Is a Texas constable without a permanent peace officer license still a peace officer?

Plain-English summary

A county attorney asked whether several constables who had not obtained permanent peace officer licenses from the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) were nonetheless "peace officers" for purposes of article 2.12(2) of the Code of Criminal Procedure. The question mattered because special law enforcement powers (making certain arrests, carrying a weapon off duty) are vested in "peace officers" as defined in article 2.12.

The Attorney General concluded that a constable need not have a permanent peace officer license to be a peace officer under article 2.12(2). The provision lists "constables, deputy constables, and those reserve deputy constables who hold a permanent peace officer license issued under Chapter 1701, Occupations Code." Applying the Code Construction Act's instruction to read words by grammar and common usage, the opinion held that the limiting word "those" and the qualifying licensing phrase apply only to reserve deputy constables, not to constables or deputy constables. A constable is therefore a peace officer under article 2.12(2) regardless of license status.

The opinion supported this reading with the statute's legislative history. Before the 1999 session, article 2.12(2) listed only constables and deputy constables and said nothing about licensing, even though other law already required a constable to get a peace officer license. In 1999, House Bill 957 added reserve deputy constables (and other reserve officers) to the peace officer list, so reserve officers could assist on-duty officers in arrests and carry weapons off duty. The bill was aimed at the status of reserve officers, not at imposing a licensing condition on constables themselves.

The opinion also noted two specific exceptions where a license does matter. Article 14.03(g) lets only licensed peace officers (including constables) make warrantless arrests outside their jurisdiction, so that power would not extend to an unlicensed constable. And the concealed-handgun statute (section 411.1991) lets a person licensed as a peace officer apply for a peace-officer concealed-handgun license, which an unlicensed constable could not do. Because it answered the threshold question yes, the opinion did not reach the requestor's remaining questions, which assumed the opposite.

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

The county attorney and constables (what the opinion held): The opinion held that an unlicensed constable is a peace officer under article 2.12(2), so the general peace-officer authority that flows from that status applies. It also held that the separate licensing duty in section 86.0021 still binds the constable (failure to license within 270 days forfeits the office), and that two specific powers (out-of-jurisdiction warrantless arrest under article 14.03(g) and a peace-officer concealed-handgun license) require a license.

Reserve deputy constables (what the opinion held for them): The opinion held that the licensing phrase in article 2.12(2) applies to them: a reserve deputy constable is a peace officer under article 2.12(2) only if he or she holds a permanent peace officer license under chapter 1701.

Common questions

Is a Texas constable a peace officer even without a TCLEOSE license?
Yes. The opinion held that a constable is a peace officer under article 2.12(2) of the Code of Criminal Procedure regardless of whether he or she holds a permanent peace officer license. The licensing requirement in that provision applies only to reserve deputy constables.

Then why does the licensing language appear in article 2.12(2)?
Because, the opinion held, the word "those" and the phrase "who hold a permanent peace officer license" attach only to "reserve deputy constables," the last item in the list, not to constables or deputy constables.

Does this mean a constable can skip getting licensed?
No. The opinion noted that section 86.0021 of the Local Government Code still requires a constable to obtain a permanent peace officer license within 270 days of taking office, and a constable who fails to do so forfeits the office and may be removed.

Are there powers an unlicensed constable still cannot use?
Yes. The opinion identified two: making warrantless arrests outside the constable's jurisdiction under article 14.03(g), which is limited to licensed officers, and applying for a peace-officer concealed-handgun license under section 411.1991, which requires being licensed as a peace officer.

Background and statutory framework

Section 86.0021 of the Local Government Code requires a constable to provide evidence of a permanent peace officer license under chapter 1701 of the Occupations Code within 270 days of taking office, on pain of forfeiting the office in a quo warranto proceeding under chapter 66 of the Civil Practice and Remedies Code. Tex. Loc. Gov't Code Ann. § 86.0021 (Vernon Supp. 2002); Tex. Occ. Code Ann. §§ 1701.301-.316; § 1701.302; § 1701.309; § 1701.312. The legislature may prescribe constable qualifications. Tex. Const. art. V, § 18(g); Schwenke v. State, 960 S.W.2d 227, 232 (Tex. App.-Corpus Christi 1997, pet. denied).

