Do Texas peace officers have to take radar and traffic-law training before they can enforce traffic laws?

Plain-English summary

Harris County District Attorney Charles Rosenthal asked the Attorney General whether section 644.101(d) of the Transportation Code actually required a peace officer to attend continuing education on enforcing traffic and highway laws and using radar equipment. The subsection, added by Senate Bill 220 in 2001, said a sheriff, deputy, or peace officer who did not attend such courses "as prescribed by Subchapter F, Chapter 1701, Occupations Code" could not enforce traffic and highway laws.

The Attorney General concluded the requirement had no effect, because the courses it pointed to did not exist. Subchapter F of chapter 1701 directs the licensing commission (TCLEOSE) to set up various training programs, on child abuse investigation, family violence, racial profiling, motorcycle laws, asset forfeiture, and more, but it never prescribed continuing education on traffic enforcement or radar use. Neither did the chapter's other subchapters dealing with continuing education or licensing. A separate bill, House Bill 3233, would have created exactly that training, but it died in the House Public Safety Committee and never became law. Drawing on the rule that a statute referencing another statute must be read against the referenced one, and on cases holding that a law can incorporate by reference only provisions that already exist, the opinion reasoned that when the referenced statute does not exist, the referencing statute is of no effect. So an officer was not, at that time, required by section 644.101(d) to take the traffic and radar courses.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Prosecutors and the requesting district attorney (what the opinion held for them): The opinion held that, at the time, section 644.101(d) imposed no enforceable continuing education requirement on peace officers regarding traffic enforcement or radar use, because the cross-referenced courses had never been prescribed.

Peace officers and law enforcement agencies (what the opinion held for them): The opinion held that an officer's authority to enforce traffic and highway laws was not conditioned on attending the traffic and radar courses described in section 644.101(d), since those courses did not exist under subchapter F of chapter 1701.

TCLEOSE and the Legislature (what the opinion held for them): The opinion held that the licensing commission had broad authority to set curriculum had the courses been prescribed, but that the Legislature had not in fact prescribed them, leaving the cross-reference inoperative until that gap was filled.

Common questions

Did Texas peace officers have to take radar training to write speeding tickets?
At the time of this opinion, no. The Attorney General concluded that section 644.101(d) of the Transportation Code did not impose that requirement because the referenced courses were never created.

Why didn't the requirement work?
The statute said the courses had to be the ones "prescribed by Subchapter F, Chapter 1701, Occupations Code," but that subchapter never prescribed continuing education on traffic enforcement or radar use, so there was nothing for the cross-reference to attach to.

Wasn't there a bill to create the training?
Yes. The opinion noted House Bill 3233 would have added the training to the Occupations Code, but it was not approved in committee and never became law.

Can one statute point to another that doesn't exist yet?
The opinion explained that, under the cases it cited, a statute can incorporate by reference only provisions already in existence; a reference to a nonexistent statute leaves the referencing statute of no effect.

Background and statutory framework

Section 644.101(d) of the Transportation Code, added by the Act of June 15, 2001, 77th Leg., R.S., ch. 1227, § 11, sec. 644.101(d), 2001 Tex. Gen. Laws 2806, 2809, barred a sheriff, deputy, or peace officer from enforcing traffic and highway laws if the officer did not attend continuing education on enforcement of traffic and highway laws and on the use of radar equipment "as prescribed by Subchapter F, Chapter 1701, Occupations Code." Tex. Transp. Code Ann. § 644.101(d) (Vernon Supp. 2002).

Subchapter F of chapter 1701 of the Occupations Code directs the Commission on Law Enforcement Officer Standards and Education to set minimum curriculum requirements and to require training in specified subjects, and it was amended in 2001 to add several programs, but none of them was continuing education on traffic enforcement or radar use. Tex. Occ. Code Ann. § 1701.253(a) (Vernon 2002); see id. §§ 1701.251-.257. The chapter's continuing education subchapter and its licensing subchapter likewise did not prescribe such courses. Id. §§ 1701.351-.356; id. §§ 1701.301-.316. House Bill 3233 would have added a new section 1701.258 creating the training, but it never became law. Tex. H.B. 3233, 77th Leg., R.S. (2001). Although the commission has broad rulemaking authority to set standards for education and training, id. § 1701.151(1)-(2) (Vernon 2002), the opinion reasoned that authority could not supply courses the Legislature had not prescribed.

