Can a Texas constable-elect take office first and get a peace officer license within 270 days?

Plain-English summary

Texas tightened the qualifications for serving as a county constable, and this opinion sorts out the timing. The Navarro County District Attorney described a person elected constable who was "deferring taking office while he pursues licensure as a peace officer," and asked whether he could instead take office right away and provide evidence of his license within 270 days, or whether he had to wait until he qualified.

Local Government Code section 86.0021 lays out the rules. Subsection (a) gives two routes to eligibility: one for a person who is licensable under specified Occupations Code sections and also holds an associate's degree, is a special investigator, or is an honorably retired peace officer or federal criminal investigator (subsection (a)(1)); and one for a person who is an active or inactive licensed peace officer under chapter 1701 (subsection (a)(2)). Subsection (b) then says that within 270 days after taking office, the constable must give the commissioners court evidence of a permanent peace officer license, and a constable who fails to do that, or fails to keep the license, forfeits the office and is subject to removal by quo warranto under chapter 66 of the Civil Practice and Remedies Code.

The AG made two points and stopped short of a third. First, on when a constable takes office: section 601.003 of the Government Code says the term begins on January 1, and a person elected to a regular term must qualify and assume the duties "on, or as soon as possible after, January 1." The AG read "as soon as possible" to mean within a reasonable time, which is generally a fact question, and declined to fix a date for any particular person. Second, on how subsection (b) reads: the AG rejected the suggestion that the 270-day evidence requirement applies only to the licensed-peace-officer route in (a)(2). It applies to a constable however he or she qualifies, because subsection (c) calls it a "license requirement" that supersedes the Occupations Code licensing rule and operates independently of subsection (a). Third, on whether the 270 days can cure an initial ineligibility, the AG set out the Election Code's general eligibility provision and the line of cases in which Texas courts have measured eligibility against different dates (the day a person seeks office, the day they assume it, or the day of the canvass), but it did not resolve that question or apply it to a specific individual, because it does not find facts in the opinion process.

What this means for you

This describes what the opinion holds. It is the AG's 2021 reading; statutes can change, so confirm current law before relying on it.

Constables and constable-elects

The opinion says a constable elected in November must qualify and assume office on January 1 or as soon as possible (a reasonable time) after, and that the 270-day deadline to show evidence of a permanent peace officer license applies regardless of which eligibility route the constable used. It does not tell any specific person whether deferring office or curing ineligibility within 270 days is permissible; the AG treated those as fact-bound and court questions.

Commissioners courts and county officials

The opinion identifies the commissioners court as the body that receives the constable's evidence of licensure within 270 days, and points to quo warranto under chapter 66 as the removal mechanism if the constable forfeits the office.

District and county attorneys

The opinion frames the eligibility-timing question as one Texas courts have answered in a range of ways, without the AG selecting a single rule, and notes that whether a particular constable assumed office in time or cured ineligibility is a factual determination outside the opinion process.

Common questions

Q: When does a newly elected constable have to take office?
A: Under Government Code section 601.003, the term begins January 1, and the person must qualify and assume the duties on, or as soon as possible after, January 1. The AG read "as soon as possible" as a reasonable time, which is a fact question.

Q: What is the 270-day rule?
A: Local Government Code section 86.0021(b) gives a constable 270 days after taking office to provide the commissioners court evidence of a permanent peace officer license. Failing to do so, or to keep the license, forfeits the office.

Q: Does the 270-day rule apply only to constables who qualified as peace officers?
A: No, per the AG. It applies however the constable qualified, because subsection (c) treats it as a license requirement that operates independently of the eligibility routes in subsection (a).

Q: Can a constable use the 270 days to fix being ineligible at the start?
A: The AG did not decide that. It laid out the Election Code eligibility requirement and the range of dates Texas courts have used to measure eligibility, but said it does not make factual determinations about a specific person.

Q: How is a constable removed for not getting licensed?
A: Through a quo warranto proceeding under chapter 66 of the Civil Practice and Remedies Code, which the statute identifies as the removal mechanism for forfeiture.