Article 2.12 lists who qualifies as a peace officer, a status that carries special arrest and weapons authority under the Code of Criminal Procedure and the Penal Code. Tex. Code Crim. Proc. Ann. art. 2.12, art. 2.12(2); arts. 14.01(b), 14.03(a)-(d), 15.06; Tex. Pen. Code Ann. § 1.07(36); § 46.15(a). Construing article 2.12(2) by grammar and common usage, the opinion read the licensing phrase to limit only "reserve deputy constables." Tex. Gov't Code Ann. § 311.011(a) (Vernon 1998); § 311.023(1)-(3), (5). The legislative history of House Bill 957 (1999), which added reserve officers to the peace officer list and amended section 86.012(b) regarding reserve deputy constables, confirmed that the change targeted reserve officers, not constables. Tex. Loc. Gov't Code Ann. § 86.012(b) (Vernon 1999). The opinion identified two license-dependent powers: out-of-jurisdiction warrantless arrest and the peace-officer concealed-handgun license. Tex. Code Crim. Proc. Ann. art. 14.03(g) (Vernon Supp. 2002); Tex. Gov't Code Ann. § 411.1991(a) (Vernon Supp. 2002).

Citations

Statutes and constitution:

• Tex. Code Crim. Proc. Ann. art. 2.12, art. 2.12(2); art. 14.01(b); art. 14.03(a)-(d), (g); art. 15.06
• Tex. Loc. Gov't Code Ann. § 86.0021; § 86.012(b)
• Tex. Occ. Code Ann. §§ 1701.301-.316; § 1701.302; § 1701.309; § 1701.312
• Tex. Pen. Code Ann. § 1.07(36); § 46.15(a)
• Tex. Gov't Code Ann. § 311.011(a); § 311.023(1)-(3), (5); § 411.1991(a)
• Tex. Const. art. V, § 18(g)

Cases:

• Schwenke v. State, 960 S.W.2d 227, 232 (Tex. App.-Corpus Christi 1997, pet. denied)

Prior Attorney General materials referenced: Tex. Att'y Gen. Op. No. DM-322 (1995).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0522
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0522.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

June 28, 2002

The Honorable David T. Garcia Opinion No. JC-0522
Brooks County Attorney
117 East Miller Street Re: Whether a constable who has not been issued
Falfurrias, Texas 78355 a permanent peace officer license under chapter
1701 of the Occupations Code is a peace officer
for purposes of article 2.12(2) of the Code of
Criminal Procedure (RQ-0501-JC)

Dear Mr. Garcia:

You ask whether several constables in your county who have not been issued permanent peace officer licenses from the Texas Commission on Law Enforcement Officer Standards and Education ("TCLEOSE") under chapter 1701 of the Occupations Code are peace officers for purposes of article 2.12(2) of the Code of Criminal Procedure.[1] We conclude that a constable need not have a permanent peace officer license in order to be a peace officer under article 2.12(2).

As background to your request, you explain that three of the four constables in your county failed to obtain peace officer licenses from TCLEOSE within 270 days of being elected to office as required by section 86.0021 of the Local Government Code, which provides:

            (a) A person is not eligible to serve as constable unless the person:

                    (1) has a high school diploma or a high school equivalency certificate; and

                    (2) is eligible to be licensed under Sections 1701.309 and 1701.312, Occupations Code.

            (b) On or before the 270th day after the date a constable takes office, the constable shall provide, to the commissioners court of the county in which the constable serves, evidence that the constable has been issued a permanent peace officer license under Chapter 1701, Occupations Code. A constable who fails to provide evidence of licensure under this subsection or who fails to maintain a permanent license while serving in office forfeits the office and is subject to removal in a quo warranto proceeding under Chapter 66, Civil Practice and Remedies Code.

            (c) The license requirement of Subsection (b) supersedes the license requirement of Section 1701.302, Occupations Code.

TEX. LOC. GOV'T CODE ANN. § 86.0021 (Vernon Supp. 2002) (emphasis added); see also TEX. OCC. CODE ANN. §§ 1701.301-.316 (Vernon 2002) (TCLEOSE license requirements); TEX. CONST. art. V, § 18(g) ("The Legislature by general law may prescribe the qualifications of constables."); Schwenke v. State, 960 S.W.2d 227, 232 (Tex. App.-Corpus Christi 1997, pet. denied) (because the Texas Constitution prescribes no qualifications for the office of constable, the legislature is free to prescribe such qualifications).

Pursuant to subsection (b) of this provision, your office filed a quo warranto proceeding in district court to remove the constables from office. See Request Letter, supra note 1, at 1. You state that the three constables thereafter resigned from office and the commissioners court appointed the three constables to fill the vacancies in their former offices. See id. We assume that the constables were not removed from office by the district court. As a result of their resignation and appointment to office by the commissioners court, each of the three constables now has 270 days from the date of appointment to obtain a peace officer's license. See id.; see also Tex. Att'y Gen. Op. No. DM-322 (1995) at 4 (concluding that appointed constable who previously resigned from office could take advantage of grace period for obtaining license "even if the appointee previously has served as constable without obtaining from the commission the required license").

You ask whether a constable who has not yet obtained a permanent peace officer license as required by section 86.0021 of the Local Government Code is a peace officer under article 2.12(2) of the Code of Criminal Procedure, which lists the various kinds of law enforcement personnel who qualify as peace officers. See TEX. CODE CRIM. PROC. ANN. art. 2.12 (Vernon Supp. 2002). This is important because, under both the Code of Criminal Procedure and the Penal Code, special law enforcement authority, such as the power to make certain arrests or to carry a weapon, is vested in "peace officers" as that term is defined in article 2.12. See, e.g., id. arts. 14.01(b) (Vernon 1977); 14.03(a)-(d) (Vernon Supp. 2002) (authority of peace officers to make warrantless arrests); 15.06 (Vernon Supp. 2002) (authority to serve arrest warrants); TEX. PEN. CODE ANN. § 1.07(36) (Vernon 1994) (For purposes of the Penal Code, "'[p]eace officer' means a person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, Section 51.212 or 51.214, Education Code, or other law."); 46.15(a) (Vernon Supp. 2002) ("Sections 46.02 and 46.03 [weapons offenses] do not apply to: (1) peace officers and neither section prohibits a peace officer from carrying a weapon in this state, regardless of whether the officer is engaged in the actual discharge of the officer's duties while carrying the weapon.") (emphasis added). We conclude that a constable who has not obtained a permanent peace officer license under chapter 1701 of the Occupations Code is a peace officer for purposes of article 2.12(2).

A constable who has not obtained a permanent peace officer license under chapter 1701 of the Occupations Code is a peace officer for purposes of article 2.12 because the language in article 2.12(2) regarding licensing under chapter 1701 applies only to reserve deputy constables. The license requirement does not apply to constables and deputy constables. Article 2.12 provides in pertinent part:

            The following are peace officers:

                (2) constables, deputy constables, and those reserve deputy constables who hold a permanent peace officer license issued under Chapter 1701, Occupations Code.

TEX. CODE CRIM. PROC. ANN. art. 2.12(2) (Vernon Supp. 2002) (emphasis added). The Code Construction Act requires us to construe the "words and phrases" of article 2.12 "in context and . . . according to the rules of grammar and common usage." TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 1998). In article 2.12, the limiting word "those" applies only to reserve deputy constables, thus limiting the application of the qualifying phrase "who hold a permanent peace officer license issued under Chapter 1701, Occupations Code" to reserve deputy constables and precluding application of the phrase to constables and deputy constables.

This construction of article 2.12(2) is also supported by its legislative history. See id. § 311.023(1)-(3), (5) (in construing statute, court may consider object sought to be attained, circumstances under which statute was enacted, legislative history, and consequences of a particular construction). Prior to the 1999 legislative session, article 2.12(2) listed only constables and deputy constables and included nothing about licensing as a peace officer, see Act of May 22, 1997, 75th Leg., R.S., ch. 1423, § 4.01, 1999 Tex. Gen. Laws 5329, 5334 (effective Sept. 1, 1997), even though the law already required that a constable obtain a peace officer license, see Act of May 28, 1993, 73d Leg., R.S., ch. 985, § 2, 1993 Tex. Gen. Laws 4261 (amending Government Code, section 415.053 to provide that: "An officer, including a sheriff, elected under the Texas Constitution or a statute or appointed to fill a vacancy in an elective office must be licensed by the commission not later than two years after the date that the officer takes office. . . . It is incompetency and a ground for removal from office under Title 100, Revised Statutes, or any other removal statute if an officer to whom this section applies does not obtain the license by the required date or does not remain licensed.").

