Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 11, 2008
The Honorable Tony Goolsby Opinion No. GA-0662
Chair, Committee on House Administration
Texas House of Representatives Re: Application of Local Government Code
Post Office Box 2910 section 143.014(c) to municipalities that have
Austin, Texas 78768-2910 adopted Local Government Code chapter 174,
the Fire and Police Employees Relations Act
(RQ-0678-GA)
Dear Representative Goolsby:
You inquire about the interaction of Local Government Code chapter 143, the Fire Fighter
and Police Officer Civil Service Act (the civil service act), with Local Government Code chapter
174, the Fire and Police Employees Relations Act (the FPERA).l See TEX. Loc. GOV'T CODE ANN.
ch. 143 (Vernon 2008) (providing for civil service for fire fighters and police officers), id ch. 174
(providing for collective bargaining for fire fighters and police officers).
You specifically raise section 143.014(c) of the Local Government Code, which is relevant
to a municipality that is subject to both the civil service act and the FPERA. See Request Letter,
supra note 1, at 1 (citing section 143.014 of the Government Code). Your questions relate to the
City ofFort Worth ("the City" or "Fort Worth"), which adopted the statutory predecessor ofthe civil
service act in 1947. 2 You inform us that Fort Worth adopted the FPERA for its fire department in
an election held in November 2007, but the city council has not yet placed the FPERA in effect
pursuant to section 174.052, which requires the governing body to place chapter 174 "in effect [in
the municipality] not later than the 30th day after the beginning ofthe first fiscal year ofthe political
subdivision after the election." TEX. Loc. GOV'TCODEANN. § 174.052 (Vernon 2008); see Request
Letter, supra note 1, at 2. 3 In connection with these facts, you ask two questions. Your first question
is as follows:
ILetter from Honorable Tony Goolsby, Chair, Committee on House Administration, Texas House of
Representatives, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Feb. 19,2008) (on file with the Opinion
Committee, also available at www.texasattorneygeneral.gov) [hereinafter Request Letter].
2See Brieffrom Gerald Pruitt, Fort Worth Deputy City Attorney, to Honorable Greg Abbott, Attorney General
of Texas, at 2 (Mar. 28, 2008) (on file with the Opinion Committee).
3Because your questions relate only to a fIfe department, we will refer only to fIfe department personnel in
answering them.
The Honorable Tony Goolsby - Page 2 (GA-0662)
[D]oes the last sentence of section 143.014(c) nullify Assistant Fire
Chief appointments made prior to the date of the adoption election
unless the appointment procedure is adopted by the municipality
through the collective bargaining process?
Request Letter, supra note 1, at 2. We note that section 143.014 does not mention nullifying
appointments made under it. Instead, it addresses the appointment power that a city may grant the
fire chief, and the impact the city's adoption of the FPERA has on this power.
Section 143.014 permits a civil service municipality to authorize the fire chief to appoint
persons to the classification immediately below his own classification instead of filling these
positions by examination. This section provides in part:
(b) If approved by the governing body ofthe municipality by
resolution or ordinance, the head of a fire or police department in the
municipality in which at least fOUf classifications4 exist below the
classification ofdepartment head may appoint each person occupying
an authorized position in the classification immediately below that of
department head, as prescribed by this section. The classification
immediately below that of department head may include a person
who has a different title but has the same pay grade.
(c) . . . In a fire department in a municipality having fewer
than 300 certified fire fighters, the department head may appoint not
more than one person to the classification immediately below that of
department head. If a municipality has 300 to 600 certified fire
fighters, the department head may appoint two persons to the
classification. If a municipality has more than 600 certified fire
fighters, the department head may appoint three persons to the
classification. This subsection does not apply to a municipality that
has·adopted The Fire and Police Employee Relations Act (Article
'5154c-l, Vernon's Texas Civil Statutes)5 unless the municipality
specifically adopts the appointment procedure prescribed by this
subsection through the collective bargaining process.
4The Fire Fighters' and Police Officers' Civil Service Commission provides for the classification of all fIre
fighters and police officers, and the municipal governing body "shall establish the classifications by ordinance." TEX.
Lac. GOV'T CODE ANN. § 143.021(a) (Vernon 2008).
5Article 5154c-l of the Revised Civil Statutes was repealed and recodified as chapter 174 of the Local
Government Code in 1993. See Act of May 12, 1993, 73d Leg., R.S., ch. 269, §§ 4-5, 1993 Tex. Gen. Laws 987,
1263-74.
The Honorable Tony Goolsby - Page 3 (GA-0662)
TEX. Loc. GOV'TCODE ANN. § 143.014(b)-(c) (Vernon 2008) (footnote and emphasis added).
Legislative history indicates that the purpose of section 143.014 is to allow a fire chief to create a
management team. 6
While the usual civil service requirements for employment and promotion do not apply to
persons appointed by the department head under these provisions,· appointees must fulfill the
requirements set out in section 143.014(e). See id § 143.014(e) (among other requirements,
appointees must meet requirements for appointment as head of a fire department). Pursuant to
section 143.014, the Fort Worth City Council has authorized the fire chief to appoint up to three
deputy fire chiefs. FORT WORTH, TEX. CODE § 13-24 (Municipal Code Corp. Supp. 69) (2008).
In construing statutes, the courts ascertain and give effect to the Legislature's intent as
expressed by the language of the statute. See City ofRockwall v. Hughes, 246 S.W.3d 621, 625
(Tex. 2008). We read the words and phrases of statutes in context and construe them according to
the rules ofgrammar and common usage. See TEX. GOV'T CODE ANN. § 311.011 (a) (Vernon 2005).
The courts use definitions prescribed by the Legislature and any technical or particular meaning the
words have acquired. See ide § 311.011(b); City ofRockwall, 246 S.W.3d at 625. Otherwise, a
statute's words are construed according to their plain and common meaning, unless a contrary
intention is apparent. See City ofRockwall, 246 S.W.3d at 625.
The last sentence of section 143.014(c) provides that "[t]his subsection does not apply to a
municipality that has adopted ... [the FPERA] unless the municipality specifically adopts the
appointment procedure· prescribed by this subsection through the collective bargaining process."
TEX. Loc. GOV'T CODE ANN. § 143.014(c) (Vernon 2008) (emphasis added). The Code
Construction Act provides that "a reference to a subtitle, subchapter, subsection, ... or other
numbered or lettered unit without further identification is a reference to a unit ofthe next larger unit
ofthe code in which the reference appears." TEX. GOV'T CODE ANN. § 311.006(2) (Vernon 2005);
see XVII OXFORD ENGLISH DICTIONARY 56 (2d ed. 1989) (defining "subsection" as "[a] division of
a section"). A subsection is a unit of a section, and "this subsection" refers to subsection (c) of
section 143.014.
Thus, subsection (c) does not apply to a municipality that has adopted the FPERA unless the
municipality specifically adopts the appointment procedure prescribed by subsection (c) through the
collective bargaining process. See TEX.,Loc. GOV'T CODE ANN. § 143.014(c) (Vernon 2008). In
summary, the City's adoption ofthe FPERA does not change the subsection (b) authorization for the
fire chief to appoint persons to the classification immediately below his own classification, but it
removes the numerical limits established by subsection (c), unless the City adopts this procedure
through the collective bargaining process.
6See Act relating to fIremen's and policemen's civil service, Hearings on Tex. C.S.HB. 1015 Before the House
Comm. on Urban Affairs, 68th Leg., R.S. (Apr. 28, 1983) (statement ofDavid Griffm, Texas Municipal League) (audio
tape available from House Video/Audio Servs.) (also on file with the Opinion Committee).
The Honorable Tony Goolsby- Page 4 (GA-0662)
A brief submitted to us argues that the last sentence in subsection 143.014(c) is "inherently
contradictory," in that it refers to "the appointment procedure prescribed by this subsection."7 It
states that subsection (b) of section 143.014 establishes "the appointment procedure," referred to in
subsection (c), and that the words "appointment procedure" are without effect, unless the word
"subsection" in section 143.014(c) is read as "section." See Deats Brief, supra note 7, at 5-6.
The briefrelies on Bridgestone/Firestone, Inc. v. Glyn-Jones for the rule "that courts are not
bound by the literal meaning of words in the construction of statutes, but when the intent and
purpose of the Legislature is manifest from a consideration of a statute as a whole, words will be
restricted or enlarged in order to give the statute the meaning which was intended by the lawmakers."
Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 134 (Tex. 1994); see State v. Terrell,
588 S.W.2d 784, 786 (Tex. 1979) (ifthe Legislature's intent is determined from examining the entire
statute, the courts must enforce that intent even though it is not consistent with the strict letter ofthe
statute). The Bridgestone/Firestone court addressed former article 6701d, section 107C(j),8 which
provided that the "[u]se or nonuse of a safety belt is not admissible evidence in a civil trial."
Bridgestone/Firestone, Inc., 878 S.W.2d at 133-34. Reading this provision in the context of the
entire statute, the court determined that the Legislature did not intend the seat belt statute to apply
in a suit against a seat belt manufacturer for a defective seat belt system. See Bridgestone/Firestone,
Inc., 878 S.W.2d at 133-34. But see St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505
(Tex. 1997) (discussing Bridgestone/Firestone; stating that courts must find the Legislature's intent
in the statute's language).
