Does a retired Texas state park peace officer have to take continuing education to keep an active peace-officer license?

Plain-English summary

A House committee chair asked the Attorney General a narrow question about how a single Occupations Code provision applies to retired state park peace officers. Texas generally requires a licensed peace officer to complete at least forty hours of continuing education every twenty-four months, and an officer whose license has gone inactive (because no appointment was reported for more than two years) must reactivate it by retaking coursework and passing a licensing exam. But section 1701.356 of the Occupations Code carves out an exemption for certain long-tenured retirees who hold a permanent license issued before January 1981 that was current on January 1, 1995. The question was whether a peace officer who retired from the State Park Law Enforcement Program falls inside that exemption.

The statute is awkwardly worded. It exempts "[a]n honorably retired commissioned officer of the Department of Public Safety who is a special ranger under Section 411.023, Government Code, or retired state employee." Because there is no article (no "a") before "retired state employee," the phrase can be read two ways: either as describing a single category (a retired DPS officer who happens also to be a special ranger or a retired state employee), or as naming two separate categories (a retired DPS special ranger, and separately, any retired state employee). The Attorney General concluded the two-category reading is correct, so "retired state employee" stands on its own.

Applying that reading, the opinion concluded that a peace officer who retired from the State Park Law Enforcement Program (a unit whose officers are commissioned by the Parks and Wildlife Commission) is a "retired state employee." Such a retiree, assuming the permanent-license and currency dates are met, keeps an active license without reactivating it and is not subject to the continuing-education requirement. The opinion reached this result two ways: the legislature is presumed to intend a just and reasonable result and would not have intended the strained single-category reading, and because the provision is ambiguous it should be construed consistently with the pre-codification statute (former section 415.052(d) of the Government Code), which plainly listed "a special ranger" or "a retired state employee" as alternatives. The 1999 codification was expressly declared nonsubstantive.

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. The peace-officer licensing agency named in this opinion, TCLEOSE, was later reorganized into the Texas Commission on Law Enforcement (TCOLE).

What the opinion meant for those who asked

The Legislature and the appropriations committee (what the opinion held): The opinion held that "retired state employee" in section 1701.356 is a free-standing category, not a modifier of "honorably retired commissioned officer of the Department of Public Safety," so the exemption reaches retired state employees generally, including those who served in the State Park Law Enforcement Program.

Retired state park peace officers (what the opinion held): The opinion held that a qualifying retiree from the State Park Law Enforcement Program is a "retired state employee" who, if the license was permanent, issued before January 1981, and current on January 1, 1995, keeps an active license without reactivation and is not subject to the forty-hour continuing-education requirement.

TCLEOSE, the peace-officer licensing agency (what the opinion held): The opinion held that section 1701.356 overrides, for these qualifying retirees, the agency's general authority to require reactivation under section 1701.316 and the continuing-education mandate of section 1701.351.

Common questions

Do retired Texas peace officers have to keep taking continuing education to stay licensed?
Most active licensees do. But under this opinion, a narrow group of long-tenured retirees covered by section 1701.356, those holding a permanent license issued before January 1981 that was current on January 1, 1995, are exempt from both continuing education and the reactivation process.

Was a State Park Law Enforcement officer covered by that exemption?
Yes, according to this opinion. The Attorney General concluded such an officer is a "retired state employee" under section 1701.356, so the exemption applied.

Why was the statute confusing in the first place?
When the provision was codified into the Occupations Code in 1999, the article "a" was dropped before "retired state employee," which made it unclear whether that phrase was its own category or part of the Department of Public Safety description. The opinion read it as a separate category, partly because the older, pre-codification version clearly treated it that way and the codification was meant to be nonsubstantive.

Does this exemption apply to any retired peace officer?
No. It is limited to the specific permanent-license and dating conditions in section 1701.356. Officers who do not meet those conditions remain subject to the general reactivation and continuing-education rules.

