Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEYGENERALOF TEXAS
GREG ABBOTT
September 2,2004
The Honorable Bruce Isaacks Opinion No. GA-0246
Denton County Criminal District Attorney
Post Office Box 2344 Re: Whether a civil service commissioner of a
Denton, Texas 76202 municipality governed by chapter 143, Local
Government Code, may be appointed to two or
more consecutive terms, and if not, whether the
reappointment of a commissioner constitutes a
criminal offense (RQ-0201-GA)
Dear Mr. Isaacks:
You ask whether a civil service commissioner of a municipality governed by chapter 143 of
the Local Government Code may be appointed to two or more consecutive terms, and ifnot, whether
the reappointment of a commissioner constitutes a criminal offense.’
Chapter 143 of the Local Government Code relates to “municipal civil service.” TEX. Lot.
GOV’TCODE ANN. 95 143.001-.354 (Vernon 1999 & Supp. 2004). Its purpose is “to secure efficient
fire and police departments composed of capable personnel who are free from political influence and
who have permanent employment tenure as public servants.” Id. $ 143.001(a) (Vernon 1999).
Chapter 143 is applicable to any municipality that either (1) has a population of 10,000 or more, a
paid fire department and police department, and has voted to adopt [chapter 1431 or the law codified
by [chapter 1431; or (2) whose election to adopt [chapter 1431 and whose acts subsequent to that
election were validated by the law enacted by the Seventy-third Legislature in 1993. See id. 5
143.002. After a municipality adopts chapter 143, a “Fire Fighters’ and Police Officers’ Civil
Service Commission is established in the municipality.” Id. 5 143.006(a).
A civil service commission consists of “three members appointed by the municipality’s chief
executive and confirmed by the governing body ofthe municipality.” Id. § 143.006(b). “Members
serve staggered three-year terms with the term of one member expiring each year.” Id. A person
appointed to the commission must, inter al& “not have held a public office within the preceding
three years.” Id. 5 143.006(c)(5). You ask whether that provision means that an individual may not
be reappointed to a second consecutive three-year term. See Request Letter, supra note 1, at 1.
‘See Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable Greg
Abbott,
Texas Attorney General, at 1 (Mar. 2, 2004) ( on file with Opinion Committee, ako available at
www.oag.state.tx.us)[hereinafta Request Letter].
The Honorable Bruce Isaacks - Page 2 (GA-0246)
Section 143.006(c) clearly requires that aperson appointed to the commissionmay‘not have
held a public office” during the past three years. TEX. Lot. GOV’T CODE ANN. 5 143.006(c)(5)
(Vernon 1999). The relevant language does not state that its application is limited to nnotherpublic
office. Rather, it applies to any “public office.” See id. A statute that is plain and unambiguous on
its face will generally be construed as written. See Fitzgerald v. Advanced Spine Fixation Sys., Inc.,
996 S.W.2d 864,865-66 (Tex. 1999) (where a statute is clear, courts will not look to extrinsic aids
such as legislative history to determine the legislature’s intent); see also Bruzos River Auth. v. City
of Graham, 354 S.W.2d 99, 109 (Tex. 1961). Thus, if a civil service commissioner holds a public
office, he or she is not eligible for reappointment to a second consecutive term.
The test for determining whether a person holds a public office was formulated by the Texas
Supreme Court in 1955. In Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex.
1955), the court said that
the determining factor which distinguishes a public officer from an
employee is whether any sovereign function of the government is
conferred upon the individual to be exercised by him for the benefit
of the public largely independent of the control of others.
Aldine, 280 S.W.2d at 583 (emphasis added) (citation omitted). In our view, it is clear that members
of a civil service commission hold an “office” under the Aldine standard. They are appointed to
fixed three-year terms. See TEX. Lot. GOV’T CODEANN. 5 143.006(b) (Vernon 1999). Members
do not serve at the pleasure of the chief executive or governing body. Under chapter 143, they may
be removed in only two ways: (1) if “the governing body of the municipality finds that a
commission member is guilty of misconduct in office”; or (2) if “a commission member is indicted
or charged by information with a criminal offense involving moral turpitude,” and either pleads
guilty to or is convicted of the offense. Id. 5 143.007(a)-(b).
As a body, the commission is empowered to enact rules. See id. 5 143.008(a). ‘The
commission or a commission member. may investigate and report on all matters relating to the
enforcement and effect of [chapter 1431 and any rules adopted [thereunder] . . .” Id. 3 143.009(a).
The commission may administer oaths, issue subpoenas, and depose witnesses. See id. $5
143.009(b), .010(d). The commission is required to conduct a hearing whenever a “fire fighter or
police officer wants to appeal to the commission from an action for which an appeal or review is
provided by” chapter 143. Id. 5 143.010(a). The commission must “conduct the hearing fairly and
impartially . and shall render a just and fair decision.” Id. $ 143.010(g). “Each concurring
commission member” is directed to “sign a decision issued by the commission.” Id. 5 143.01 l(a).
In sum, we believe it is clear that a municipal civil service commissioner holds a public
office. A commission member serves for a fixed term, adjudicates rights and is subject to removal
only for cause. Accordingly, it may fairly be said that a commissioner exercises his or her duties
“largely independently of the control of others.” Aldine, 280 S.W.2d at 583. As a result, a civil
service commissioner holds a public office and may not be reappointed to a second consecutive term
as civil service commissioner.
The Honorable Bruce Isaacks - Page 3 (GA-0246)
You also ask whether the reappointment of a commissioner constitutes a criminal offense.
See Request Letter, supra note 1, at 1. Section 143.006(h) of the Local Government Code provides:
The chief executive of a municipality or a municipal official commits
an offense if the person knowingly or intentionally refuses to
implement this chapter or attempts to obstruct the enforcement ofthis
chapter. An offense under this subsection is a misdemeanor
punishable by a tine of not less than $100 or more than $200.
TEX. UC. GOV’T CODEANN. 5 143.006(h) (Vernon 1999). It is not clear whether the reappointment
of a civil service commissioner to a second consecutive term would constitute a “refus[al] to
implement” chapter 143 or an attempt to “obstruct the enforcement” of that chapter. Id. tj
143.006(h). In addition, section 143.006(h) states that an offense occurs only if the person acts
“knowingly or intentionally.” Id. The existence of some confusion on the issue under consideration,
as evidenced by your request to us, indicates that even if a reappointment could be characterized as
a refusal to implement or an attempt to obstruct, it might be difficult to demonstrate the existence
of intent. In any event, whether to proceed in such a case is a matter squarely within prosecutorial
discretion.
The Honorable Bruce Isaacks - Page 4 (GA-0246)
SUMMARY
A person appointed to the civil service commission of a
municipality may not be reappointed to a second consecutive term.
Whether such areappointment constitutes acriminal offense depends
upon a variety of factors, including whether the appointee acted
knowingly or intentionally to violate the law, and thus cannot be
determined here.
Yours very truly,
G ABBOTT
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee