Does federal law override Texas's concealed-carry proficiency certificate rules for retired police?

TX AG Opinion GA-0564: Does federal law preempt Texas's retired-officer weapons proficiency statute?

Plain-English summary

A federal law, 18 U.S.C. section 926C, lets a "qualified retired law enforcement officer" carry a concealed firearm anywhere in the country if the officer also carries identification showing the officer has, within the past year, met training-and-qualification standards for active officers. Texas has its own statute, Occupations Code section 1701.357, under which an honorably retired peace officer can get a certificate of weapons proficiency from the agency he retired from. The Kerr County Sheriff, drafting procedures for issuing those certificates, spotted what looked like conflicts with the federal law, and the Kerr County Attorney asked whether the federal statute preempts parts of the Texas one.

The Attorney General concluded the federal law does not preempt section 1701.357. The key point is that the two statutes do different jobs. The federal law is what actually authorizes a retired officer to carry. Section 1701.357 does not authorize anyone to carry; it is just one method for getting the certificate and photo ID that the federal law demands. Because there is no conflict between authorizing carry (federal) and supplying the proof (state), there is nothing to preempt.

The county raised two specific worries. First, section 1701.357 as then written was limited to retired officers who were "receiving" retirement benefits, which left out an officer who has a nonforfeitable right to a pension but is not yet drawing it (a person who can be "qualified" under the federal law). The Attorney General answered that such an officer could still get certified through a different Texas route, Government Code section 411.199, which covers officers "entitled to receive" a pension, by demonstrating proficiency under Occupations Code section 1701.355. So, reading the Texas scheme as a whole, every honorably retired officer who is entitled to or receiving a pension had a way to obtain the certificate the federal law required.

Second, the county noted that a section 1701.357 certificate lasts two years, while the federal law requires annual certification. The Attorney General pointed to section 1701.357(d), which expressly lets a retired officer request an annual evaluation and certificate. So there was no conflict, and because the federal law requires it, a retired peace officer who wants to carry a concealed firearm in Texas must recertify every year.

Currency note

This opinion was issued in 2007. 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.

This opinion expressly limited itself to applications for weapons proficiency filed before September 1, 2007. The opinion noted that House Bill 638 (80th Legislature, 2007) amended section 1701.357(c), effective September 1, 2007, to replace the "receiving benefits" requirement with an "entitled to receive a pension or annuity" requirement, which the Attorney General read as itself satisfying the federal nonforfeitable-right test. Both the state statutes and 18 U.S.C. section 926C have been amended in the years since. Confirm current federal and Texas law before relying on any of this.

Who this opinion affected (as of 2007)

County sheriffs and local law enforcement agencies: The opinion told them their section 1701.357 certificate procedures did not have to mirror the federal statute, because the federal law is what authorizes carry and the certificate is just the proof. It also confirmed agencies should allow annual recertification for officers who need it.

Honorably retired peace officers: The opinion explained that those receiving a pension could certify under section 1701.357, those entitled to a pension but not yet drawing it could certify under Government Code section 411.199 and Occupations Code section 1701.355, and that anyone wishing to carry under the federal law had to recertify annually.

Officers who applied on or after September 1, 2007: The opinion warned that its conclusions applied only to applications filed before that date, because House Bill 638's amendment to section 1701.357(c) then took effect.

Common questions

Does federal law let retired officers ignore the Texas certificate rules?
No. The Attorney General concluded 18 U.S.C. section 926C does not preempt Occupations Code section 1701.357. The federal law authorizes a qualified retired officer to carry; the Texas statute is one way to obtain the proof of proficiency the federal law requires.

What if a retired officer has a pension right but is not yet collecting it?
That officer could still be certified, just under a different Texas provision. Government Code section 411.199 applies to officers "entitled to receive" a pension or annuity, so reading the Texas statutes together, all qualified retirees had a path to certification.

Does the certificate last two years or one?
A section 1701.357 certificate expired on its second anniversary, but section 1701.357(d) let a retired officer request an annual evaluation and certificate. Because the federal law requires annual certification, an officer who wants to carry a concealed firearm in Texas must recertify every year.

Did this opinion settle the rules going forward?
Only partly. The opinion expressly limited its conclusions to applications filed before September 1, 2007, the effective date of House Bill 638's amendment to section 1701.357(c).

