Untitled Texas Attorney General Opinion ( 2011 )

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ATTORNEY GENERAL oF TEXAS
G R E G A B B O T T
November 22, 2011
The Honorable Charlie Geren Opinion No. GA-0893
Chair, Committee on House Administration
Texas House of Representatives Re: Whether a city that has adopted civil service
Post Office Box 2910 rules for its police officers under chapter 143 of the
Austin, Texas 78768-2910 Local Government Code may authorize a reserve
police force (RQ-0972-GA)
Dear Representative Geren:
You inform us that Fort Worth has adopted Local Government Code chapter 143.1 This law
requires, with a few exceptions, that people who apply to be police officers take a civil service
examination. TEX. LOC. GOV’T CODE ANN. § 143.021(c) (West 2008). You also explain that Fort
Worth has a reserve police force, and that its members do not take a civil service examination.
Request Letter at 1. You ask two questions about reserve officers, the first being whether a city that
has adopted chapter 143 may create and maintain a reserve police force comprised of reserve police
officers who do not take a civil service examination. Id.
We begin our answer by noting that the chapter 143 examination requirement applies to
“police officers.” TEX. LOC. GOV’T CODE ANN. § 143.021(a), (c) (West 2008). In chapter 143, the
term “‘[p]olice officer’ means a member of a police department or other peace officer who was
appointed in substantial compliance with this chapter or who is entitled to civil service status under
Section 143.005, 143.084, or 143.103.” Id. § 143.003(5). Presumably, your question is premised
on the possibility that a “police officer” under chapter 143 might be any “member of a police
department” rather than only a member “who is appointed in substantial compliance with this chapter
or who is entitled to civil service status.” Id. See also Request Letter at 2 (stating that reserves
might be “prohibited in civil service cities because they . . . serve in the police department”).
However, for purposes of chapter 143, the term “police officer” refers to police department members
or other peace officers who are appointed under chapter 143 or entitled to civil service status rather
than all members of police departments or all peace officers. See Fitzgerald v. Advanced Spine
Fixation Sys., Inc., 996 S .W.2d 864, 865 (Tex. 1999) (holding that courts construe statutes according
to the plain meaning of their words). See also Lee v. Cin of Houston, 807 S.W.2d 29(), 291 (Tex.
lLetter from Honorable Charlie Geren, Chair, Committee on House Administration, to Honorable Greg Abbott,
Attorney General of Texas at 1 (May 18, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml (“Request Letter”).
The Honorable Charlie Geren - Page 2 (GA-0893)
1991) (interpreting section 143.003(5) to mean “simply that a ‘police officer’ is one who was
appointed in substantial compliance with chapter 143 of the code”). Accordingly, we will examine
whether reserves are appointed under chapter 143 or entitled to civil service status.
A member of a reserve police force is appointed under chapter 341, not chapter 143.
Compare TEX. LOC. GOV’T CODE ANN. § 341.012(d) (West 2005) (providing that the “chief of
police shall appoint the members of the reserve force[]”), with id. § 143.026(a)-(b) (West 2008)
(providing that police force vacancies be filled as follows: the head of a police department requests
a list of candidates from a civil service commission; the director of the commission identifies the top
three candidates; and the municipality’s chief executive appoints one of the three). Reserve police
officers are not entitled to civil service status under chapter 143. Compare id. §§ 143.041-.047,
.073-.075, .081-.084, .1 10, .1 12-. 1 16 (West 2008) (providing that police officers with civil service
status can be entitled to full compensation and pension benefits), with id. § 341.012 (West 2005)
(prohibiting a reserve police officer from receiving a financial benefit of full-time employment or
from participating in a pension fund created by statute for the benefit of full-time paid peace
officers). Thus, reserve police officers under chapter 341 are not “police officers” for purposes of
chapter 143. Note, however, that although a reserve police officer is not a “police officer” for
purposes of chapter 143, chapter 341 requires a reserve officer who assumes the duties of a regular
officer to comply with the requirements for a regular officer. Id. § 341.012(h) (West 2005).
You suggest that one Texas Supreme Court case, Lee v. City of Houston, might prohibit cities
that have adopted civil service requirements for police officers from maintaining a reserve police
force. Request Letter at 2. The Lee court held that, if “a particular position requires substantial
knowledge of ‘police work and work in the police department,’ then it must be classified” pursuant
to civil service requirements Lee, 807 S.W.2d at 294 (citing section 143.025(b) of the Local
Government Code). Based on Lee, you suggest that reserve officers might be “prohibited in civil
service cities because they are not classified under civil service law and they serve in the police
department.” Request Letter at 2. However, as you note, the Lee court did not hold that a reserve
police officer must have substantial knowledge of work in the police department and comply with
the chapter 143 civil service requirements See Lee, 807 S .W.2d at 295. The Lee decision examined
questions about Houston Police Department supervisors, not reserve police officers, and held that
the supervisors must comply with chapter 143. Id. Further, we have not found, nor has any briefing
submitted to this office purported to find, any Texas case that has stated or implied that reserves
must comply with civil service requirements. On the contrary, Texas courts have opined on matters
involving the reserve police forces of cities, like Fort Worth, that have also adopted chapter 143, and
none of those cases have suggested that adoption of chapter 143 is incompatible with creating or
maintaining a reserve force under chapter 341. See, e.g., Houston v. State, 428 S.W.2d 353 (Tex.
Crim. App. 1968).
Indeed, the statute authorizing reserve police forces presumes the coexistence of reserve and
“regular police.” TEX. LOC. GOV’T CODE ANN. § 341.012(h) (West 2005). Chapter 341
acknowledges that reserves are “additional” and “supplementary” to “regular police officers.” Id.
§ 341.012(e), (h). The statute recognizes that, although police officers are always peace officers,
The Honorable Charlie Geren - Page 3 (GA*0893)
reserve officers sometimes are not. Id. § 341.012(f)-(h). Chapter 341 also provides, as we noted
above, that reserves “may not assume the full-time duties of regular police officers without
complying with the requirements for regular police officers.” Id. § 341.012(h). This prohibition
suggests that reserve police officers’ duties are usually different from those of regular officers. lt
also suggests that, if reserve officers’ duties become the same as those as regular officers, then the
reserve officers would have the duties that the Lee court described, and would therefore have to
satisfy the requirements that regular “police officers” must satisfy under chapter 143. See Cin of
Rockwall v. Haghes, 246 S.W.3d 621, 625 (Tex. 2008) (noting that legislative intent is expressed
by statutory language). In this way, section 341.012 indicates that the Legislature distinguishes
between a reserve and regular police force such that a city may have both types of forces without
contravening chapter 143, section 341.012, or Lee. See also Hanter v. Fort Worth Capital Corp.,
620 S.W.2d 547, 551 (Tex. 1981) (holding that courts are never to presume that the Legislature has
done a useless act).2
2Because we answered your first question in the affirmative, we Will not answer your second question. See
Request Letter at 1, 3 (requesting that We answer your second question only if we answer your first in the negative).
The Honorable Charlie Geren - Page 4 (GA'0893)
MLR_¥
A city that has adopted chapter 143 of the Texas Local
Government Code may create and maintain a reserve police force.
Very truly yours,
/.
' Attorney§ni:ral of Texas
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JAS ON BOATRIGHT
Chair, Opinion Committee
Jason Boatright
Assistant Attorney General, Opinion Committee