The opinion applied the rule that "[w]hen 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), and cited out-of-state decisions holding that incorporation by reference reaches only acts in existence when the referencing statute is enacted. Scappaticci v. Southwest Sav. & Loan Ass'n, 662 P.2d 131 (Ariz. 1983); Adelman v. Onischuck, 135 N.W.2d 670, 681 (Minn. 1965); Univ. of S. C. v. Mehlman, 139 S.E.2d 771, 774 (S.C. 1964); Lassiter v. Northampton County Bd. of Elections, 102 S.E.2d 853, 860 (N.C. 1958).

Citations

Statutory provisions:

• Tex. Transp. Code Ann. § 644.101(d) (Vernon Supp. 2002)
• Act of June 15, 2001, 77th Leg., R.S., ch. 1227, § 11, sec. 644.101(d), 2001 Tex. Gen. Laws 2806, 2809
• Tex. Occ. Code Ann. § 1701.253(a) (Vernon 2002)
• Tex. Occ. Code Ann. §§ 1701.251-.257
• Tex. Occ. Code Ann. §§ 1701.351-.356
• Tex. Occ. Code Ann. §§ 1701.301-.316
• Tex. Occ. Code Ann. § 1701.151(1)-(2) (Vernon 2002)
• Tex. H.B. 3233, 77th Leg., R.S. (2001)

Cases:

• In re R.J.J., 959 S.W.2d 185, 186 (Tex. 1998)
• Scappaticci v. Southwest Sav. & Loan Ass'n, 662 P.2d 131 (Ariz. 1983)
• Adelman v. Onischuck, 135 N.W.2d 670, 681 (Minn. 1965)
• Univ. of S. C. v. Mehlman, 139 S.E.2d 771, 774 (S.C. 1964)
• Lassiter v. Northampton County Bd. of Elections, 102 S.E.2d 853, 860 (N.C. 1958)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0497
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0497.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
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-0471-JC)

Dear Mr. Rosenthal:

You have requested our opinion as to whether section 644.101(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 1701, Occupations Code."[1] For the reasons set forth below, we conclude that, because of the absence of any provisions in subchapter F, chapter 1701, 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. TRANSP. CODE ANN. § 644.101(d) (Vernon Supp. 2002); see also Act of June 15, 2001, 77th Leg., R.S., ch. 1227, § 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 1701.251(c)(1)." TEX. OCC. CODE ANN. § 1701.253(a) (Vernon 2002). Subsection (b) of section 1701.253 states that "the commission shall require courses and programs to provide 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. § 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. § 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. § 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. §§ 1701.251-.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. §§ 1701.351-.356. Nor does subchapter G, which treats "license requirements; disqualifications and exemptions," do so. See id. §§ 1701.301-.316.

A bill of the precise kind contemplated by section 644.101(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.

HOUSE COMM. ON PUBLIC SAFETY, BILL ANALYSIS, 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. OCC. CODE ANN. § 1701.151(1)-(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 644.101(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 as prescribed by Subchapter F, Chapter 1701, Occupations Code." TEX. TRANSP. CODE ANN. § 644.101(d) (Vernon 2002) (emphasis added). "Prescribed" means "laid down, appointed, or fixed beforehand; ordained, appointed, set, fixed, defined." XII OXFORD ENGLISH 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. CODE ANN. § 644.101(d) (Vernon 2002). As the Texas Supreme Court has said, "[w]hen 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 131 (Ariz. 1983), the Supreme Court of Arizona, sitting in banc, 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 135. 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) ("a part 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 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 644.101(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

[1] Letter from Honorable Charles A. Rosenthal, Jr., Harris County District Attorney, to Honorable John Cornyn, Texas Attorney General, at 1 (Nov. 27, 2001) (on file with Opinion Committee) [hereinafter Request Letter].