If someone served as a Texas constable before 1985, left office, and then came back to the job years later, do they still get the old grandfather exemption from peace officer licensing requirements, or do they now have to get certified like a new officer?

Texas AG Opinion JM-1149: Grandfather Exemption Ends When a Constable's Service Is Interrupted

Plain-English summary

A member of the Texas House Financial Institutions Committee asked whether a constable who held office from January 1, 1981, through December 31, 1984, and then again from January 1, 1989, forward, had to meet the licensing and certification requirements of the Commission on Law Enforcement Officer Standards and Education under chapter 415 of the Government Code.

The commission's rule implementing section 415.015(c) of the Government Code exempted a constitutional peace officer, including a constable, who "first assumed office before September 1, 1985," even if later re-elected after that date, unless there was a break in office and the officer was then re-elected to that or another constitutional peace officer position after that date. The Attorney General concluded that the constable in the request did not qualify for the exemption, because there was a break in service from December 31, 1984, to January 1, 1989. That gap meant the constable had not been in continuous service in the office immediately preceding September 1, 1985, so the rule's "grandfather" protection, meant for officers whose service was continuous through that date, did not apply. The opinion concluded the constable was required to meet the commission's certification requirements.

Currency note

This opinion was issued in 1990. 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.

Common questions

Does a constable who served before 1985 automatically keep a lifetime exemption from peace officer certification requirements?
Not if there was a break in service. The opinion held that the exemption under the commission's rule protects officers whose service was continuous through September 1, 1985; a gap in office ends that protection even for someone who served both before and after the gap.

What rule did the Attorney General rely on to reach this conclusion?
Commission on Law Enforcement Officer Standards and Education Rule 211.82, interpreting Government Code section 415.015(c), which exempts a constable or other constitutional peace officer who first assumed office before September 1, 1985, "unless there was a break in office and that officer was then re-elected after that date to that or another office as a constitutional peace officer."

Did the Attorney General find the commission's rule inconsistent with the statute?
No. The opinion concluded the commission's interpretation in Rule 211.82 was consistent with the statute and with how courts have generally construed "grandfather" clauses, which protect continuous practice up to the effective date of a new licensing requirement.

Background and statutory framework

Chapter 415 of the Government Code authorizes the Commission on Law Enforcement Officer Standards and Education to adopt rules for licensing peace officers, county jailers, and public security officers, including minimum educational, training, physical, mental, and moral standards. Section 415.015(c) exempts from that chapter a constable or other officer or county jailer "elected under the Texas Constitution before September 1, 1985," and does not affect a sheriff. Commission Rule 211.82 implemented that exemption for constitutional peace officers elected or appointed after September 1, 1985, but carved out constables and other constitutional peace officers who first assumed office before that date, "even if re-elected after that date," unless there was a break in office followed by re-election after that date.

The opinion applied the general legal understanding of "grandfather" clauses, quoting the Arizona Supreme Court's description in State Board of Dispensing Opticians v. Schwab: such clauses "permit those who have been in continuous practice in the particular occupation for a prescribed period immediately preceding the effective date of the act to receive a license." Because the constable's service in the request was not continuous through September 1, 1985 (it ended in 1984 and did not resume until 1989), the opinion found the exemption did not apply.

Citations

Statutory provisions:

• TEX. GOV'T CODE §§ 415.010, 415.015(c), 415.053

Cases:

• State Bd. of Dispensing Opticians v. Schwab, 380 P.2d 784 (Ariz. 1963)

Agency rule cited: Commission on Law Enforcement Officer Standards and Education Rule 211.82, 12 Tex. Reg. 4851 (1987).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1149
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1149.pdf

Original opinion text

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

March 21, 1990

Honorable Ashley Smith
Chairman
Financial Institutions Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-1149

Re: Certification requirements for a constable who has previously held the office (RQ-1889)

Dear Representative Smith:

You ask whether a person who held the office of constable from January 1, 1981, through December 31, 1984, and thereafter from January 1, 1989, to present is required to meet the requirements for licensing or certification by the Commission on Law Enforcement Officer Standards and Education under chapter 415 of the Government Code.

Section 415.010 of the Government Code provides that the Commission on Law Enforcement Officer Standards and Education may:

(1) adopt rules for the administration of this chapter . . . .

(10) 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.

Section 415.015 of the Government Code provides in pertinent part:

(c) This chapter does not affect a constable or other officer or county jailer elected under the Texas Constitution before September 1, 1985, and does not affect a sheriff. (Emphasis added.)

The commission promulgated rule 211.82, 12 Tex. Reg. 4851 (1987), providing:

(i) The commission shall issue a permanent peace officer license to any peace officer, elected or appointed under the Texas Constitution after September 1, 1985, if that officer meets all the minimum standards for peace officer licensing, including the training and testing requirements. Such license shall be subject to revocation as any other peace officer license issued by the commission. This subsection shall not apply to:

(1) a sheriff; or

(2) a constable or any other constitutional peace officer who first assumed office before September 1, 1985, even if re-elected after that date unless there was a break in office and that officer was then re-elected after that date to that or another office as a constitutional peace officer. (Emphasis added.)

The courts will give weight to an agency's interpretation of a statute, but will not respect an agency's interpretation contrary to the clear meaning of an unambiguous statute. 2 Tex. Jur. 3d, Administrative Law § 7.

We do not believe that rule 211.82 is contrary to the meaning of section 415.015. The exemption to training and educational requirements afforded a constable elected before September 1, 1985, appears to be a provision commonly referred to as the "grandfather" clause. We find the interpretation given section 415.015 by the commission in rule 211.82 to be consistent with the construction the courts have given the "grandfather" clause. The Supreme Court of Arizona in State Bd. of Dispensing Opticians v. Schwab, 380 P.2d 784 (1963), in addressing the meaning of the "grandfather" clause stated:

"Grandfather" clauses are generally found where occupations not formerly regulated by statute are brought under legislative control. They permit those who have been in continuous practice in the particular occupation for a prescribed period immediately preceding the effective date of the act to receive a license.

Under your scenario there was a break in the constable's service from December 31, 1984, to January 1, 1989. Therefore, the constable had not been in continuous service in that office immediately preceding September 1, 1985. We conclude that the constable in question does not come within the exception to the officer licensing requirements provided in subsection (c) of section 415.015.[1]

SUMMARY

A constable whose tenure of office ceased on December 31, 1984, and did not resume until January 1, 1989, is required to meet the requirements for licensing by the Commission on Law Enforcement Officer Standards and Education.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

[1] Section 415.053 of the Government Code allows an officer elected under the Texas Constitution two years after the officer takes office to complete the commission's licensing requirements.