In 1999, the legislature enacted House Bill 957, which was intended to include "reserve police officers, reserve deputies and reserve deputy constables as peace officers," to enable them "to assist on-duty officers in arrests" and "to carry their weapons while off-duty without being subject to prosecution for unlawfully carrying a weapon." SENATE RESEARCH CTR., BILL ANALYSIS, Tex. H.B. 957 (Apr. 15, 1999). With respect to reserve deputy constables, House Bill 957 amended article 2.12(2) as follows: "constables, [and] deputy constables, and those reserve deputy constables who hold a permanent peace officer license issued under Chapter 415, Government Code [now Chapter 1701, Occupations Code]." Act of May 5, 1999, 76th Leg., R.S., ch. 90, § 1, 1999 Tex. Gen. Laws 473 (enacting House Bill 957). The bill also added the following language to section 86.012(b) of the Local Government Code, which provides for the appointment of reserve deputy constables:

            The constable may authorize a reserve deputy constable who is a peace officer as described by Article 2.12, Code of Criminal Procedure, to carry a weapon or act as a peace officer at all times, regardless of whether the reserve deputy constable is engaged in the actual discharge of official duties, or may limit the authority of the reserve deputy constable to carry a weapon or act as a peace officer to only those times during which the reserve deputy constable is engaged in the actual discharge of official duties. A reserve deputy constable who is not a peace officer as described by Article 2.12, Code of Criminal Procedure, may act as a peace officer only during the actual discharge of official duties. A reserve deputy constable, regardless of whether the reserve deputy constable is a peace officer as described by Article 2.12, Code of Criminal Procedure, is not:

                    (1) eligible for participation in any program provided by the county that is normally considered a financial benefit of full-time employment or for any pension fund created by statute for the benefit of full-time paid peace officers; or

                    (2) exempt from Chapter 1702, Occupations Code.

Id. § 3, 1999 Tex. Gen. Laws at 475 (codified at TEX. LOC. GOV'T CODE ANN. § 86.012(b) (Vernon 1999)). Clearly, House Bill 957 was intended to address the status of reserve law enforcement officers, such as reserve deputy constables, and was not intended to affect the status of constables. The bill was not intended to require a constable to obtain a peace officer license in order to be a peace officer for purposes of article 2.12(2).

In sum, a constable who has not yet obtained a permanent peace officer license as required by section 86.0021 of the Local Government Code is a peace officer for purposes of article 2.12(2) of the Code of Criminal Procedure. Given this conclusion, we do not reach your remaining questions, which are premised on the conclusion that a constable who has not obtained a permanent peace officer license is not a peace officer under article 2.12(2). We do note, however, that we have located two statutes that apply only to a peace officer who has obtained a peace officer license.

Article 14.03(g) of the Code of Criminal Procedure authorizes only certain types of peace officers, including constables, "who [are] licensed under Chapter 415, Government Code" (now Occupations Code, chapter 1701) to make warrantless arrests outside their jurisdictions. See TEX. CODE CRIM. PROC. ANN. art. 14.03(g) (Vernon Supp. 2002). The authority provided by article 14.03(g) applies only to a licensed peace officer and would not apply to an unlicensed constable. Similarly, the concealed-handgun law establishes special application requirements for concealed-handgun licenses for active peace officers: "A person who is licensed as a peace officer under Chapter 415 [now Occupations Code, chapter 1701] and is employed full-time as a peace officer by a law enforcement agency may apply for a license under this subchapter." TEX. GOV'T CODE ANN. § 411.1991(a) (Vernon Supp. 2002) (emphasis added). A constable who is not licensed under chapter 1701 of the Occupations Code would not be eligible to apply for a concealed-handgun license under that provision.

                                 SUMMARY

            A constable who has not yet obtained a permanent peace officer license as required by section 86.0021 of the Local Government Code is a peace officer for purposes of article 2.12(2) of the Code of Criminal Procedure.

                                         Very truly yours,

                                         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

Mary R. Crouter
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable David T. Garcia, Brooks County Attorney, to Honorable John Cornyn, Texas Attorney General (Jan. 16, 2002) (on file with Opinion Committee) [hereinafter Request Letter].