Could the Texas police licensing commission require peace officers and jailers to be U.S. citizens?

Plain-English summary

The agency that licenses Texas peace officers and jailers, then called the Texas Commission on Law Enforcement Officer Standards and Education, had a rule on the books requiring every applicant for a peace officer, reserve, armed public security officer, or jailer license to be a United States citizen. A district attorney asked whether the commission had the power to impose that requirement by rule. The Attorney General concluded it did not.

The test for whether an agency overstepped its rulemaking power is whether the rule harmonizes with the objectives of the statute that gives the agency that power. The commission's statute, Government Code section 415.010(10), let it set minimum standards "relating to competence and reliability, including educational, training, physical, mental, and moral standards." Citizenship is not on that list. More tellingly, the predecessor statute had expressly authorized a citizenship requirement until 1981, when the Legislature removed citizenship from the matters the commission could regulate. The opinion read that deletion as a clear signal that the Legislature did not consider citizenship a marker of a competent and reliable officer.

Because the Legislature had withdrawn the commission's authority to make citizenship a qualification, the citizenship rule was not in harmony with section 415.010, and the commission had exceeded its statutory authority in adopting it. An agency cannot impose by rule a burden or condition beyond, or inconsistent with, what the statute provides.

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. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The licensing commission has since been renamed and reorganized (the Texas Commission on Law Enforcement, TCOLE), the governing statutes in chapter 415 of the Government Code were recodified into the Occupations Code, and licensing standards have changed, so confirm the current statutes and rules before relying on this opinion.

Background and statutory framework

The question was the validity of 37 Texas Administrative Code section 211.80(a)(1), a commission rule (effective October 19, 1983) requiring an applicant for a license as a peace officer, reserve, armed public security officer, or jailer to be a United States citizen. The district attorney argued the commission had exceeded the rulemaking power Government Code section 415.010 gave it.

The opinion applied the settled test: an agency exceeds its rulemaking power when a rule is not in harmony with the general objectives of the statute granting that power. Gerst v. Oak Cliff Sav. & Loan Ass'n, 432 S.W.2d 702 (Tex. 1968); see also Attorney General Opinions JM-609 (1986) and DM-68 (1991). Section 415.010(10) authorized the commission to "establish minimum standards relating to competence and reliability, including educational, training, physical, mental, and moral standards" for licensing officers, county jailers, and public security officers. That discretion was bounded: the standards had to relate to an applicant's competence and reliability, and the listed matters (education, training, physical and mental health, moral character) marked what the Legislature considered pertinent. Citizenship was not listed.

The history was decisive. Until 1981, the commission's authorization expressly included citizenship as a matter relating to the competency and reliability of peace officers, found in section 6(c) of former article 4413(29aa), V.T.C.S. (The base grant in section 2(b) of that article had never mentioned citizenship.) In 1981 the Legislature, through H.B. 2236, omitted citizenship from the matters about which the commission could establish rules. The opinion treated that omission as a clear indication of legislative intent that citizenship not be a qualification for a competent and reliable law enforcement officer, and that the Legislature had withdrawn the commission's authority to require it. State v. Jackson, 376 S.W.2d 341 (Tex. 1964).

A footnote addressed the shift in the statutes from "employment" of officers to "licensing" of officers. Because employment as a law enforcement officer is conditioned on holding the appropriate license (Government Code section 415.051(a)), the opinion found the distinction unimportant for determining the Legislature's intent about the commission's rulemaking authority over officer qualifications.

The opinion concluded that the citizenship requirement was not in harmony with the legislative intent of section 415.010, so the commission had exceeded its statutory authority in adopting the rule. Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214 (Tex. Civ. App.-San Antonio 1980, no writ) (an agency's rules may not impose an additional burden or condition in excess of or inconsistent with statutory provisions).

Common questions

What rule did this opinion address?
A Texas Administrative Code rule, 37 TAC section 211.80(a)(1), that required applicants for peace officer, reserve, armed public security officer, and jailer licenses to be United States citizens.

Why did the Attorney General find the citizenship rule invalid?
Because the commission's statute, Government Code section 415.010, let it set licensing standards relating only to competence and reliability, and citizenship was not among them. The opinion also relied on the Legislature having deliberately removed citizenship from the commission's authority in 1981.

Did this opinion say non-citizens had a right to be police officers?
No. The opinion decided only that the commission lacked authority to impose a citizenship requirement by rule under section 415.010. It turned on the limits of the agency's rulemaking power, not on any applicant's constitutional rights.

How does an agency rule get found to exceed its authority?
The opinion applied the rule that an agency rule must harmonize with the objectives of the statute granting rulemaking power; a rule imposing a burden or condition beyond or inconsistent with the statute is invalid.

Citations

• Government Code §§ 415.001(2), (4)-(7), 415.010, 415.010(10), 415.051(a)
• 37 Texas Administrative Code § 211.80(a)(1)
• Former V.T.C.S. article 4413(29aa), sections 2(b), 6(c) (repealed)
• Gerst v. Oak Cliff Sav. & Loan Ass'n, 432 S.W.2d 702 (Tex. 1968)
• State v. Jackson, 376 S.W.2d 341 (Tex. 1964)
• Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214 (Tex. Civ. App.-San Antonio 1980, no writ)
• Tex. Att'y Gen. Ops. JM-609 (1986), DM-68 (1991)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0105
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0105.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

April 16, 1992

Honorable Dan M. Boulware
District Attorney
Johnson and Somervell Counties
Johnson County Courthouse
Cleburne, Texas 76031

Opinion No. DM-105

Re: Whether the Texas Commission on Law Enforcement Officer Standards and Education exceeded its rulemaking authority in promulgating title 37, section 211.80(a)(1) of the Texas Administrative Code (RQ-293)

Dear Mr. Boulware:

You ask about the validity of title 37, section 211.80(a)(1) of the Texas Administrative Code, a regulation through which the Texas Commission on Law Enforcement Officer Standards and Education (hereinafter the commission) requires an applicant for a license as a peace officer, a reserve, an armed public security officer, or a jailer to be a citizen of the United States of America. You urge that the commission has exceeded its authority to promulgate rules under section 415.010 of the Government Code, which grants the commission rulemaking power. We conclude that in this circumstance, the commission has exceeded its rulemaking authority.