Background and statutory framework

A person may not serve as a Texas peace officer without an appropriate license from the licensing commission. Tex. Occ. Code Ann. § 1701.301; 37 Tex. Admin. Code § 217.1 (2002). When an appointment is not reported for more than two years, the license is placed in inactive status, and an inactive license-holder is treated as unlicensed for purposes of chapter 1701. 37 Tex. Admin. Code § 217.7, § 217.19 (2002). Reactivation requires meeting current licensing standards, completing the required continuing education, applying for an endorsement, and passing the licensing examination. Tex. Occ. Code Ann. § 1701.316(a) (Vernon 2002). Separately, an active licensed officer must complete at least forty hours of continuing education every twenty-four months, subject to waiver for mitigating circumstances and a credit for officers serving as elected legislators. Tex. Occ. Code Ann. § 1701.351(a)-(c) (Vernon 2002); 37 Tex. Admin. Code § 217.11, § 217.15 (2002).

Section 1701.356 exempts from both requirements "[a]n honorably retired commissioned officer of the Department of Public Safety who is a special ranger under Section 411.023, Government Code, or retired state employee" who holds a permanent license issued before January 1981 that was current on January 1, 1995. Special rangers are appointed by the Public Safety Commission and may enforce only laws designed to protect life and property. Tex. Gov't Code Ann. § 411.023(a), (b) (Vernon Supp. 2002); see id. § 411.001(1), (2). State park law enforcement officers are commissioned by the Parks and Wildlife Commission, have the powers and immunities of peace officers coextensive with the state, and are peace officers under article 2.12 of the Code of Criminal Procedure. Tex. Parks & Wild. Code Ann. § 11.018, § 11.019(a)-(b) (Vernon 2002); Tex. Code Crim. Proc. Ann. art. 2.12(10) (Vernon Supp. 2002); Tex. Occ. Code Ann. § 1701.001(4) (Vernon 2002).

Reading section 1701.356, the opinion concluded that "retired state employee" is a category distinct from the Department of Public Safety special ranger, relying on the statutory-construction presumptions that the legislature intends a just and reasonable result and that a court may weigh the consequences of a particular reading. Tex. Gov't Code Ann. § 311.021(3) (Vernon 1998); id. § 311.023(5). Because the codified text is ambiguous, the opinion construed it consistently with the pre-codification provision, former section 415.052(d) of the Government Code, which listed "a special ranger" or "a retired state employee" as alternatives and was repealed when the codification, declared nonsubstantive, took effect. Act of May 26, 1995, 74th Leg., R.S., ch. 585, § 6, 1995 Tex. Gen. Laws 3382, 3384; Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 1, sec. 1701.356, 1999 Tex. Gen. Laws 1431, 2223; see Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286 (Tex. 1999).

Citations

Statutes:

• Tex. Occ. Code Ann. § 1701.316(a) (Vernon 2002)
• Tex. Occ. Code Ann. § 1701.351(a) (Vernon 2002)
• Tex. Occ. Code Ann. § 1701.351(b)
• Tex. Occ. Code Ann. § 1701.351(c)
• Tex. Occ. Code Ann. § 1701.356 (Vernon 2002)
• Tex. Occ. Code Ann. § 1701.301
• Tex. Occ. Code Ann. § 1701.001(4)
• 37 Tex. Admin. Code § 217.19 (2002)
• 37 Tex. Admin. Code § 217.11 (2002)
• 37 Tex. Admin. Code § 217.1 (2002)
• 37 Tex. Admin. Code § 217.7 (2002)
• 37 Tex. Admin. Code § 217.15 (2002)
• Tex. Parks & Wild. Code Ann. § 11.018 (Vernon 2002)
• Tex. Parks & Wild. Code Ann. § 11.019(a)
• Tex. Parks & Wild. Code Ann. § 11.019(b)
• Tex. Code Crim. Proc. Ann. art. 2.12(10) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 411.023(a) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 411.023(b)
• Tex. Gov't Code Ann. § 411.001(1), (2)
• Tex. Gov't Code Ann. § 311.021(3) (Vernon 1998)
• Tex. Gov't Code Ann. § 311.023(5)
• Act of May 26, 1995, 74th Leg., R.S., ch. 585, § 6, 1995 Tex. Gen. Laws 3382, 3384 (former section 415.052(d), Government Code)
• Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 1, sec. 1701.356, 1999 Tex. Gen. Laws 1431, 2223

Cases:

• Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286 (Tex. 1999)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0548
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0548.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

August 28, 2002

The Honorable Robert Junell Opinion No. JC-0548
Chair, Committee on Appropriations
Texas House of Representatives Re: Whether, under section 1701.356 of the
P.O. Box 2910 Occupations Code, an honorably retired peace
Austin, Texas 78768-2910 officer within the State Park Law Enforcement
Program holds an active license, without the need
for further continuing-education under section
1701.351 of the same code (RQ-0522-JC)

Dear Representative Junell:

Generally, a peace officer who takes "a break in employment" but who wishes to resume service as a peace officer must reactivate his or her license in accordance with rules of the Texas Commission on Law Enforcement Officer Standards and Education ("TCLEOSE"). TEX. OCC. CODE ANN. § 1701.316(a) (Vernon 2002); see 37 TEX. ADMIN. CODE § 217.19 (2002) (TCLEOSE, "Reactivation of a License"). In addition, an active, licensed peace officer generally must complete at least forty hours of continuing-education programs every twenty-four months. See TEX. OCC. CODE ANN. § 1701.351(a) (Vernon 2002); 37 TEX. ADMIN. CODE § 217.11 (2002) (TCLEOSE, "Legislatively Required Continuing Education for Licensees"). But section 1701.356 of the Occupations Code exempts from the reactivation and continuing-education requirements "[a]n honorably retired commissioned officer of the Department of Public Safety who is a special ranger . . . or retired state employee." TEX. OCC. CODE ANN. § 1701.356 (Vernon 2002). You ask whether a peace officer in the State Park Law Enforcement Program is exempt from the reactivation and continuing-education requirements under section 1701.356.[1] Presuming that you ask only about a retired officer, we conclude that a peace officer who has retired from the State Park Law Enforcement Program is a "retired state employee" whom section 1701.356 exempts from the statutory reactivation and continuing-education requirements. See id.

An individual may not be appointed to serve as a peace officer in Texas unless he or she has obtained an "appropriate license" from TCLEOSE. Id. § 1701.301; see 37 TEX. ADMIN. CODE § 217.1 (2002) (TCLEOSE, "Minimum Standards for Initial Licensure"). An appointment to serve as a peace officer, as well as a termination of appointment, must be reported to TCLEOSE, see TEX. ADMIN. CODE § 217.7 (2002) (TCLEOSE, "Reporting the Appointment and Termination of a Licensee"), and TCLEOSE will place a license that has not been reported "as appointed for more than two years" in an inactive status, see id. § 217.19(a) (TCLEOSE, "Reactivation of a License"); see also id. § 217.19(d) (stating that inactive license-holder is unlicensed for purposes of chapter 1701, Occupations Code). An inactive licensee who desires to reactivate his or her peace officer license must comply with TCLEOSE rules for reactivation, which require course work and an examination:

(g) Before individuals with inactive licenses may be appointed they must:

(1) meet the current licensing standards, with successful completion of a basic licensing course current at the time of initial licensure; fulfilling this requirement;

(2) successfully complete the legislatively required continuing education for the current training cycle[;]

(3) make application and submit any required fee(s) for an endorsement in the format currently prescribed by the commission;

(4) obtain an endorsement, issued by the commission, giving the individual eligibility to take the required licensing examination; and

(5) pass the licensing examination for the license to be reactivated. If failed three times, the applicant may not be issued another endorsement of eligibility until successful completion of the current basic licensure course.

26 Tex. Reg. 7995 (2001) corrected 26 Tex. Reg. 9435, adopted 27 Tex. Reg. 481 (2002) (amending 37 TEX. ADMIN. CODE § 217.19) (TCLEOSE, "Reactivation of a License"); see also TEX. OCC. CODE ANN. § 1701.316(a) (Vernon 2002) (requiring TCLEOSE to regulate reactivation of peace officer's license).

Section 1701.351 of the Occupations Code requires a licensed peace officer in Texas to complete "at least [forty] hours of continuing education programs once every [twenty-four] months." TEX. OCC. CODE ANN. § 1701.351(a) (Vernon 2002); accord 37 TEX. ADMIN. CODE § 217.11(a) (2002) (TCLEOSE, "Legislatively Required Continuing Education for Licensees"). While TCLEOSE may waive the continuing-education requirement "when mitigating circumstances exist," in general TCLEOSE may suspend the license of a peace officer who fails to comply with the continuing-education requirement. TEX. OCC. CODE ANN. § 1701.351(a), (b) (Vernon 2002); see also 37 TEX. ADMIN. CODE § 217.15 (2002) (TCLEOSE, "Waiver of Legislatively Required Continuing Education"). But see TEX. OCC. CODE ANN. § 1701.351(c) (Vernon 2002) (requiring TCLEOSE to credit peace officer who serves as elected legislator).

Section 1701.356 of the Occupations Code exempts certain peace officers from the reactivation and continuing-education requirements, however:

An honorably retired commissioned officer of the Department of Public Safety who is a special ranger under Section 411.023, Government Code, or retired state employee and who holds a permanent license issued before January 1981 and that was current on January 1, 1995:

(1) has the same rights and privileges as any other peace officer of this state;

(2) holds, notwithstanding Section 1701.316 [requiring TCLEOSE to regulate reactivation], an active license unless the license is revoked, suspended, or probated by the commission for a violation of this chapter; and

(3) is not subject to Section 1701.351 [requiring continuing education].

Id. § 1701.356.

You ask whether section 1701.356 of the Occupations Code exempts a peace officer within the State Park Law Enforcement Program from the reactivation and continuing-education requirements. See Request Letter, supra note 1, at 1; Culbertson Letter, supra note 1, at 1. We presume that the State Park Law Enforcement Program is a state employer.

The director of the Parks and Wildlife Commission is authorized to commission "as peace officers any of the employees provided for in the general appropriations act." TEX. PARKS & WILD. CODE ANN. § 11.019(a) (Vernon 2002); see also id. § 11.018 (authorizing director to appoint law enforcement officers "authorized by appropriations and necessary for administering" department's duties and services). Law enforcement officers whom the director of the Parks and Wildlife Commission has commissioned "have the same powers, privileges, and immunities as peace officers coextensive with" state boundaries. Id. § 11.019(b). In addition, a law enforcement officer "commissioned by the Parks and Wildlife Commission" is a peace officer for the purposes of article 2.12 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 2.12(10) (Vernon Supp. 2002); see also TEX. OCC. CODE ANN. § 1701.001(4) (Vernon 2002) (defining "peace officer" as person who is "elected, employed, or appointed as a peace officer under" Code of Criminal Procedure article 2.12). You suggest that peace officers within the State Park Law Enforcement Program were overlooked when section 1701.356 was codified in 1999 and are no longer within the exemption. See Culbertson Letter, supra note 1, at 1.

We assume, first, that you ask only about retired officers who held permanent licenses issued before January 1981 and current on January 1, 1995, and who were employed by the Texas Parks and Wildlife Commission. We assume, second, that the officers about whom you ask are not special rangers under section 411.023 of the Government Code. That section authorizes the Public Safety Commission to "appoint as special rangers honorably retired commissioned officers of the" Department of Public Safety "and not more than 300 other persons." TEX. GOV'T CODE ANN. § 411.023(a) (Vernon Supp. 2002); see also id. § 411.001(1), (2) (defining "Commission" and "Department"). A special ranger is subject to Commission and gubernatorial orders, but may enforce only laws designed to protect life and property. See id. § 411.023(b).

Given our assumptions, the issue is whether a peace officer who has retired from employment with the State Park Law Enforcement Program is within the phrase "retired state employee" in section 1701.356. The resolution of this issue depends upon whether we read "retired state employee" as a kind of "honorably retired commissioned officer" ("An honorably retired commissioned officer of the Department of Public Safety who is a special ranger" or "[a]n honorably retired commissioned officer . . . who is a . . . retired state employee"), or whether we read the phrase "retired state employee" as second category of individual, alternative to an "honorably retired commissioned officer . . . who is a . . . special ranger" ("An honorably retired commissioned officer . . . who is a special ranger," in addition to a "retired state employee"). The statute is awkward in part because no article, such as the word "a," precedes the phrase "retired state employee." See TEX. OCC. CODE ANN. § 1701.356 (Vernon 2002).

You suggest that the ambiguity arose during the 1999 codification. See Culbertson Letter, supra note 1, at 1 ("This is in reference to the TCLEOSE Statute as revised by the 76th Legislature in HB 3155"); Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 1, sec. 1701.356, 1999 Tex. Gen. Laws 1431, 2223. Prior to codification, the statute (section 415.052(d) of the Government Code) applied to "a special ranger" or "a retired state employee":

(d) Notwithstanding Subsection (c), if a permanent license was issued before January 1981 to an honorably retired commissioned officer of the Department of Public Safety who is a special ranger under 411.023 or a retired state employee and the license was current on January 1, 1995, the holder of the license shall have the same rights and privileges as any other peace officer of this state and the license shall be considered active unless revoked, suspended, or probated by the commission for a violation of a provision of this chapter other than Section 415.034 [continuing-education requirement], which shall not apply to the holder of such license.

Act of May 26, 1995, 74th Leg., R.S., ch. 585, § 6, 1995 Tex. Gen. Laws 3382, 3384 (former section 415.052(d), Government Code), repealed by Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 6(b)(1), 1999 Tex. Gen. Laws 1431, 2440. The codified version moved "[a]n honorably retired commissioned officer . . . or [a] retired state employee" to the beginning of the sentence and deleted the article "a" before "retired state employee." The legislature expressly stated that the codification was intended to be nonsubstantive. See Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 7, 1999 Tex. Gen. Laws 1431, 2440; cf. OFFICE OF HOUSE, BILL ANALYSIS, Tex. H.B. 3155, 76th Leg., R.S. (1999) (stating that Texas Legislative Council took "meticulous care to ensure that no substantive change has been made in the law and to preserve any ambiguity or interpretation that may exist in current law").

In our opinion, "[a]n honorably retired commissioned officer of the Department of Public Safety who is a special ranger under Section 411.023 of the Government Code" and "[a] retired state employee" are two categories of licensees to whom section 1701.356 applies. The alternative construction would effectively refer to "[a]n honorably retired commissioned officer of the Department of Public Safety who is a . . . retired state employee and who holds . . . ." This construction repeats the word "retired" and assumes that a commissioned Department of Public Safety officer may not be a state employee. We believe it is improbable that the legislature intended such a construction, and we decline to adopt it. See TEX. GOV'T CODE ANN. § 311.021(3) (Vernon 1998) (stating presumption that legislature intends "just and reasonable result"); id. § 311.023(5) (authorizing court to consider, when construing statute, particular construction's consequences). Moreover, because of the statute's ambiguity, we construe it consistently with the pre-codified version. Cf. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286 (Tex. 1999) (stating that court will effectuate codification's unambiguous plain language where it cannot "be reconciled with prior law").

We accordingly conclude that a peace officer who has retired from the State Park Law Enforcement Program is a retired state employee whom section 1701.356 of the Occupations Code exempts from statutory reactivation and continuing-education requirements.

SUMMARY

Section 1701.356 of the Occupations Code exempts from chapter 1701's reactivation and continuing-education requirements a retired state employee who holds a permanent license that was issued before January 1981 and that was current on January 1, 1995. See TEX. OCC. CODE ANN. § 1701.356 (Vernon 2002). Presumably, a licensed peace officer who has retired from the State Park Law Enforcement Program is a retired state employee for the purposes of section 1701.356.

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

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Robert Junell, Chair, Committee on Appropriations, Texas House of Representatives, to Honorable John Cornyn, Texas Attorney General (Mar. 6, 2002) [hereinafter Request Letter] and enclosed Letter from John W. Culbertson to Honorable Robert Junell, Texas House of Representatives (Mar. 1, 2002) [hereinafter Culbertson Letter] (documents on file with Opinion Committee).