Background and statutory framework

Federal preemption rests on the Supremacy Clause, which makes federal law "the supreme Law of the Land," so federal law preempts conflicting state law (U.S. Const. art. VI, cl. 2; Delta Air Lines, Inc. v. Black, 116 S.W.3d 745, 748 (Tex. 2003); Mills v. Warner-Lambert Co., 157 S.W.3d 424, 426 (Tex. 2005) (citing Maryland v. Louisiana, 451 U.S. 725, 746 (1981); Am. Cyanamid Co. v. Geye, 79 S.W.3d 21, 23 (Tex. 2002))). Preemption can be express, field, or conflict preemption, the last arising when compliance with both laws is impossible or the state law obstructs Congress's objectives (Turoff v. McCaslin, 222 S.W.3d 664, 668 (Tex. App.-Waco 2007, no pet.); Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (1991); In re Global Santa Fe Corp., No. 14-06-00625-CV, 2006 WL 3716495, at *3 (Tex. App.-Houston [14th Dist.] Dec. 19, 2006, pet. filed)). Section 926C opens "[n]otwithstanding any other provision of the law of any State," which expressly preempts conflicting state law (18 U.S.C. § 926C(a) (Supp. IV 2004)), and its congressional intent is described in the House Report (H.R. Rep. No. 108-560, at 12 (2004), as reprinted in 2004 U.S.C.C.A.N. 805, 809).

The federal statute authorizes a "qualified retired law enforcement officer," meaning among other things one with a nonforfeitable right to retirement benefits, to carry a concealed firearm if carrying one of two forms of identification showing the officer met active-officer training standards within the past year (18 U.S.C. § 926C(a), (c)-(d) (Supp. IV 2004); id. § 926C(c)(4)). The Texas certificate statute, by contrast, does not authorize carrying; it lets an honorably retired peace officer demonstrate proficiency and obtain a certificate and identification from the agency, with the certificate expiring after two years but available annually on request (Tex. Occ. Code Ann. § 1701.357 (Vernon Supp. 2006); see id. § 1701.355(a), (c) (Vernon 2004); 37 Tex. Admin. Code §§ 217.21(c), 221.31(c), 221.3 (2007)). A certificate also functions to except a retired officer from Penal Code carrying offenses (Tex. Penal Code Ann. § 46.02(a) (Vernon 2003); §§ 46.03(a), .15(a)(5) (Vernon Supp. 2006); § 46.01(3), (5) (Vernon 2003)).

A second Texas route exists through the concealed-handgun licensing subchapter: Government Code section 411.199 lets the Department of Public Safety license an honorably retired officer "entitled to receive a pension or annuity," who must maintain the proficiency required under Occupations Code section 1701.355 (Tex. Gov't Code Ann. § 411.199(c), (e) (Vernon 2005); § 411.171(3), (5) (Vernon Supp. 2006); Tex. Occ. Code Ann. § 1701.355(c) (Vernon 2004); the proficiency requirement was recodified from former Government Code section 415.035, see Act of May 13, 1999, 76th Leg., R.S., ch. 388, §§ 1, 6(b)(1), 7, 1999 Tex. Gen. Laws 1431). Reading these together, the Attorney General concluded section 926C did not preempt section 1701.357, because section 411.199 supplied certification for retirees entitled to but not yet receiving benefits, and section 1701.357(d) allowed the annual recertification the federal law requires. The opinion's conclusions were limited to applications filed before September 1, 2007, when House Bill 638 amended section 1701.357(c) (Act of May 24, 2007, 80th Leg., R.S., H.B. 638, § 2).

Citations

Constitution, statutes, rules, and legislative materials:

• U.S. Const. art. VI, cl. 2
• 18 U.S.C. § 926C (Supp. IV 2004); § 926C(a), (c)-(d); § 926C(c)(4); § 926C(d)(1), (2)(B)
• Tex. Occ. Code Ann. § 1701.355(a), (c) (Vernon 2004)
• Tex. Occ. Code Ann. § 1701.357 (Vernon Supp. 2006)
• Tex. Gov't Code Ann. § 411.171(3), (5) (Vernon Supp. 2006)
• Tex. Gov't Code Ann. § 411.199(c), (e) (Vernon 2005)
• Tex. Penal Code Ann. § 46.02(a) (Vernon 2003); §§ 46.03(a), .15(a)(5) (Vernon Supp. 2006); § 46.01(3), (5) (Vernon 2003)
• 37 Tex. Admin. Code §§ 217.21(c), 221.31(c) (2007); § 221.3 (2007)
• H.R. Rep. No. 108-560, at 12 (2004), as reprinted in 2004 U.S.C.C.A.N. 805, 809
• Act of May 13, 1999, 76th Leg., R.S., ch. 388, §§ 1, 6(b)(1), 7, 1999 Tex. Gen. Laws 1431
• Act of May 24, 2007, 80th Leg., R.S., H.B. 638, § 2

