PLEASE NOTE: Nothing in this publishing or on this website should be taken as legal advice.
FINALLY: A District Attorney Has Requested a Texas Attorney General Opinion on a TCOLE Separation of Licensee Form (F-5)
The Fort Bend County District Attorney, Brian Middleton, has submitted a “Request for Opinion Regarding TCOLE F-5 Form,” to the Texas Attorney General’s Office. A opinion issued by the Texas Attorney General’s Office is not technically legally binding; however, it is highly persuasive and is generally considered to be an authority until or unless it is overruled by legislative or a court action.
The request submitted by the District Attorney was given the reference of RQ-0464-KP by the Texas Attorney General’s Office.
TCOLE is the abbreviation for Texas Commission on Law Enforcement and is a regulatory state agency. It has a mission to establish and enforce standards to ensure the people of Texas are served by highly trained license holders. As part of the TCOLE mission, it tracks the hiring and discharge of license holders.
A license holder, for the purpose of a TCOLE licensure, is considered a peace officer, corrections officer, or a telecommunications officer.
Now, a Texas District Attorney wants to know if people can be held liable for how the form is used.
Is the F-5 Form an “official government document” such that an internet al and knowing false entry therein would subject an individual to criminal prosecution for tampering with a governmental record?Wrote by District Attorney Brian Middleton in RQ-0464-KP
What is the TCOLE Termination Report Requirement on the F-5?
District Attorney Middleton briefs the Texas Attorney General about the F-5 and makes the following statement:
Pursuant to Section 1702.451 of the Texas Occupations Code, the head of a Texas law enforcement agency is required to send an employment termination report to TCOLE whenever a Texas peace officer separates from his employment with that agency. Section 1701.452(b) indicates that the head of the law enforcement agency or his designee shall include a statement explaining the type of discharge issued within the report. Use of the word “shall” imposes a duty. Tex. Gov’t Code Ann 311.016(2). This report is required to be on a form prescribed by TCOLE which is the F-5 Form. Thus, when a Texas peace officer separates from his employer, the employee must send the F-5 Form to TCOLE as a matter of law.District Attorney Middleton, Fort Bend County, Texas, RQ-0464-KP
The F-5 has three types of termination:
- Honorable Discharge
- General Discharge
- Dishonorable Discharge
- Was terminated, by a law enforcement agency or retired or resigned in lieu of termination by the agency in relation to allegations of criminal misconduct; or
- Was terminated, by a law enforcement agency or retired or resigned in lieu of termination by the agency for insubordination or untruthfulness.
The F-5 also has an attestation which requires signature by the Agency Administrator or Designee:
I, chief administrator or designee, attest that this is a true and accurate explanation of the circumstances under which this person resigned or was terminated.
What Has TCOLE’s Advice Been About the F-5?
The Executive Director of TCOLE issued a Technical Assistance Bulletin dated April 8, 2022.
TCOLE often receives questions from chief administrators regarding which category of discharge on an F-5 report is most appropriate and the consequences of selecting a category that does not most closely meet the circumstances surrounding the separation.
This Technical Assistance Bulletin reaffirms the relevant TCOLE continuing education instruction for chief administrators of the past decade.
There is a virtually unlimited number of fact patterns that a chief administrator may be expected to apply to the F-5 statutory discharge categories. As a result, TCOLE considers discharge designations to be a subjective rating by the chief administrator.
Thus, TCOLE will continue to defer to their discretion in determining the provable facts, applying the F-5 standards, and choosing an appropriate designation.
Kim Vickers, Executive Director, TCOLE
A licensee can appeal a discharge category to the State Office of Administrative Hearings with the final determination made by an Administrative Law Judge’s order and entered into TCOLE records.
What is the District Attorney’s Argument to the Contrary?
Law Prohibits False Entry on Government Document
The F-5 Form is by statue an “official government document.” Tex. Occ Code Ann 1701.452(g). Consequently, making a false entry on an F-5 Form is a criminal offense pursuance to Section 37.10 of the Texas Penal Code. [(a) A person commits an offense if he: (1) knowingly makes a false entry in, or false alteration of, a government record; (in pertinent part)]
Prosecution was Anticipated by Venue Statue
Further, Section 1701.458 of the Texas Occupational Code indicates that venue for the prosecution of an office under 37.10 of the Texas Penal Code (“Tampering with Government Record”) arising from a report required under Subchapter J, such as the F-5 Form, lies in the county where the offense occurred or in Travis County. By specifically describing venue for prosecution, it is clear that legislature anticipated viable prosecutions for tampering with the F-5 Form.
Terminations for Untruthfulness Require Dishonorable Discharge
Therefore, if an officer is terminated for [a violation listed under Dishonorable Discharge], the only lawful way to report the termination on the F-5 Form is to check the box as “Dishonorably Discharged.” If a Chief administrator checked any other category, the F-5 Form would be inaccurate and deceptive. Accordingly, a false statement of this nature on an F-5 Form would be subject to prosecution under the tampering statute for “making a false entry on a government document.”
Bulletin May Improperly Serve as a Mistake of Law Defense
The Bulletin states that the discharge designation on the F-5 Form is a “subjective rating by the chief administrator.” We find no legal support for this interpretation of the law and this pronouncement in the Bulletin may unjustly serve a the basis for a “mistake of law” defense. See Tex. Penal Code 8.03(b).
Allowing Subjective Opinion on F-5 Form would violate Legislative Intent
Moreover, proving the falsity of a subjective rating beyond a reasonable doubt would be nearly impossible. Under the interpretation of the law as set fourth in the Bulletin, the Chief Administrator could set forth any type of discharge he subjectively believes is appropriate, without any regard for the truth asserted, without regard for the specific definitions for each type of discharge, and without any ramifications for falsifying a governmental record. This contradicts the legislative intent of the statue, which clearly makes it an offense to make a false statement in a government record, including the F-5 Form.District Attorney Middleton, Fort Bend County, Texas, RQ-0464-KP
A Couple of Our Other Reads
You may find it interesting that TCOLE confirmed people were not properly licensed but still allows them to hold active licenses issued by them.
Or you may like to read what we sent the Texas Sunset Advisory Commission related to TCOLE. Interestingly enough, the Commission did not readily extend TCOLE in the 2021 Texas Legislative Session.
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Categories: The Lone Star Review - State