The determining factor in answering the question of whether a particular administrative agency has exceeded its rulemaking power is whether the rule is in harmony with the general objectives of the statute which grants that agency rulemaking power. Gerst v. Oak Cliff Sav. & Loan Ass'n, 432 S.W.2d 702 (Tex. 1968); Attorney General Opinion JM-609 (1986); see also Attorney General Opinion DM-68 (1991) (administrative agency may not impose restrictions that are inconsistent with its statutory powers). Section 415.010(10) of the Government Code authorizes the commission to

establish minimum standards relating to competence and reliability, including educational, training, physical, mental, and moral standards, for licensing as an officer, county jailer, or public security officer.[1] (Footnote added.)

Under this provision, the legislature has granted the commission the discretion to establish minimum standards for licensing certain law enforcement officers. This discretion is not unbridled; the standards must relate only to an applicant's competence and reliability. Furthermore, section 415.010 lists education, training, physical and mental health, and moral character as matters the legislature considered pertinent to an applicant's competence and reliability as an officer, county jailer, or public security officer.

In order to determine whether in promulgating title 37, section 211.80(a)(1) of the Texas Administrative Code[2] the commission has exceeded its rulemaking authority, we must determine whether the citizenship requirement harmonizes with the legislative directive of section 415.010 of the Government Code that the commission establish standards relating to competency and reliability. See Gerst. Section 415.010 does not expressly include citizenship in its list of matters bearing on an applicant's competence and reliability. Until 1981, the commission's authorization to establish standards for the employment of peace officers expressly included citizenship as a matter relating to the competency and reliability of peace officers.[3] See Acts 1981, 67th Leg., ch. 699, § 1, at 2613 (former V.T.C.S. article 4413(29aa), section 6(c), repealed by Acts 1987, 70th Leg., ch. 147, § 6(a), eff. Sept. 1, 1987, see now Government Code chapter 415). In 1981, citizenship was omitted from the list of matters relating to the employment[4] of competent and reliable peace officers about which the commission may establish rules. See H.B. 2236, Acts 1981, 67th Leg., ch. 757, § 3, at 2794-95.

We think this omission is a clear indication of the legislative intent that citizenship not be a qualification for a competent and reliable law enforcement officer. The legislature has withdrawn from the commission the authority to establish a rule requiring that an applicant for a license as a peace officer, reserve, armed public security officer, or jailer be a citizen of this country. See State v. Jackson, 376 S.W.2d 341 (Tex. 1964). The authority of the commission to establish rules about competent and reliable law enforcement officers pursuant to section 415.010 of the Government Code does not include the authority to establish United States citizenship as a requirement for the licensing of these officers. Therefore, the citizenship requirement of title 37, section 211.80(a)(1) of the Texas Administrative Code is not in harmony with the legislative intent of section 415.010 of the Government Code. See Gerst.

Thus, we conclude that by promulgating title 37, section 211.80(a)(1) of the Texas Administrative Code the commission has exceeded its statutory authority. See, e.g., Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214 (Tex. Civ. App.--San Antonio 1980, no writ) (rules adopted by administrative agency may not impose additional burden or condition in excess of or inconsistent with statutory provisions).

SUMMARY

The Texas Commission on Law Enforcement Officer Standards and Education is not authorized to promulgate title 37, section 211.80(a)(1) of the Texas Administrative Code, a rule which requires an applicant for a peace officer, reserve, or jailer license to be a United States citizen.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kay H. Guajardo
Assistant Attorney General

[1] Because of the definitions of officer, county jailer, and public security officer, found in sections 415.001(2), (4)-(7) of the Government Code, the law enforcement positions listed in section 415.010 of the Government Code correspond to the officers named in title 37, section 211.80(a)(1) of the Texas Administrative Code: peace officer, reserve, armed public security officer, and jailer.

[2] This rule was adopted to be effective October 19, 1983.

[3] The predecessor statute of section 415.010 of the Government Code, former article 4413(29aa), section 2(b), V.T.C.S., did not include the citizenship language; rather it authorized the commission to "[e]stablish minimum educational, training, physical, mental and moral standards for admission to employment as a peace officer . . . ." Acts 1975, 64th Leg., ch. 549, § 1, at 1809. Section 6(c) of former article 4413(29aa), V.T.C.S., where we find the citizenship language, thus provided additional authority for the commission to establish rules regarding the employment of peace officers.

[4] Both provisions in the prior law, sections 2(b) and 6(c) of former article 4413(29aa), V.T.C.S., granted the commission the authority to establish rules regarding the employment of peace officers, as distinguished from the licensing of certain officers. Section 415.010 of the Government Code and title 37, section 211.80(a)(1) of the Texas Administrative Code, at issue here, are about the licensing of certain law enforcement officers. Since employment as a law enforcement officer is conditioned upon obtaining the appropriate license, see Gov't Code § 415.051(a), we think the distinction between licensing and employing a law enforcement officer is not important for purposes of inquiring into the intent of the legislature in granting the commission the authority to promulgate rules pertaining to the qualifications of competent and reliable law enforcement officers.