Can a Texas school district discipline its own police officers without giving them a copy of a signed written complaint first?

TX AG Opinion GA-0251: School Police Discipline Notice

Plain-English summary

The Texas Education Agency, on behalf of New Caney Independent School District, asked whether Education Code section 37.081(f), which governs school district peace officers, conflicted with chapter 614, subchapter B of the Government Code, which sets notice requirements for complaints against certain law enforcement officers, police officers, and fire fighters. The district wanted its superintendent to be able to discipline a school district police officer with or without a signed written complaint, worried that children or their parents might be unwilling or unable to put a complaint in writing and sign it.

The opinion concluded there was no conflict. Section 37.081 makes a school district police officer accountable to the chief of police, who in turn reports to the superintendent, so the superintendent does not directly discipline officers day to day. But the superintendent can still exercise the general Education Code authority to evaluate personnel and initiate termination or suspension of an employee, including a police officer, as long as the officer receives a copy of the complaint before that discipline is imposed, exactly as chapter 614 requires. The two statutes work together rather than against each other. The opinion also noted that a district is not limited to formal citizen complaints: an internal affairs investigation and report can satisfy chapter 614's requirements, so the district's stated worry about complaints only coming from children or parents was not actually a barrier to disciplining an officer.

Currency note

This opinion was issued in 2004. 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.

Who this opinion affected (as of 2004)

School district superintendents and administrators: The opinion concluded a superintendent could still evaluate a school district police officer and initiate termination or suspension under Education Code section 11.201(d), but only after the officer received a copy of the signed complaint, as chapter 614, subchapter B of the Government Code required.

School district police chiefs: The opinion confirmed that under section 37.081(f) of the Education Code, a school district's police officers were supervised by and accountable to the chief of police (or the chief's designee), not directly to the superintendent, and that the chief could discipline an officer after giving the notice chapter 614 required.

School district police officers: The opinion meant an officer could not be disciplined over a complaint, whether from a parent, a student, or an internal affairs investigation, without first receiving a copy of that signed complaint.

Common questions

Did Texas law let a school district superintendent skip the written-complaint requirement to discipline a school police officer faster?
No. This 2004 opinion concluded that chapter 614, subchapter B of the Government Code applied to school district police officers just as it did to other covered law enforcement and fire personnel, and nothing in Education Code section 37.081 exempted them from it.

Could a school district discipline an officer if a parent or student was unwilling to sign a written complaint?
Yes, according to the opinion, but not off an unsigned complaint. The opinion pointed out that an internal affairs investigation and report by the police department could independently satisfy chapter 614's requirements, so a district was not limited to waiting on a parent or student to file and sign a formal complaint.

Who was actually responsible for supervising and disciplining school district police officers under this opinion?
The opinion described a chain running through the chief of police, not the superintendent directly: officers were supervised by the chief of police or the chief's designee, the chief was accountable to the superintendent, and the superintendent retained authority to evaluate personnel and initiate termination or suspension, subject to the chapter 614 notice requirement.

Background and statutory framework

Under the Education Code as it stood in 2004, a school district superintendent had general administrative responsibility for the district's day-to-day operations, including the assignment and evaluation of personnel and the authority to initiate termination or suspension of employees. Section 37.081 separately authorized a school district's board of trustees to commission its own peace officers, define their territorial jurisdiction and duties, and required those officers to meet the same licensing standards as other Texas peace officers through the Commission on Law Enforcement Officer Standards and Education. Section 37.081(f) specifically made the chief of the school district police department accountable to the superintendent, while school district police officers were supervised by the chief of police or the chief's designee.

Chapter 614, subchapter B of the Government Code, titled "Complaint Against Law Enforcement Officer or Fire Fighter," applied to complaints against a state law enforcement officer, a fire fighter not covered by a civil service statute, or a police officer not covered by a civil service statute. To be considered, a complaint had to be in writing and signed by the person making it, and a signed copy had to be given to the officer within a reasonable time after filing, before any disciplinary action could be taken.

New Caney ISD argued the two statutes were in tension: the superintendent's general duty to evaluate and discipline personnel under section 11.201(d), it said, would be undercut if discipline of a police officer always required a signed written complaint, particularly because children or their parents might be unable or unwilling to file one. The opinion rejected that reading. Neither section 37.081 nor chapter 614 gave "police officer" anything other than its ordinary meaning, and chapter 614's only textual exception was for officers covered by a civil service statute, which did not apply here. Reading the statutes together, the opinion concluded that a chief of police could supervise and discipline a school district officer under section 37.081(f) once the chapter 614 notice was given, and a superintendent could likewise exercise the evaluation and termination authority under section 11.201(d), again once the officer received a copy of the signed complaint. The opinion further noted, citing Fudge v. Haggar and distinguishing Guthery v. Taylor, that the authority to discipline was not limited to complaints signed by an outside citizen: a complaint signed by an internal affairs investigator, or an internal investigation and report, could also satisfy chapter 614's requirements. On that basis, the opinion found no conflict between the two statutes and no gap that would leave a school district unable to discipline an officer for lack of a signed complaint from a child or parent.

Citations

Statutes:

• TEX. EDUC. CODE ANN. § 11.201(d)(5) (Vernon Supp. 2004)
• TEX. EDUC. CODE ANN. § 11.201(d)(2), (4) (Vernon Supp. 2004)
• TEX. EDUC. CODE ANN. § 37.081(a), (d), (e) (Vernon 1996)
• TEX. EDUC. CODE ANN. § 37.081(f), (h) (Vernon 1996)
• TEX. CODE CRIM. PROC. ANN. art. 2.12(8) (Vernon Supp. 2004)
• TEX. GOV'T CODE ANN. §§ 614.021-.023 (Vernon 1994)
• TEX. GOV'T CODE ANN. § 614.021 (Vernon 1994)
• TEX. GOV'T CODE ANN. § 614.021(3) (Vernon 1994)
• TEX. GOV'T CODE ANN. § 614.022 (Vernon 1994)
• TEX. GOV'T CODE ANN. § 614.023 (Vernon 1994)
• TEX. GOV'T CODE ANN. § 614.023(b) (Vernon 1994)
• TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 1998)

Cases:

• L & M-Surco Mfg., Inc. v. Winn Tile Co., 580 S.W.2d 920 (Tex. Civ. App.-Tyler 1979, writ dism'd)
• Fudge v. Haggar, 621 S.W.2d 196 (Tex. App.-Texarkana 1981, writ ref'd n.r.e.)
• Guthery v. Taylor, 112 S.W.3d 715 (Tex. App.-Houston [14th Dist.] 2003, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0251
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0251.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 27, 2004

Shirley J. Neeley, Ed.D.
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701

Opinion No. GA-0251

Re: Whether section 37.081(f) of the Education Code, concerning school district peace officers, conflicts with chapter 614, subchapter B of the Government Code, concerning complaints against certain law enforcement officers, police officers, and fire fighters (RQ-0204-GA)

Dear Commissioner Neeley:

On behalf of New Caney Independent School District (the "District"), you ask whether section 37.081(f) of the Education Code, concerning school district peace officers, conflicts with chapter 614, subchapter B of the Government Code, concerning complaints against certain law enforcement officers, police officers, and fire fighters.[1]

Under the Education Code, a school district superintendent has general administrative responsibility for the day-to-day operations of the district. See TEX. EDUC. CODE ANN. § 11.201(d)(5) (Vernon Supp. 2004). The superintendent has responsibility for the assignment and evaluation of all district personnel and initiates the termination or suspension of employees. See id. § 11.201(d)(2), (4). Specifically concerning school district law enforcement personnel, section 37.081 of the Education Code authorizes the board of trustees of any school district to commission peace officers and to define the officers' territorial jurisdiction and duties. See id. § 37.081(a), (d), (e) (Vernon 1996). Such peace officers must meet all minimum standards for peace officers established by the Commission on Law Enforcement Officer Standards and Education and be licensed by that commission. Id. § 37.081(f), (h); see also TEX. CODE CRIM. PROC. ANN. art. 2.12(8) (Vernon Supp. 2004) (listing persons commissioned under section 37.081 as a "peace officer"). With respect to officer supervision, Education Code section 37.081(f) provides:

The chief of police of the school district police department shall be accountable to the superintendent and shall report to the superintendent or the superintendent's designee. School district police officers shall be supervised by the chief of police of the school district or the chief of police's designee and shall be licensed by the Commission on Law Enforcement Officer Standards and Education.

TEX. EDUC. CODE ANN. § 37.081(f) (Vernon 1996).

Subchapter B of the Government Code is entitled "Complaint Against Law Enforcement Officer or Fire Fighter." TEX. GOV'T CODE ANN. §§ 614.021-.023 (Vernon 1994). The subchapter applies only to a complaint against:

(1) a law enforcement officer of the State of Texas, including an officer of the Department of Public Safety or of the Texas Alcoholic Beverage Commission;

(2) a fire fighter who is not covered by a civil service statute; or

(3) a police officer who is not covered by a civil service statute.

Id. § 614.021. Section 614.022 states that "[t]o be considered by the head of a state agency or by the head of a fire or police department, the complaint must be: (1) in writing; and (2) signed by the person making the complaint." Id. § 614.022. A copy of a signed complaint against a law enforcement officer, fire fighter, or police officer must be given to the officer within a reasonable time after the complaint is filed, without which no disciplinary action may be taken. See id. § 614.023.

The District wants the superintendent to be able to administer appropriate discipline with or without a complaint in the interest of school safety.[2] Specifically, the District is concerned that children or their parents may be unable or disinclined to file a written, signed complaint. See New Caney I.S.D. Letter, supra note 2, at 2. Additionally, the District suggests that chapter 614, subchapter B of the Government Code conflicts with the duties of a superintendent to evaluate the conduct of all personnel and to initiate the termination or suspension of employees. See id.

As a preliminary matter, we note that neither section 37.081 of the Education Code nor chapter 614, subchapter B of the Government Code defines the term "police officer" or suggests that it has other than its ordinary meaning. Section 614.021's only restriction is that it does not apply to police officers who are covered by a civil service statute. See TEX. GOV'T CODE ANN. § 614.021(3) (Vernon 1994). Giving the term "police officer" its ordinary meaning, we conclude that a police officer of a school district police department will be subject to chapter 614, subchapter B of the Government Code, absent conflict with some other statute. See id. § 311.011(a) (Vernon 1998) (words are to be construed in context and according to common usage unless they have acquired a technical or particular meaning); see also L & M-Surco Mfg., Inc. v. Winn Tile Co., 580 S.W.2d 920, 926 (Tex. Civ. App.-Tyler 1979, writ dism'd) (when "the same or a similar term is used in the same connection in different statutes, it will be given the same meaning in one that it has in another, unless there is something to indicate that a different meaning was intended").

The District has suggested that sections 614.022 and 614.023 of the Government Code conflict with a superintendent's duties under section 11.201(d) and section 37.081 of the Education Code. See New Caney I.S.D. Letter, supra note 2, at 2. Under section 37.081, a peace officer is supervised by the chief of police of the school district (or a designee), and the chief of police is accountable to the superintendent. See TEX. EDUC. CODE ANN. § 37.081(f), (h) (Vernon 1996). Thus, a superintendent does not have direct responsibility for disciplining officers of a school district police department. See id. A chief of police may supervise and discipline a school district officer under section 37.081(f) of the Education Code after providing the notice required by sections 614.022 and 614.023 of the Government Code. A superintendent may exercise the duty under section 11.201(d) to evaluate and "initiat[e] the termination or suspension of an employee" such as a police officer of the school district police department, as long as the officer/employee receives a copy of the complaint prior to the imposition of such disciplinary measures. See id. § 11.201(d)(2), (4) (Vernon Supp. 2004); see also TEX. GOV'T CODE ANN. § 614.023(b) (Vernon 1994). Accordingly, we conclude that chapter 614, subchapter B of the Government Code does not conflict with a superintendent's duties under sections 11.201(d) and 37.081 of the Education Code.

We disagree with the district that a construction giving effect both to section 37.081 of the Education Code and to chapter 614, subchapter B of the Government Code would be unworkable because children or their parents may be unable or disinclined to provide a written complaint. The authority of a head of a police department to discipline is not limited to complaints filed by a citizen under section 614.022 of the Government Code. Compare Fudge v. Haggar, 621 S.W.2d 196, 198 (Tex. App.-Texarkana 1981, writ ref'd n.r.e.) (a complaint signed by an internal affairs investigator satisfied the requirements of the predecessor statute to chapter 614, subchapter B of the Government Code) with Guthery v. Taylor, 112 S.W.3d 715, 723 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (police chief's notice of charges, without signed written complaint from person making complaint or internal affairs report, did not satisfy requirements of sections 614.022 and 614.023 of the Government Code). As circumstances warrant, a superintendent of the school district or others may initiate disciplinary action by filing a signed complaint, or complaints may prompt an internal investigation and report by the police department sufficient to satisfy the requirements of chapter 614 of the Government Code.

SUMMARY

Section 37.081(f) of the Education Code, concerning school district peace officers, does not conflict with chapter 614, subchapter B of the Government Code, concerning complaints against certain law enforcement officers, police officers, and fire fighters. A school district police department cannot take disciplinary action on a complaint against a police officer without giving the officer a copy of the complaint signed by the complainant.

Very truly yours,

Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Shirley J. Neeley, Ed.D., Commissioner of Education, Texas Education Agency, to Honorable Greg Abbott, Texas Attorney General (Apr. 6, 2004) (on file with Opinion Committee, also available at www.oag.state.tx.us) [hereinafter Request Letter].

[2] Letter from Richard Cowan, Superintendent of Schools, New Caney Independent School District, to Shirley J. Neeley, Ed.D., Commissioner of Education, Texas Education Agency, at 2 (Mar. 11, 2004) (on file with Opinion Committee, also available at www.oag.state.tx.us) [hereinafter New Caney I.S.D. Letter].