Can a Texas municipal fire and police civil service commissioner be reappointed to a second consecutive term?

TX AG Opinion GA-0246: No Consecutive CSC Terms

Plain-English summary

The Denton County Criminal District Attorney asked whether a member of a municipal fire fighters' and police officers' civil service commission, created under Local Government Code chapter 143, could be appointed to a second consecutive three-year term, and if not, whether reappointing one would be a crime. Chapter 143 requires that anyone appointed to the three-member commission "not have held a public office within the preceding three years."

The opinion concluded that a civil service commissioner does hold a "public office" under the test the Texas Supreme Court set out in Aldine Independent School District v. Standley: someone who exercises a sovereign government function for the public's benefit, largely independent of others' control. The opinion found commissioners fit that test because they serve fixed three-year terms, cannot be removed at will (only for proven misconduct or certain criminal charges), sit as a body that adopts rules, and hold hearings to decide fire fighters' and police officers' appeals under chapter 143. Because a sitting commissioner therefore already "holds a public office," the statute's three-year lookback bars reappointing that same person to a second consecutive term. On the criminal question, the opinion found the statute's misdemeanor provision, which punishes a municipal official who knowingly or intentionally refuses to implement or obstructs chapter 143, too fact-dependent to resolve in the abstract, and noted that whether to prosecute a particular reappointment would be a matter of prosecutorial discretion in any event.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2004)

Municipalities operating under chapter 143 civil service: The opinion meant a city's chief executive could not lawfully reappoint a sitting or recently-served civil service commissioner to an immediately following term, because the commissioner's own seat counted as the kind of "public office" the three-year lookback in section 143.006(c)(5) was meant to screen out.

Sitting civil service commissioners: The opinion meant a commissioner's term could not be extended by simple reappointment at the end of three years; the person would have to sit out before becoming eligible again, based on the statute's public-office lookback.

Prosecutors and municipal officials evaluating an improper reappointment: The opinion left open, as a fact question outside the scope of an AG opinion, whether a particular reappointment would amount to the knowing or intentional refusal to implement, or attempt to obstruct, chapter 143 that the statute's misdemeanor provision punishes.

Common questions

Why couldn't a city just reappoint a civil service commissioner it was happy with for another term?
Because the opinion concluded the commissioner's own seat is a "public office" under the Aldine test, and chapter 143 bars appointing anyone to the commission who has held a public office within the preceding three years, which includes the outgoing commissioner's own seat.

What made a civil service commissioner a "public officer" rather than just an employee?
The opinion applied the Texas Supreme Court's Aldine test: commissioners serve fixed three-year terms, cannot be removed except for proven misconduct or certain criminal charges, act as a body that can adopt rules, administer oaths, issue subpoenas, and decide fire fighters' and police officers' appeals through hearings, all of which the opinion found showed they exercise government authority largely independent of others' control.

Was reappointing a commissioner to a second term automatically a crime?
No. The opinion found the misdemeanor provision too fact-dependent to answer in the abstract, since it only punishes a knowing or intentional refusal to implement, or attempt to obstruct, chapter 143, and whether any particular reappointment met that standard, and whether to prosecute it, were matters the opinion left to the facts and to prosecutorial discretion.

Background and statutory framework

Local Government Code chapter 143 governs municipal civil service for fire and police departments in qualifying municipalities, with the stated purpose of securing efficient departments staffed by capable personnel free from political influence and with permanent employment tenure. Once a municipality adopts chapter 143, it must establish a Fire Fighters' and Police Officers' Civil Service Commission of three members, appointed by the municipality's chief executive and confirmed by its governing body, serving staggered three-year terms. Among the statutory eligibility requirements, section 143.006(c)(5) requires that an appointee "not have held a public office within the preceding three years."

The opinion read that requirement literally: it does not limit itself to some other public office, so it applies to any public office, including the commission seat itself. To determine whether a commissioner holds a public office, the opinion applied the Texas Supreme Court's 1955 formulation in Aldine Independent School District v. Standley, which asks whether a sovereign government function is conferred on the individual to be exercised for the public's benefit, largely independent of others' control. The opinion found several features of the commissioner role satisfied that test: fixed three-year terms rather than service at the chief executive's pleasure, removal only for proven misconduct in office or for being indicted or charged with a crime involving moral turpitude and pleading guilty or being convicted, rulemaking authority as a body, and the power to administer oaths, issue subpoenas, depose witnesses, and conduct hearings to decide fire fighters' and police officers' appeals under chapter 143, with a duty to render fair and impartial decisions. Because a civil service commissioner therefore holds a public office, the opinion concluded such a person cannot be reappointed to a second consecutive term.

On the second question, section 143.006(h) makes it a misdemeanor, punishable by a fine of $100 to $200, for a municipality's chief executive or a municipal official to knowingly or intentionally refuse to implement chapter 143 or attempt to obstruct its enforcement. The opinion found it unclear whether reappointing a commissioner to a second consecutive term would itself qualify as such a refusal or obstruction attempt, and noted that the statute's knowing-or-intentional mental state requirement, combined with the genuine legal uncertainty that prompted the request in the first place, would make intent difficult to establish in many cases. The opinion left the ultimate charging decision to prosecutorial discretion rather than resolving it in the abstract.

Citations

Statutes:

• TEX. LOC. GOV'T CODE ANN. §§ 143.001-.354 (Vernon 1999 & Supp. 2004)
• TEX. LOC. GOV'T CODE ANN. § 143.001(a) (Vernon 1999)
• TEX. LOC. GOV'T CODE ANN. § 143.002
• TEX. LOC. GOV'T CODE ANN. § 143.006(a)
• TEX. LOC. GOV'T CODE ANN. § 143.006(b) (Vernon 1999)
• TEX. LOC. GOV'T CODE ANN. § 143.006(c)(5) (Vernon 1999)
• TEX. LOC. GOV'T CODE ANN. § 143.007(a)-(b)
• TEX. LOC. GOV'T CODE ANN. § 143.008(a)
• TEX. LOC. GOV'T CODE ANN. § 143.009(a)
• TEX. LOC. GOV'T CODE ANN. §§ 143.009(b), .010(d)
• TEX. LOC. GOV'T CODE ANN. § 143.010(a)
• TEX. LOC. GOV'T CODE ANN. § 143.010(g)
• TEX. LOC. GOV'T CODE ANN. § 143.011(a)
• TEX. LOC. GOV'T CODE ANN. § 143.006(h) (Vernon 1999)

Cases:

• Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999)
• Brazos River Auth. v. City of Graham, 354 S.W.2d 99 (Tex. 1961)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0246
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0246.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 2, 2004

The Honorable Bruce Isaacks
Denton County Criminal District Attorney
Post Office Box 2344
Denton, Texas 76202

Opinion No. GA-0246

Re: Whether a civil service commissioner of a 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 if not, whether the reappointment of a commissioner constitutes a criminal offense.[1]

Chapter 143 of the Local Government Code relates to "municipal civil service." TEX. LOC. GOV'T CODE ANN. §§ 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 143] or the law codified by [chapter 143]; or (2) whose election to adopt [chapter 143] and whose acts subsequent to that election were validated by the law enacted by the Seventy-third Legislature in 1993. See id. § 143.002. After a municipality adopts chapter 143, a "Fire Fighters' and Police Officers' Civil Service Commission is established in the municipality." Id. § 143.006(a).

A civil service commission consists of "three members appointed by the municipality's chief executive and confirmed by the governing body of the 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 alia, "not have held a public office within the preceding three years." Id. § 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.

Section 143.006(c) clearly requires that a person appointed to the commission may "not have held a public office" during the past three years. TEX. LOC. GOV'T CODE ANN. § 143.006(c)(5) (Vernon 1999). The relevant language does not state that its application is limited to another public 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 Brazos 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. LOC. GOV'T CODE ANN. § 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. § 143.007(a)-(b).

As a body, the commission is empowered to enact rules. See id. § 143.008(a). "The commission or a commission member . . . may investigate and report on all matters relating to the enforcement and effect of [chapter 143] and any rules adopted [thereunder] . . ." Id. § 143.009(a). The commission may administer oaths, issue subpoenas, and depose witnesses. See id. §§ 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. § 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. § 143.011(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.

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 of this chapter. An offense under this subsection is a misdemeanor punishable by a fine of not less than $100 or more than $200.

TEX. LOC. GOV'T CODE ANN. § 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. § 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.

SUMMARY

A person appointed to the civil service commission of a municipality may not be reappointed to a second consecutive term. Whether such a reappointment constitutes a criminal 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,

GREG 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

Footnotes

[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, also available at www.oag.state.tx.us) [hereinafter Request Letter].