Cases:

• Delta Air Lines, Inc. v. Black, 116 S.W.3d 745, 748 (Tex. 2003)
• Mills v. Warner-Lambert Co., 157 S.W.3d 424, 426 (Tex. 2005)
• Maryland v. Louisiana, 451 U.S. 725, 746 (1981)
• Am. Cyanamid Co. v. Geye, 79 S.W.3d 21, 23 (Tex. 2002)
• Turoff v. McCaslin, 222 S.W.3d 664, 668 (Tex. App.-Waco 2007, no pet.)
• Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (1991)
• In re Global Santa Fe Corp., No. 14-06-00625-CV, 2006 WL 3716495, at *3 (Tex. App.-Houston [14th Dist.] Dec. 19, 2006, pet. filed)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0564
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0564.pdf

Original opinion text

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

GREG ABBOTT

August 15, 2007

The Honorable M. Rex Emerson
Kerr County Attorney
County Courthouse, Suite BA-103
700 Main Street
Kerrville, Texas 78028

Opinion No. GA-0564

Re: Whether 18 U.S.C. § 926C preempts portions of Texas Occupations Code section 1701.357 (RQ-0572-GA)

Dear Mr. Emerson:

You state that the Kerr County Sheriff, while developing written procedures for issuing or denying certificates of weapons proficiency to honorably retired peace officers under section 1701.357(c) of the Texas Occupations Code, discovered provisions in a federal law, 18 U.S.C. § 926C, that he believes conflict with the state law.[1] Compare 18 U.S.C. § 926C (Supp. IV 2004) ("Carrying of concealed firearms by qualified retired law enforcement officers"), with TEX. OCC. CODE ANN. § 1701.357(c) (Vernon Supp. 2006) ("Weapons Proficiency for Certain Retired Peace Officers and Federal Criminal Investigators"). You therefore ask whether 18 U.S.C. § 926C, which authorizes certain retired peace officers to carry concealed handguns, preempts portions of section 1701.357 of the Texas Occupations Code. See 18 U.S.C. § 926C(a) (Supp. IV 2004); TEX. OCC. CODE ANN. § 1701.357(b)-(c) (Vernon Supp. 2006); Request Letter, supra note 1, at 1-2; Brief attached to Request Letter, supra note 1, at 1-4. You ask in particular whether an honorably retired peace officer who has a nonforfeitable right to retirement benefits, and who may therefore be qualified to carry a concealed firearm under 18 U.S.C. § 926C(c)(4), but who is not yet receiving the benefits may obtain a certificate of proficiency under section 1701.357(c) of the Texas Occupations Code, which appears to be limited to retired officers who are receiving benefits. See Brief attached to Request Letter, supra note 1, at 2. And you ask whether a retired peace officer who carries a concealed firearm under 18 U.S.C. § 926C(a) must obtain a certificate of proficiency under section 1701.357(c) every year, as federal law requires, or every two years, as you suggest state law requires. See id.

I. Relevant Law

A. State law

Section 1701.357 permits an "honorably retired peace officer" to obtain, in certain circumstances, a certificate of weapons proficiency from the local agency from which the officer retired:

(b) The head of a state or local law enforcement agency may allow an honorably retired peace officer an opportunity to demonstrate weapons proficiency if the retired officer provides to the agency a sworn affidavit stating that:

(1) the officer honorably retired after not less than a total of 15 years of service as a commissioned officer with one or more state or local law enforcement agencies;

(2) the officer's license as a commissioned officer was not revoked or suspended for any period during the officer's term of service as a commissioned officer; and

(3) the officer has no psychological or physical disability that would interfere with the officer's proper handling of a handgun.

(c) The agency shall establish written procedures for the issuance or denial of a certificate of proficiency under this section. The agency shall issue the certificate to a retired officer who satisfactorily demonstrates weapons proficiency under Subsection (b), provides proof that the officer is receiving retirement benefits on the basis of service with a state or local law enforcement agency, and satisfies the written procedures established by the agency. The agency shall maintain records of any retired officer who holds a certificate issued under this section.

(d) A certificate issued under this section expires on the second anniversary of the date the certificate was issued. A retired officer to whom this section applies may request an annual evaluation of weapons proficiency and issuance of a certificate of proficiency as needed to comply with applicable federal or other laws.

(i) On request of a retired officer who holds a certificate of proficiency under this section, the head of a state or local law enforcement agency may issue to the retired officer identification that indicates that the officer retired from the agency. An identification under this subsection must include a photograph of the retired officer.

TEX. OCC. CODE ANN. § 1701.357 (Vernon Supp. 2006) (emphasis added); see also id. § 1701.355(a) (Vernon 2004) (requiring a local law enforcement agency to designate a firearms proficiency officer if the agency employs more than one peace officer); 37 TEX. ADMIN. CODE §§ 217.21(c), 221.31(c) (2007) (Tex. Comm'n on Law Enforcement Officer Standards & Educ., Firearms Proficiency Requirements; Retired Peace Officer Firearms Proficiency).

Texas law also provides another means by which a retired peace officer may obtain a certificate of proficiency. Under Texas Government Code chapter 411, subchapter H, a certificate of proficiency is necessary to apply to the Department of Public Safety (the "DPS") for a license to carry a concealed handgun.[2] See TEX. GOV'T CODE ANN. § 411.171(3), (5) (Vernon Supp. 2006) (defining "concealed handgun" and "handgun"). Section 411.199 authorizes the DPS to issue a concealed-handgun license to an "honorably retired and physically and emotionally fit" peace officer so long as the peace officer demonstrates the appropriate proficiency:

(c) The [DPS] may issue a license under this subchapter to an applicant [who is] honorably retired and physically and emotionally fit to possess a handgun. In this subsection, "honorably retired" means the applicant:

(3) is entitled to receive a pension or annuity for service as a law enforcement officer or is not entitled to receive a pension or annuity only because the law enforcement agency that employed the applicant does not offer a pension or annuity to its employees.

(e) A retired peace officer who obtains a license under this subchapter must maintain, for the category of weapon licensed, the proficiency required for a peace officer under [Occupations Code section 1701.355].[3] The [DPS] or a local law enforcement agency shall allow a retired peace officer of the [DPS] or agency an opportunity to annually demonstrate the required proficiency. The proficiency shall be reported to the [DPS] on application and renewal.

Id. § 411.199(c), (e) (Vernon 2005) (footnote added); see also TEX. OCC. CODE ANN. § 1701.355(c) (Vernon 2004) (requiring the Texas Commission on Law Enforcement Officer Standards and Education to "define weapons proficiency for purposes of this section"); 37 TEX. ADMIN. CODE § 221.3 (2007) (Tex. Comm'n on Law Enforcement Officer Standards & Educ., Peace Officer Proficiency) (setting out proficiency requirements for peace officers). Though section 411.199(c) pertains primarily to licenses, not certificates of proficiency, subsection (e) indicates that an applicant must demonstrate proficiency as required by Occupations Code section 1701.355. See TEX. GOV'T CODE ANN. § 411.199(e) (Vernon 2005).

B. Federal law

Having set out the relevant state law, we turn to the federal statute you raise, 18 U.S.C. § 926C. See Request Letter, supra note 1, at 1. Section 926C authorizes a "qualified retired law enforcement officer" to carry a concealed firearm in certain circumstances:

(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b) [stating that section 926C does not affect private entities', local governments', or states' authority to restrict the possession of concealed firearms on their own property].

(c) As used in this section, the term "qualified retired law enforcement officer" means an individual who-

(4) has a nonforfeitable right to benefits under the retirement plan of the agency . . . .

(d) The identification required by this subsection is-

(1) a photographic identification issued by the agency from which the individual retired from service as a law enforcement officer that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the agency to meet the standards established by the agency for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm; or

(2)(A) a photographic identification issued by the agency from which the individual retired from service as a law enforcement officer; and

(B) a certification issued by the State in which the individual resides that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the State to meet the standards established by the State for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm.

18 U.S.C. § 926C(a), (c)-(d) (Supp. IV 2004) (emphasis added).

II. Analysis

You suggest that 18 U.S.C. § 926C preempts section 1701.357 of the Texas Occupations Code in relevant part. See Request Letter, supra note 1, at 1. "Federal preemption of state law is grounded in the Supremacy Clause of the United States Constitution," which declares the laws of the United States to be "the supreme Law of the Land." U.S. CONST. art. VI, cl. 2; Delta Air Lines, Inc. v. Black, 116 S.W.3d 745, 748 (Tex. 2003). Federal law thus preempts conflicting state law, and preempted state law has no effect. See Mills v. Warner-Lambert Co., 157 S.W.3d 424, 426 (Tex. 2005) (per curiam) (citing Maryland v. Louisiana, 451 U.S. 725, 746 (1981); Am. Cyanamid Co. v. Geye, 79 S.W.3d 21, 23 (Tex. 2002)).

The federal law at issue here expressly preempts state law to the extent the state law conflicts with the federal law.[4] See 18 U.S.C. § 926C(a) (Supp. IV 2004) ("Notwithstanding any other provision of the law of any State . . . ."). Such a conflict arises when an individual physically cannot comply with both the federal and state statutes or when the state law "stands as an obstacle" to accomplishing and executing Congress's full purposes and objectives. Cf. Turoff, 222 S.W.3d at 668-69 (explaining conflict preemption) (quoting Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (1991)).

The federal statute, 18 U.S.C. § 926C, does not preempt Texas Occupations Code section 1701.357. The federal law authorizes a qualified retired law enforcement officer to carry a concealed firearm if the retired officer carries one of two forms of identification indicating that the officer has, within one year before the date of carrying the concealed firearm, passed a test or been found to meet certain standards "for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm." 18 U.S.C. § 926C(d) (Supp. IV 2004). Thus, the retired officer may carry (1) a photographic identification indicating that agency from which the officer retired found the officer to meet agency-established standards, or (2) a photographic identification issued by the agency from which the officer retired as well as a State-issued certification indicating that the State has found the officer to meet State-established standards. Id.; see also H.R. REP. NO. 108-560, at 12 (2004), as reprinted in 2004 U.S.C.C.A.N. 805, 809 (declaring 18 U.S.C. § 926C's intent). Section 1701.357 of the Texas Occupations Code, by contrast, does not by itself authorize a retired law enforcement officer to carry a concealed handgun; it pertains only to a method by which certain retired officers may obtain the necessary certification and photo identification. See TEX. OCC. CODE ANN. § 1701.357 (Vernon Supp. 2006).

As you suggest, Texas Occupations Code section 1701.357 does not provide a means by which a retired officer who has a "nonforfeitable right to benefits" but who is not yet receiving benefits may obtain a certificate of proficiency, and you perceive this as an obstacle to exercising the authority to carry a firearm granted under federal law. See 18 U.S.C. § 926C (Supp. IV 2004); TEX. OCC. CODE ANN. § 1701.357(c) (Vernon Supp. 2006); Request Letter, supra note 1, at 1. A retired officer who is entitled to but not yet receiving benefits may, however, become certified to carry a concealed weapon under section 411.199 of the Texas Government Code, which applies to all retired officers who are "entitled to receive a pension or annuity for service as" an officer, if the retired officer demonstrates proficiency under section 1701.355 of the Texas Occupations Code. TEX. GOV'T CODE ANN. § 411.199(c)(3), (e) (Vernon 2005); TEX. OCC. CODE ANN. § 1701.355(c) (Vernon 2004); 37 TEX. ADMIN. CODE § 221.3 (2007) (Tex. Comm'n on Law Enforcement Officer Standards & Educ., Peace Officer Proficiency) (setting out proficiency requirements for peace officers); see also supra note 3 (explaining that section 1701.355 of the Texas Occupations Code was recodified from section 415.035 of the Texas Government Code). In this way, all officers who are qualified under federal law to carry a concealed handgun may obtain the prerequisite certification. See 18 U.S.C. § 926C(d)(2)(B) (Supp. IV 2004). Looking at the Texas statutory scheme as a whole, therefore, section 1701.357 of the Occupations Code and section 411.199 of the Government Code provide means by which all honorably retired officers who are entitled to or receiving a pension or annuity from their employing agencies may obtain the certificate of weapons proficiency required by 18 U.S.C. § 926C.

You also suggest that section 1701.357(c) of the Texas Occupations Code, which indicates that a certificate issued under section 1701.357 is effective for two years, conflicts with the requirement in 18 U.S.C. § 926C that a qualified retired law enforcement officer obtain certification annually. See Request Letter, supra note 1, at 2. But section 1701.357(d) expressly permits a retired officer to "request an annual evaluation of weapons proficiency and issuance of a certificate of proficiency." TEX. OCC. CODE ANN. § 1701.357(d) (Vernon Supp. 2006). Thus, section 1701.357(d) does not preclude a retired officer who may obtain certification under that section from certifying annually, consistently with the requirements of 18 U.S.C. § 926C. Moreover, to directly answer your question, because the federal law requires annual certification, a retired peace officer who wishes to carry a concealed firearm in Texas must be certified annually. See 18 U.S.C. § 926C(d)(1), (2)(B) (Supp. IV 2004).

SUMMARY

A federal statute, 18 U.S.C. § 926C, which authorizes a qualified retired law enforcement officer to carry a concealed firearm if the officer also carries proof that he or she has demonstrated weapons proficiency under state law, does not preempt Texas Occupations Code section 1701.357, which provides a means by which some honorably retired peace officers may obtain the proof required by federal law. Those retired peace officers who cannot obtain certification under section 1701.357 may do so under section 411.199 of the Texas Government Code and section 1701.355 of the Texas Occupations Code.

An honorably retired peace officer who is certified as proficient under Texas Occupations Code section 1701.357 must recertify on an annual basis.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable M. Rex Emerson, Kerr County Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Feb. 15, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] A certificate of proficiency is also necessary to except an honorably retired peace officer from provisions in the Texas Penal Code that criminalize the carrying of a firearm, particularly in certain locations. See TEX. PENAL CODE ANN. § 46.02(a) (Vernon 2003), §§ 46.03(a), .15(a)(5) (Vernon Supp. 2006); see also id. § 46.01(3), (5) (Vernon 2003) (defining the terms "firearm" and "handgun").

[3] The statute actually requires a retired peace officer to maintain "the proficiency required for a peace officer under Section 415.035." TEX. GOV'T CODE ANN. § 411.199(e) (Vernon 2005). Government Code section 415.035 was repealed in 1999 and recodified as Occupations Code section 1701.355. See Act of May 13, 1999, 76th Leg., R.S., ch. 388, §§ 1, 6(b)(1), 7, 1999 Tex. Gen. Laws 1431, 2223, 2440.

[4] Federal law may preempt state law in one of three ways: (1) Congress may preempt "all state law in a particular field" explicitly; (2) Congress may preempt state law implicitly "when the scheme of federal regulation is sufficiently comprehensive to reasonably infer that Congress has 'left no room' for supplementary state regulation"; or (3) "even where Congress has not displaced state regulation in a particular field, federal law will nullify state law to the extent they actually conflict." Turoff v. McCaslin, 222 S.W.3d 664, 668 (Tex. App.-Waco 2007, no pet.); In re Global Santa Fe Corp., No. 14-06-00625-CV, 2006 WL 3716495, at *3 (Tex. App.-Houston [14th Dist.] Dec. 19, 2006, pet. filed); accord Mills, 157 S.W.3d at 426-27.

[5] The Texas Legislature adopted a bill that amends section 1701.357(c) by replacing the requirement that the officer be receiving retirement benefits with a requirement that the officer be "entitled to receive a pension or annuity for service with a state or local law enforcement agency or is not entitled to receive a pension or annuity only because the [employing] law enforcement agency . . . does not offer a pension or annuity." Act of May 24, 2007, 80th Leg., R.S., H.B. 638, § 2 (to be codified at TEX. OCC. CODE ANN. § 1701.357(c)). In our opinion, an officer who is "entitled to receive a pension or annuity" under the amendment to section 1701.357(c) has a nonforfeitable right to benefits for purposes of 18 U.S.C. § 926C(c)(4). See 18 U.S.C. § 926C(c)(4) (Supp. IV 2004). The amended section 1701.357(c) consequently will permit a retired law enforcement officer who is entitled to receive a pension or annuity to obtain a proficiency certificate under section 1701.357, whether or not the officer is already receiving benefits. See Act of May 24, 2007, 80th Leg., R.S., H.B. 638, § 2 (to be codified at TEX. OCC. CODE ANN. § 1701.357(c)). Nevertheless, the amendments to section 1701.357(c) apply only to applications for weapons proficiency filed on or after September 1, 2007. See id. § 4(b). An application filed before that date is subject to the current, unamended statute. See id. The conclusions reached in this opinion thus apply only to applications filed before September 1, 2007.