Wedo not agree that the phrase "the appointment procedure prescribed by this subsection"
is meaningless when it is read in context. Various subsections of section 143.014 describe aspects
of the appointment procedure. Subsection (b) provides for the fire chief s appointment of his
immediate subordinates, and subsection (c) places a limit on the number of persons the fire chief
may appoint. Subsection (e) sets out the qualifications of persons appointed by the head of the fire
department9 and subsection (f) requires the department head to make each appointment "under this
section" 90 days after a vacancy occurs in the position. TEX. Lac. GOV'T CODE ANN. § 143.014(f)
(Vernon 2008). Section 143.014 recognizes that the appointment pro,cedure is not confined to one
subsection, stating that a fire chief "may appoint each person occupying an authorized position in
7Brieffrom B. Craig Deats, General Counsel, Deats, Durst, Owen & Levy, P.L.L.C., on behalf of the Texas
State Association of Fire Fighters, to Honorable Greg Abbott, Attorney General of Texas, at 5 (Apr. 7, 2008) (on file
with the Opinion Committee) [hereinafter Deats Brief].
8See Act of May 16, 1985, 69th Leg., R.S., ch. 804, § 1, 1985 Tex. Gen. Laws 2846,2847 (amending article
6701d of the Revised Civil Statutes by adding section 107C); Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995
Tex. Gen. Laws 1025, 1643-44, 1871 (repealing article 6701d, and recodifying it as section 545.413(g) of the
Transportation Code); Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 8, 2003 Tex. Gen. Laws 847, 863 (repealing
section 545.413(g) of the Transportation Code).
9Subsection 143.014(d) sets out the qualifications of persons appointed by the head of the police department.
The' Honorable Tony Goolsby - Page 5 (GA-0662)
the classification immediately below that of department head, as prescribed by this section." Id.
§ 143.014(b) (emphasis added). The appointment procedure as a whole is found in section 143.014,
and various subsections of section 143.014 set out components of the appointment procedure.
Legislative history ofthe bill that adopted the predecessor1o of section 143.014 supports our
conclusion that the last sentence of subsection 143.014(c) removes only the limit on the number of
persons the fire chiefmay appoint. See HOUSE STUDY GROUP, BILL ANALYSIS, Tex. C.S.H.B. 1015,
68th Leg., R.S. (1983). The bill analysis states that
[c]ities with a minimum of four classifications below the police or
fire chief could allow a chief to appoint immediate subordinates. . . .
Fire chiefs in cities not under the Fire and Police Employee Relations
Act and with fewer than 300 firefighters could appoint only one
person ....
Id. at 1-2 (emphasis added). The emphasized language shows that adoption of the FPERA would
change the number of persons the fire chief could appoint,. not that it would take away the City's
authority to allow a fire chief to appoint a management team.
Our construction ofsubsection 143.014(c) is consistent with other legislation on this subject,
in particular with section 143.311, a provision of chapter 143, subchapter I. See TEX. Loc. GOV'T
CODE ANN. §§ 143.301-.313 (Vernon 2008). Chapter 143, subchapter I, which applies to certain
municipalities with a population of 460,000 or more that have not adopted the FPERA, authorizes
these ,municipalities to negotiate agreements with police officer and fire fighter associations. See ide
§§ 143.301-.304. Section 143.311 states that "[s]ection 143.014(c) does not apply to a municipality
to which this subchapter applies." Id § 143.311. As the bill analysis stated, the bill would "allow
police and firefighter department heads· to make more than two assistant appointments." HOUSE
RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. S.B. 863, 74thLeg.,R.S. (1995). Section 143.311
implements the same legislative policy found in the last sentence of subsection 143.014(c).
In answer to your first question, we advise you that a city's adoption ofthe FPERA removes
the limits on the number of persons the city may authorize a fire chief to appoint "unless the
municipality specifically adopts the appointment procedure prescribed by this subsection through
the collective bargaining process." TEX. Loc. GOV'T CODE ANN. § 143.014(c) (Vernon 2008). A
city's adoption ofthe FPERA does not change the fire chief s authority to make such appointments.
Thus, we need not consider whether the adoption ofthe FPERA might "nullify Assistant Fire Chief
appointments made prior to the date of the adoption" Request Letter, supra note l,at 2.
, Your second question is as follows:
lOThe predecessor of Local Government Code section 143.014 was adopted by House Bill 1015 of the 68th
regular legislative session. See Act ofMay 30, 1983, 68th Leg., R.S., ch. 420, § 3, 1983 Tex. Gen. Laws 2246, 2249-53.
The Honorable Tony Goolsby - Page 6 (GA-0662)
[at] what point does Fort Worth's ability to continue appointing
Assistant Fire Chiefs under [section] 143.014 cease (absent adoption
of a collectively bargained procedure)?
Id. This question is based on a premise contrary to our answer to your first question, in that it
assumes that Fort Worth's adoption of the FPERA would remove a fire chiefs subsection
143.014(b) authority to appoint assistants. But you rephrase this question more generally as follows:
"Is the FPERA considered 'adopted' at the time the successful adoption election is certified by the
City Council, or on the later date when the City Council places the FPERA in effect." Id. Your
rephrased question refers to the statement in subsection 143.014(c) that"[t]his subsection does not
apply to a municipality that has adopted the Fire and Police Employee Relations Act." TEx. Loc.
GOV'T CODE ANN. § 143.014(c) (Vernon 2008) (emphasis added). Thus, we address the meaning
of "adopted" in section 143.014(c).
Your question about the meaning of "adopted" does not require us to decide when the
FPERA becomes ~ffective in Fort Worth for all purposes. II We are· construing language in Local
Government Code chapter 143, the civil service act, and we examine Local Government Code
chapter 174, the FPERA, only for the provision triggering the inapplicability of subsection
143.014(c), that is, the FPERA provision stating when the FPERA is "adopted." You mention the
FPERA provisions on the adoption election and on the city council's placing the FPERA in effect.
Request Letter, supra note 1, at 2. These are respectively sections 174.051 and 174.052. Section
174.,051 provides in part:
(a) The governing body of a political subdivision to which
this chapter applies shall order an election for the adoption of this
chapter on receiving a petition signed by qualified voters of the
political subdivision [in certain numbers]
(b) [election date].
(c) The ballot in the election shall be printed to provide for
voting for or against the proposition: "Adoption of the state law
applicable to (fire fighters, police officers, or both, as applicable) that
establishes collective bargaining if a majority of the affected
employees favor representation by an employees association,
preserves the prohibition against strikes and lockouts, and provides
penalties for strikes and lockouts."
TEX. Loc. GOV'T CODE ANN. § 174.051 (Vernon 2008) (emphasis added).
11Thus, we do not address City 0/Kingsville v. International Ass'n o/Firefighters, Local Union No. 2390, 568
S.W.2d 397, 400 (Tex. Civ. App.-Corpus Christi 1978, no writ), which considered whether the FPERA collective
bargaining provisions had been in effect for at least one year.
The Honorable Tony Goolsby - Page 7 (GA-0662)
Section 174.052 provides as follows~
If a majority of the votes cast in an election under Section 174.051
favor adoption of this chapter, the governing body shall place this
chapter in effect not later than the 30th day after the beginning ofthe
first fiscal year of the political subdivision after the election.
Id. § 174.052 (emphasis added). You state that Fort Worth's first fiscal year after the November
2007 election begins October 1, 2008, that the Fort Worth City Council has not yet placed chapter
174 in effect, and that it is not required to do so before October 30, 2008. See Request Letter, supra
note 1, at 2.
We construe sections 174.051 and 174.052 by reading their words and phrases in context and
according to the rules of grammar and common usage. See TEX. GOV'T CODE ANN. § 311.011(a)
(Vernon2005). Both provisions refer to the adoption ofthe FPERA by an election. Section 174.052
establishes the time when the governing body "shall place this chapter [174] in effect." See TEX.
Loc. GOV'T CODE ANN. § 174.052 (Vernon 2008); see id § 174.051. Subsection 143.014(c) refers
to "a municipality that has adopted the Fire and Police Employee Relations Act," not to one that has
placed the FPERA in effect. Id § 143.014(c). The numerical limits established by subsection
143.014(c) become inapplicable in the municipality when the FPERA is adopted by election. 12
12The limits in subsection 143.014(c) may be reimposed if the municipality specifically adopts them through
the collective bargaining process. See TEX. Lac. GOV'T CODE ANN. § 143.014(c) (Vernon 2008).
The Honorable Tony Goolsby - Page 8 (GA-0662)
SUMMARY
Section 143.014 of the Local Government Code, a provision
ofthe Fire Fighter and Police Officer Civil Service Act, authorizes a
municipal governing body to allow a fire chief to appoint a limited
number of persons to the classification immediately below him
without following the usual civilservice appointment process. When
a municipality that is subject to the civil service act adopts Local
Government Code chapter 174, the Fire and Police Employees
Relations Act, subsection 143.014(c), limiting the number ofdeputies
who may be appointed, becomes inapplicable to the municipality.
These limits may be reimposed ifthe municipality specifically adopts
them through the collective bargaining process.
For purposes of subsection 143.014(c), the Fire and PQlice
Employees Relations Act is adopted by an election held pursuant to
section 174.051 of the Local Government Code. The limits in
subsection 143.014(c) on the number of deputies who may be
appointed become inapplicable in the municipality at this time.
Very truly yours,
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee