Does a retired federal Customs and Border Protection officer meet Texas firearm standards to carry concealed under federal law?

TX AG Opinion GA-0463: Do federal Customs officer firearm standards meet Texas's?

Plain-English summary

State Representative Frank Corte Jr. asked whether the firearm standards of the federal Bureau of Customs and Border Protection meet the criteria of Texas law. The question mattered because of a 2004 federal statute, the Law Enforcement Officers Safety Act, which lets a qualified retired law enforcement officer carry a concealed firearm in any state. One of the Act's conditions is that the officer "has met the State's standards for training and qualification for active law enforcement officers to carry firearms." So a retired officer who wants to carry under the Act in Texas has to have met the Texas firearm standard, and the request asked whether the Bureau's standards did.

The Attorney General laid out the Texas standard but declined to make the comparison.

On the standard: Texas firearm training and qualifying requirements for active officers come from the Texas Commission on Law Enforcement Officer Standards and Education. Chapter 1701 of the Occupations Code directs the Commission to run training programs for peace officers, including weapons-proficiency training, and to license officers who complete training and demonstrate proficiency. After licensing, an officer must demonstrate firearm proficiency to the employing agency each year; an agency with at least two officers designates a firearms proficiency officer and requires annual demonstrations. The Commission defines firearm proficiency in its administrative rules (37 Texas Administrative Code section 217.21), which set out an inspection, care and cleaning, and a course of fire that meets minimum standards. The rules specify, for example, that for handguns the course is a minimum of 50 rounds fired at ranges from point-blank to at least 15 yards, with at least 20 rounds at or beyond seven yards, including a timed reload, and the minimum passing score is 70 percent for each firearm.

The request attached the Bureau's "Handgun Qualification Course" and asked the AG to determine whether it met the Texas standard. The AG would not. First, that is a factual determination, and the opinion process does not resolve questions of fact. Second, the comparison is more appropriately made by the Commission, the agency that writes and administers the state's firearm proficiency standards. The opinion also noted that meeting the firearm standard is only one piece: to carry under the Act, an individual must also satisfy the Act's other requirements for a qualified retired officer and carry the required photographic identification.

Currency note

This opinion was issued in 2006. 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 federal Law Enforcement Officers Safety Act (18 U.S.C. section 926C), the Texas peace-officer licensing statutes in chapter 1701 of the Occupations Code, and the Commission's firearm proficiency rule (37 Texas Administrative Code section 217.21) have all changed since 2006, including renaming of the state commission. Anyone relying on the specific round counts, distances, or passing scores described here should check current rules.

Who this opinion affected (as of 2006)

Retired law enforcement officers wanting to carry under the federal Act: The opinion explained that meeting Texas's firearm proficiency standard (37 Texas Administrative Code section 217.21) was a precondition, but that meeting it was only one of the Act's requirements, which also included other qualified-retired-officer criteria and carrying the required identification.

Federal agencies and their retirees: The opinion declined to certify that any particular agency's qualification course, including the Bureau of Customs and Border Protection's, met the Texas standard, and pointed to the state Commission as the proper body to make that comparison.

The state licensing commission: The opinion identified the Commission as the agency that writes and administers the state firearm proficiency standard and as the more appropriate decisionmaker for whether an outside agency's course meets it.

Common questions

Did the AG decide that Customs and Border Protection's firearm standards meet Texas's?
No. The opinion declined to decide that. It treated the comparison as a question of fact outside the opinion process and said the determination was better made by the state Commission that sets and administers the standard.

What is the Texas firearm proficiency standard?
The opinion pointed to 37 Texas Administrative Code section 217.21, which requires a weapons inspection, care and cleaning, and a course of fire meeting minimum standards, with a 70 percent minimum passing score for each firearm.

Is meeting the firearm standard enough to carry concealed under the federal Act?
No. The opinion noted that, beyond the firearm proficiency standard, a person must also satisfy the Act's other requirements for a qualified retired law enforcement officer and carry the required photographic identification.

Who should decide whether an agency's course qualifies?
The opinion said the comparison is more appropriately made by the Texas Commission on Law Enforcement Officer Standards and Education, the agency charged with promulgating and administering the standard.

