools, including open-enrollment charter schools under subchapter D, which may be chartered to a higher-education institution, a 501(c)(3) organization, or a governmental entity (Tex. Educ. Code Ann. §§ 12.002, .011, .052, .101, 12.101(a), 12.1012(1) (Vernon 2006)). Open-enrollment charter schools are generally subject to laws governing public schools, but the Education Code and its rules apply to them "only to the extent the applicability ... is specifically provided" (Tex. Educ. Code Ann. § 12.103(a), (b) (Vernon 2006)).

The list of provisions that specifically apply to open-enrollment charter schools does not include section 37.081 (Tex. Educ. Code Ann. § 12.104(b), (b)(2)-(5) (Vernon 2006)). Provisions that do apply (for example, expelling a student who brings a firearm to school, or receiving a high school allotment) are not pertinent to police authority (Tex. Educ. Code Ann. §§ 7.003, 37.007(e), 39.114(c) (Vernon 2006 & Supp. 2006)). Section 12.104(a) grants open-enrollment charter schools "the powers granted to schools," whereas section 37.081 grants the police-department power to a board of trustees, not to a school, and the home-rule charter provision grants the powers of both districts and boards (Tex. Educ. Code Ann. §§ 12.104(a), 12.013(a) (Vernon 2006 & Supp. 2006)). Other statutes may let certain charter holders such as higher-education institutions commission peace officers, and a charter school may receive the services of a political subdivision's peace officer or a school resource officer (Tex. Educ. Code Ann. §§ 51.203, 25.090(b) (Vernon 2006); Tex. Occ. Code Ann. § 1701.601(1) (Vernon 2004)).

Citations

Statutes:

• Tex. Occ. Code Ann. §§ 1701.153(a), 1701.601(1) (Vernon 2004)
• 37 Tex. Admin. Code §§ 211.1(a)(5), 217.5(a)(7), 217.7 (2006)
• Tex. Educ. Code Ann. §§ 12.002, .011, .052, .101, 12.013(a), 12.101(a), 12.1012(1), 12.103(a)-(b), 12.104(a)-(b), 12.104(b)(2)-(5) (Vernon 2006 & Supp. 2006)
• Tex. Educ. Code Ann. §§ 37.007(e), 37.081(a), 7.003, 39.114(c) (Vernon 2006 & Supp. 2006)
• Tex. Educ. Code Ann. §§ 51.203, 25.090(b) (Vernon 2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0532
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0532.pdf

Original opinion text

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

GREG ABBOTT

March 19, 2007

Mr. Timothy A. Braaten, Executive Director
Texas Commission on Law Enforcement Officer Standards and Education
6330 U.S. Highway 290 East, Suite 200
Austin, Texas 78723

Opinion No. GA-0532

Re: Whether an open-enrollment charter school is authorized to operate a commissioned police force (RQ-0531-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. CODE ANN. § 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. CODE § 211.1(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. § 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. CODE ANN. § 37.081 (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 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. CODE ANN. §§ 12.002, .011, .052, .101 (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. § 12.101(a). The entity receiving approval of its charter is designated as the "charter holder." Id. § 12.1012(1).

Open-enrollment charter schools are generally "subject to federal and state laws and rules governing public schools." Id. § 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. § 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. § 12.104(b). While this list includes one provision from Education Code chapter 37 ("Discipline; Law and Order"), the list does not include section 37.081, which authorizes school district police departments. See id. §§ 12.104(b)(2)-(5), 37.081. Section 37.081 in particular does not expressly authorize open-enrollment charter schools to commission or appoint peace officers. Rather, section 37.081 expressly states only that "[t]he board of trustees of any school district may employ security personnel and may commission peace officers to carry out this subchapter." See id. § 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. §§ 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. § 39.114(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 2]." Id. § 12.104(a) (Vernon 2006). While section 12.104(a) grants open-enrollment charter schools "the powers granted to schools," section 37.081 grants a school district's board of trustees, not a school, the authority to create a police department. Id. (emphasis added); see id. § 37.081. 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. § 12.013(a) (Vernon Supp. 2006) (emphasis added). We believe that 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 12.013(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. § 51.203 (Vernon 2006). And an open-enrollment charter school may receive the services of a peace officer of a political subdivision. See id. § 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. CODE ANN. § 1701.601(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 37.081 nor any other statute authorizes an open-enrollment charter school to operate or maintain a commissioned police force.

SUMMARY

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

Very truly yours,

GREG ABBOTT
Attorney General 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

Footnotes

[1] 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://www.oag.state.tx.us) [hereinafter Request Letter].