Background and statutory framework

The eligibility standard sits in Local Government Code section 86.0021, which references Occupations Code chapter 1701 (including sections 1701.302, 1701.309, 1701.312, and 1701.357) and Code of Criminal Procedure article 2.122(a). The timing of taking office comes from Government Code section 601.003, and the removal mechanism from Civil Practice and Remedies Code chapter 66. The AG used Shreve Chair Co. v. McCarty and WesternGeco, L.L.C. v. Input/Output, Inc. for the "reasonable time" and fact-question points, and Kothmann v. Daniels, Lemons v. State, and Rose v. White for the range of dates by which courts have measured eligibility under the Election Code's general requirement in section 141.001(a)(7). The AG cited prior Opinion KP-0133 for the principle that the office does not make factual determinations in the opinion process.

Citations and references

Statutes:

• Tex. Loc. Gov't Code § 86.0021 (constable eligibility and 270-day licensure evidence)
• Tex. Gov't Code § 601.003 (term begins January 1; assume duties on or as soon as possible after)
• Tex. Occ. Code ch. 1701 (peace officer licensing); Tex. Code Crim. Proc. art. 2.122(a); Tex. Civ. Prac. & Rem. Code ch. 66; Tex. Elec. Code § 141.001(a)(7)

Key cases:

• Kothmann v. Daniels, 397 S.W.2d 940 (Tex. App.—San Antonio 1965, orig. proceeding) (whether "eligible" refers to election or assumption of office)
• Lemons v. State, 570 S.W.2d 593 (Tex. App.—Amarillo 1978, writ ref'd n.r.e.) (candidate ineligible at several points)
• Rose v. White, 536 S.W.2d 395 (Tex. App.—Dallas 1976, orig. proceeding) (eligibility measured at election or assumption of duties)
• Shreve Chair Co. v. McCarty, 246 S.W. 733 (Tex. App.—Fort Worth 1922, no writ) ("as soon as possible" means a reasonable time)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0375
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0375.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

July 7, 2021

The Honorable Will Thompson
Navarro County District Attorney
300 West 3rd Avenue, Suite 301
Corsicana Texas 75110

Opinion No. KP-0375

Re: Eligibility of a newly elected constable under chapter 86 of the Local Government Code (RQ-0394-KP)

Dear Mr. Thompson:

You ask generally about the eligibility of a newly elected constable under chapter 86 of the Local Government Code under certain circumstances.¹ Local Government subsection 86.0021(a) provides that

[a] person is not eligible to serve as constable unless:

(1) the person is eligible to be licensed under Sections 1701.309 and 1701.312, Occupations Code, and:

(A) has at least an associate's degree conferred by an institution of higher education accredited by an accrediting organization recognized by the Texas Higher Education Coordinating Board;

(B) is a special investigator under Article 2.122(a), Code of Criminal Procedure; or

(C) is an honorably retired peace officer or honorably retired federal criminal investigator who holds a certificate of proficiency issued under Section 1701.357, Occupations Code; or

(2) the person is an active or inactive licensed peace officer under Chapter 1701, Occupations Code.

TEX. LOC. GOV'T CODE § 86.0021(a). Thus, the statute provides two avenues for constable eligibility through either subsection 86.0021(a)(1) or subsection 86.0021(a)(2). Subsection 86.0021(b) then provides:

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.

Id. § 86.0021(b).

Background

You tell us that a person elected to the position of constable is "deferring taking office while he pursues licensure as a peace officer," presuming this would allow time to establish eligibility pursuant to subsection 86.0021(a)(2). Id. at 3. Pointing to the evidence-of-licensure requirement of subsection 86.0021(b), you ask whether the person "may take office immediately and provide evidence of licensure as a peace officer within 270 days or is he required to defer taking office until he satisfies the requirements" of section 86.0021 by becoming a licensed peace officer under chapter 1701. Id.

Constable must assume office on, or as soon as possible after, January 1

Subsection 86.0021(b) grants a constable 270 days "after the date" of taking office to "provide . . . evidence that the constable has been issued a permanent peace officer license under Chapter 1701, Occupations Code." TEX. LOC. GOV'T CODE § 86.0021(b). Subsection 601.003(a) of the Government Code provides the date for when a constable takes office, stating that the "regular term of an elective . . . county, or precinct office begins on January 1 of the year following the general election for state and county officers." TEX. GOV'T CODE § 601.003(a). "A person elected to a regular term of office shall qualify and assume the duties of the office on, or as soon as possible after, January 1 of the year following the person's election." Id. § 601.003(b). Thus, a constable elected in the November general election must qualify and assume the duties of that office on January 1, or as soon as possible thereafter. See id. § 601.003. While "as soon as possible" thereafter is undefined in Government Code chapter 601, a court would likely construe it to mean within a reasonable time period. Shreve Chair Co. v. McCarty, 246 S.W. 733, 734 (Tex. App.—Fort Worth 1922, no writ). What is a reasonable time is generally a question of fact. WesternGeco, L.L.C. v. Input/Output, Inc., 246 S.W.3d 776, 785 n.6 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We do not find facts in the opinion process and therefore do not make a factual determination about the eligibility of a specific individual to hold office or by which date an individual must assume office. See Tex. Att'y Gen. Op. No. KP-0133 (2017) at 2.

Construction of Local Government Code subsection 86.0021(b)

1. Application to eligibility requirements of subsection 86.0021(a)

Subsection 86.0021(b)'s 270-day period is to give the constable time to "provide . . . evidence" that he or she has or has been issued a permanent peace officer license under Occupations Code chapter 1701. TEX. LOC. GOV'T CODE § 86.0021(b). You ask us to construe subsection (b) to apply to the eligibility requirement of subsection (a)(2) but not the eligibility requirement of subsection (a)(1). See Request Letter at 2–3. Such a construction is unlikely because it would mean that a person eligible under subsection (a)(1) need never provide evidence that they secured the license or be subject to removal for having not secured the license. Moreover, subsection 86.0021(b) is characterized elsewhere in the statute as a license requirement and as such applies independently of subsection (a) to require a constable to provide evidence of licensure within the specified time period regardless of how he or she is eligible to serve as constable. See TEX. LOC. GOV'T CODE § 86.0021(b), (c) ("The license requirement of Subsection (b) supersedes the license requirement of Section 1701.302, Occupations Code." (emphasis added)). A court therefore is not likely to construe subsection 86.0021(b) as applying to only subsection (a)(2).

2. Application of subsection 86.0021(b)'s time period to cure ineligibility

Given such a construction, the question is whether subsection (b) gives a constable 270 days after taking office to cure his ineligibility. The Election Code generally provides that "[t]o be eligible to be a candidate for, or elected . . . to, a public elective office in this state, a person must [among other items] satisfy any other eligibility requirements prescribed by law for the office." TEX. ELEC. CODE § 141.001(a)(7).

In many judicial opinions considering the scope of eligibility in section 141.001's predecessor in other contexts, Texas courts wrestled with the temporal aspect of "eligibility" by considering the range of possible dates by which a person must satisfy eligibility requirements. The options considered and approved by the various courts for setting eligibility fall between the day the person seeks the office, the day the person is to assume the office, or the day of the canvass. See, e.g., Kothmann v. Daniels, 397 S.W.2d 940, 942 (Tex. App.—San Antonio 1965, orig. proceeding) (per curiam) (considering "whether the word 'eligible,' as used in the Constitution, refers to the time of a person's election to office, or to the time when he assumes the duties of office"); Lemons v. State, 570 S.W.2d 593, 595 (Tex. App.—Amarillo 1978, writ ref'd n.r.e.) (involving candidate who was ineligible at the time of the filing deadline, the time of the primary election, and the time for canvassing election returns); Rose v. White, 536 S.W.2d 395, 396 (Tex. App.—Dallas 1976, orig. proceeding) (considering eligibility as between a person's election to office or a person's assumption of duties).

¹ See Letter from Honorable Will Thompson, Navarro Cnty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Jan. 7, 2021) ("Request Letter"). The Honorable Martin Placke, Lee County Attorney, submitted briefing in response to this request that posed additional questions related to the construction of subsection 86.0021, and our analysis incorporates those questions. See Letters from Honorable Martin Placke, Lee Cnty. Att'y, to Office of the Att'y Gen., Op. Comm. at 1–2 (Jan. 26, 2021), (July 2, 2021) (on file with the Op. Comm.).

S U M M A R Y

Section 86.0021 of the Local Government Code provides the requirements for a constable for eligibility to serve and produce evidence of licensure as a peace officer.

Section 86.0021 does not address the exact date by which a constable must assume office, but under section 601.003 of the Government Code, a person elected to the office of constable in the November general election must qualify and assume the duties of that office on January 1, or as soon as possible thereafter.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee