When does a Texas constable's deadline to get a permanent peace officer license start if he was appointed and then elected?

Plain-English summary

A Texas constable has to prove he holds a permanent peace officer license, and there is a deadline: section 86.0021(b) of the Local Government Code gives a constable 270 days after taking office to give the commissioners court evidence of the license, and a constable who misses the deadline forfeits the office. The Bowie County Criminal District Attorney asked the Attorney General how that deadline works for a constable who was first appointed to fill a vacancy and then later elected to a full term.

The facts were specific. An individual won the March 2000 Democratic primary for constable of precinct three, which (with no Republican opponent) meant he would take the elected office on January 1, 2001. Because the seat was vacant, the commissioners court appointed him on May 1, 2000, to fill the unexpired term in the meantime. He was sworn in to his elective term on January 1, 2001, and provided his license evidence on September 17, 2001. The question was whether he had to obtain the license by January 25, 2001, the 270th day after his appointment, in which case he would have forfeited the office.

The Attorney General concluded the constable was not subject to removal. A constable serves in terms, and by January 25, 2001 (the appointment-term deadline), the appointed term had ended and the new elective term had begun. Relying on Attorney General Opinion DM-322 and section 87.001 of the Local Government Code (an officer may not be removed for an act, or a failure to act, committed before election to office), the opinion explained that on taking the elective term the slate was wiped clean. In fact this case was even stronger than DM-322: the appointed term lasted only about 245 days, less than the 270-day window, so the constable was never actually required to obtain the license for the appointed term at all. Measuring from January 1, 2001, his September 17, 2001 submission came on day 259, within the 270 days, so he complied.

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.

What the opinion meant for those who asked

Constables who are appointed and then elected (what the opinion held for them): The opinion concluded that such a constable's 270-day deadline under section 86.0021(b) runs from the date he takes office for the elective term, and that a failure to obtain licensure during a prior appointed term does not carry over, because taking the elective term wipes the slate clean.

County commissioners courts (what the opinion held for them): The opinion treated the elective-term swearing-in as the date that starts the 270-day clock for furnishing license evidence, so the constable in this case had until that period ran to comply before any forfeiture or quo warranto removal would be in play.

The Bowie County District Attorney, who asked (the scope of the answer): The opinion answered the specific question presented, that this constable had 270 days from January 1, 2001, not from his May 1, 2000 appointment, to furnish the evidence, and so was not subject to removal.

Common questions

When does a constable's 270-day license deadline start?
Under this opinion, on the date the constable takes the office to which the deadline applies. For a constable who was appointed and then elected, it ran from the start of the elective term.

Can a constable be removed for not getting licensed during an earlier term?
No. The opinion, following Attorney General Opinion DM-322 and section 87.001, concluded that an officer cannot be removed for acts or failures to act committed before election to office; the elective term wipes the slate clean.

What happens if a constable misses the 270-day deadline?
Section 86.0021(b) provides that a constable who fails to furnish license evidence, or fails to maintain a permanent license, forfeits the office and is subject to removal in a quo warranto proceeding. The opinion concluded this constable did not miss the deadline that applied to him.

Background and statutory framework

Section 86.0021 of the Local Government Code sets eligibility and licensing rules for constables. A person is not eligible to serve unless he has a high school diploma or equivalency and is eligible to be licensed under sections 1701.309 and 1701.312 of the Occupations Code. Tex. Loc. Gov't Code Ann. § 86.0021(a) (Vernon Supp. 2002). Subsection (b) requires that, "[o]n or before the 270th day after the date a constable takes office," the constable provide the commissioners court evidence of a permanent peace officer license under chapter 1701 of the Occupations Code, and a constable who fails to do so or fails to maintain the license "forfeits the office and is subject to removal in a quo warranto proceeding under Chapter 66, Civil Practice and Remedies Code." Id. § 86.0021(b). Subsection (b) took effect August 30, 1999. Act of May 26, 1999, 76th Leg., R.S., ch. 877, § 1, 1999 Tex. Gen. Laws 3572.

A constable serves by terms, here a four-year term. Tex. Const. art. V, § 18. The opinion drew on Attorney General Opinion DM-322, which held that a constable removed for failing to timely obtain licensure could still run for a later term, because section 87.001 of the Local Government Code provides that "[a]n officer may not be removed under this chapter for an act the officer committed before election to office," a bar the opinion read to reach failures to act as well. Tex. Loc. Gov't Code Ann. § 87.001 (Vernon 1999). DM-322 stated that once a constable is re-elected, the district court cannot remove him for failing to become licensed during a prior term; the slate is wiped clean. Applying that principle (and noting the appointed term here lasted only about 245 days, short of the 270-day window), the opinion concluded the constable's deadline ran from his January 1, 2001 elective-term swearing-in.

Citations

Statutory and constitutional provisions:

• Tex. Loc. Gov't Code Ann. § 86.0021(a), (b) (Vernon Supp. 2002)
• Tex. Loc. Gov't Code Ann. § 87.001 (Vernon 1999)
• Tex. Const. art. V, § 18
• Act of May 26, 1999, 76th Leg., R.S., ch. 877, § 1, 1999 Tex. Gen. Laws 3572

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0467
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0467.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

February 21, 2002

The Honorable Bobby Lockhart
Bowie County Criminal District Attorney
P.O. Box 3030
601 Main
Texarkana, Texas 75504

Opinion No. JC-0467

Re: When a constable is required to furnish evidence that he has been issued a permanent peace officer's license (RQ-0431-JC)

Dear Mr. Lockhart:

You have requested that we consider the situation of a constable who was appointed to fill an unexpired term, and was subsequently elected several months later to a full term. You ask when that individual was required to furnish evidence, pursuant to section 86.0021, Local Government Code, that "he has been issued a permanent peace officer license."[1] We conclude that the constable had 270 days from the date that he was sworn in to his elective term to furnish the evidence required by section 86.0021.

You explain that a particular individual in Bowie County won the Democratic primary election for constable of precinct three in March, 2000. Because there was no Republican candidate on the November ballot, his primary victory was tantamount to election, although he would not assume office as an elected official until January 1, 2001. Because the precinct three position was vacant at the time, however, the Commissioners Court of Bowie County, on May 1, 2000, appointed him to fill the unexpired term. On January 1, 2001, he was sworn in to his elective term as constable for precinct three.

Section 86.0021 of the Local Government Code provides, in relevant part:

(a) A person is not eligible to serve as constable unless the person:

    (1) has a high school diploma or a high school equivalency certificate; and

    (2) is eligible to be licensed under Sections 1701.309 and 1701.312, Occupations Code.

(b) On or before the 270th day after the date a constable takes office, the constable shall provide, to the commissioners court of the county in which the constable serves, evidence that the constable has been issued a permanent peace officer license under Chapter 1701, Occupations Code. A constable who fails to provide evidence of licensure under this subsection or who fails to maintain a permanent license while serving in office forfeits the office and is subject to removal in a quo warranto proceeding under Chapter 66, Civil Practice and Remedies Code.

TEX. LOC. GOV'T CODE ANN. § 86.0021(a), (b) (Vernon Supp. 2002) (emphasis added). Subsection (b) became effective on August 30, 1999, and is thus applicable to the situation you pose. See Act of May 26, 1999, 76th Leg., R.S., ch. 877, § 1, 1999 Tex. Gen. Laws 3572.

The constable provided evidence of his licensure to the Commissioners Court on September 17, 2001, i.e., 259 days after he was sworn in to his elective term.[2] The question you raise is whether the constable was required to obtain the license imposed by subsection (b) by January 25, 2001, the 270th day after his appointment to fill the unexpired term. If he were obliged to do so, subsection 86.0021(b) states that he forfeited his office and was subject to removal in a quo warranto proceeding.

In our opinion, the constable in question was not subject to removal by virtue of his failure to obtain licensure by January 25, 2001. A constable serves by terms, in this case, a term of four years. TEX. CONST. art. V, § 18. On January 25, 2001, the date by which he was required to furnish evidence of licensure for the unexpired term to which he was appointed, that term had been completed, and a new one had begun.

This office considered a similar situation in Attorney General Opinion DM-322. There, a constable had been removed from office for failure to timely obtain licensure as a peace officer. The opinion concluded that such removal did not preclude his running for election to a subsequent term. Tex. Att'y Gen. Op. No. DM-322 (1995) at 5. The opinion was based on section 87.001 of the Local Government Code which provides that "[a]n officer may not be removed under this chapter for an act the officer committed before election to office." TEX. LOC. GOV'T CODE ANN. § 87.001 (Vernon 1999). Attorney General Opinion DM-322 declared:

[S]ection 87.001 precludes the removal of an elected county officer for any acts that the officer committed during a prior term of office. . . . We believe that section 87.001 implicitly prohibits removal for an officer's failure to act, i.e., failure to become licensed. Once a constable is re-elected, therefore, the district court cannot remove the constable for failure to become a licensed peace officer during a prior term. Instead, upon re-election the slate is wiped clean, and pursuant to section 415.053 of the Government Code, the re-elected constable has two years from the date of taking office the second time to become a licensed peace officer. This principle applies whether the constable is re-elected in the same precinct or elected for the first time in a different precinct.

Tex. Att'y Gen. Op. No. DM-322 (1995) at 3-4 (emphasis added).

The principle announced in Attorney General Opinion DM-322 is even more compelling in the circumstances you present here. The individual in question was not only never removed from the position to which he was appointed: he could not have been removed. Subsection 87.001(b) granted him 270 days from the date of his appointment to obtain licensure. But because his appointed term was in existence for only 245 days, he was never required to obtain licensure for that term. As in Attorney General Opinion DM-322, when he took office for his elective term on January 1, 2001, "the slate was wiped clean," and the constable had 270 days from that date to provide evidence of his licensure.

We conclude that the constable of precinct three of Bowie County had 270 days from the date he was sworn in to office for his elective term, January 1, 2001, to furnish to the Commissioners Court of Bowie County the evidence of licensure required by subsection 86.0021(b) of the Local Government Code.

SUMMARY

The constable of precinct three of Bowie County had 270 days from the date he was sworn in to office for his elective term, January 1, 2001, to furnish to the Commissioners Court of Bowie County the evidence of licensure required by subsection 86.0021(b) of the Local Government Code.

Yours very truly,

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

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Bobby Lockhart, Bowie County Criminal District Attorney, to Honorable John Cornyn, Texas Attorney General at 2 (Sept. 6, 2001) (on file with Opinion Committee).

[2] Letter from Honorable Benny Barrett, Constable, Precinct 3, Bowie County, to Ms. Susan D. Gusky, Chair, Opinion Committee, Office of Attorney General (Nov. 9, 2001) (on file with Opinion Committee).