Background and statutory framework

The federal Law Enforcement Officers Safety Act of 2004 lets a qualified retired law enforcement officer carry a concealed firearm in any state if the officer has met that state's training and qualification standards for active officers (18 U.S.C.A. § 926C(c)(5), (c)(1)-(7), (d) (West Supp. 2006); Pub. L. No. 108-277, 118 Stat. 865). Texas standards are set by the Commission under chapter 1701 of the Occupations Code, which requires training programs, weapons-proficiency training, licensing on demonstrated proficiency, and annual demonstrations to the employing agency (Tex. Occ. Code Ann. §§ 1701.251(a), .256, .307(5), .308 (Vernon 2004); § 1701.001(4) (Vernon Supp. 2005); § 1701.355(a), (c); Tex. Code Crim. Proc. Ann. art. 2.12 (Vernon Supp. 2005)).

The Commission's rule defines firearm proficiency and the course of fire, including the 70 percent passing score (37 Tex. Admin. Code § 217.21(b)(1)-(3), (c)(1)-(5), (d) (2006); § 211.1(a)(27)). Because comparing an outside agency's course to that standard is a fact question, the AG declined to resolve it in the opinion process and pointed to the Commission as the appropriate decisionmaker (Tex. Att'y Gen. Op. Nos. GA-0156 (2004), GA-0128 (2003)).

Citations

Statutes:

• 18 U.S.C.A. § 926C(c)(5), (c)(1)-(7), (d) (West Supp. 2006); Law Enforcement Officers Safety Act of 2004, Pub. L. No. 108-277, 118 Stat. 865
• Tex. Occ. Code Ann. §§ 1701.251(a), .256, .307(5), .308 (Vernon 2004); § 1701.001(4) (Vernon Supp. 2005); § 1701.355(a), (c)
• Tex. Code Crim. Proc. Ann. art. 2.12 (Vernon Supp. 2005)
• 37 Tex. Admin. Code § 217.21(b)(1)-(3), (c)(1)-(5), (d) (2006); § 211.1(a)(27)

Prior opinions:

• Tex. Att'y Gen. Op. Nos. GA-0156 (2004), GA-0128 (2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0463
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0463.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 18, 2006

The Honorable Frank J. Corte, Jr.
Chair, Committee on Defense Affairs and State-Federal Relations
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0463

Re: Whether the firearms standards of the Bureau of Customs and Border Protection meet the criteria of Texas law (RQ-0463-GA)

Dear Representative Corte:

The federal Law Enforcement Officers Safety Act of 2004 (the "Act") permits an individual who is a qualified retired law enforcement officer to carry concealed firearms in any state if the individual satisfies the Act's requirements. One of those requirements is that the individual "has met . . . the State's standards for training and qualification for active law enforcement officers to carry firearms." 18 U.S.C.A. § 926C(c)(5) (West Supp. 2006). You ask whether the firearm standards of the federal Bureau of Customs and Border Protection (the "Bureau") meet the training and qualification standards of the State of Texas.

The state's firearm training and qualifying standards for active law enforcement officers are established by the Texas Commission on Law Enforcement Officer Standards and Education (the "Commission"). Chapter 1701 of the Occupations Code requires the Commission to establish and maintain training programs for peace officers or reserve law enforcement officers. See TEX. OCC. CODE ANN. § 1701.251(a) (Vernon 2004); see also id. § 1701.001(4) (Vernon Supp. 2005) (defining "peace officer" as "a person elected, employed, or appointed as a peace officer under" article 2.12 of the Code of Criminal Procedure or other law); TEX. CODE CRIM. PROC. ANN. art. 2.12 (Vernon Supp. 2005) (listing peace officers). The initial training, including weapons proficiency training, must be conducted by Commission staff or by other entities the Commission considers appropriate. See TEX. OCC. CODE ANN. §§ 1701.251(a), .256 (Vernon 2004); see also id. § 1701.308 (stating that an applicant for a peace officer license must demonstrate weapons proficiency), .307(5) (stating that the Commission may issue a license to a person who completes required training and demonstrates weapons proficiency). Thereafter, a peace officer must annually demonstrate firearm proficiency to the employing agency. An agency that employs at least two peace officers must designate a firearms proficiency officer and require each officer employed by the agency to demonstrate weapons proficiency to the firearms proficiency officer at least annually. See id. § 1701.355(a). The Commission is directed to define weapons proficiency for the purposes of the annual demonstration. Id. § 1701.355(c).

The Commission has defined and set out the requirements for "firearm proficiency" in title 37, section 217.21 of the Texas Administrative Code. See 37 TEX. ADMIN. CODE § 217.21 (2006) ("Firearm Proficiency Requirements"). "Firearm proficiency" means the "[s]uccessful completion of the annual firearms proficiency requirements." Id. § 211.1(a)(27) ("Definitions"). Those annual firearm proficiency requirements include an external inspection to determine the safety and functioning of weapons, a demonstration in the care and cleaning of the weapons used, and "a course of fire that meets or exceeds the minimum standards." Id. § 217.21(b)(1)-(3). The minimum firing standards generally require, for a variety of weapons, firing a minimum number of rounds within a specified range of distances. See id. § 217.21(c)(1)-(5). For instance, for handguns, the requirement is "a minimum of 50 rounds, including at least five rounds of duty ammunition, fired at ranges from point-blank to at least 15 yards with at least 20 rounds at or beyond seven yards, including at least one timed reload." Id. § 217.21(c)(1); see also id. § 217.21(c)(2) (shotguns), (3) (rifles), (4) (patrol rifles), (5) (fully automatic weapons). The "minimum passing percentage [must] be 70 for each firearm." Id. § 217.21(d).

You have attached with your request the Bureau's "Handgun Qualification Course" for our review and determination of whether it meets the state's standard as promulgated by the Commission. See Request Letter, supra note 3, at 1 (Appendix 2). This document sets out the various distances, rounds, positions, and time periods in which a service-authorized handgun must be fired and the minimum qualifying score. See id. We cannot, however, determine as a matter of law that the Bureau's qualifying standards meet the state's standard, as required by the Act. First, that question requires a factual determination, and we cannot resolve questions of fact in the opinion process. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0156 (2004) at 6, 10 (stating that fact questions cannot be answered in the opinion process); GA-0128 (2003) at 5 (stating that a question requiring resolution of particular facts is "not one in which this office ordinarily engages in the opinion process"). Second, such a determination is more appropriately made by the Commission, the agency charged with promulgating and administering the state's firearm proficiency standards. Finally, we note that in addition to meeting the state's firearm proficiency standards, an individual must satisfy the other requirements of the Act for a qualified retired law enforcement officer and carry one of the two types of identification in order to carry concealed firearms under the Act. See 18 U.S.C.A. § 926C(c)(1)-(7) (West Supp. 2006) (stating qualified retired law enforcement officer requirements), (d) (describing required photographic identification or photographic identification and certification that a qualified retired law enforcement officer must carry).

SUMMARY

The federal Law Enforcement Officers Safety Act of 2004 (the "Act") permits a qualified retired law enforcement officer to carry concealed firearms if the officer "has met . . . the State's standards for training and qualification for active law enforcement officers to carry firearms." 18 U.S.C.A. § 926C(c)(5) (West Supp. 2006). In Texas, a qualified retired law enforcement officer must meet the firearms proficiency standards set out in title 37, section 217.21 of the Texas Administrative Code. We cannot, however, determine in an attorney general opinion that any particular agency's qualifying standards meet the state's standard, as required by the Act.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee

Footnotes

1. The Bureau of Customs and Border Protection, formerly the Customs Service, see H. Doc. No. 108-32 (2003), is also referred to as the United States Customs and Border Protection.

2. See Law Enforcement Officers Safety Act of 2004, Pub. L. No. 108-277, 118 Stat. 865.

3. See Letter and attachments from Honorable Frank J. Corte, Jr., Chair, Committee on Defense Affairs and State-Federal Relations, Texas House of Representatives, to Honorable Greg Abbott, Attorney General of Texas (Mar. 14, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].