Can a Texas civil service commission charge firefighters a fee to take a promotional exam?

Plain-English summary

A state senator asked the Attorney General a narrow question: when firefighters sit for a promotional civil service examination, can the local civil service commission make them pay a fee to take the test?

The starting point is Chapter 143 of the Local Government Code, the civil service statute for fire and police departments. For entrance examinations, Chapter 143 is explicit that they must be open, competitive, and free. For promotional examinations, the statute says nothing about fees one way or the other. The Attorney General concluded that this silence does not leave room for a commission to charge a fee. A local civil service commission is not a home-rule city with broad inherent powers; it has only the powers a statute expressly gives it, plus those necessarily implied. Texas courts will not imply authority to charge a fee, so a public entity other than a home-rule city may charge a fee only when a statute specifically authorizes it.

Because no statute authorizes a fee for a fire department promotional examination, the Attorney General concluded the commission may not impose one.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Local civil service commissions (as the opinion held for them): The opinion told them they may not charge a fee for a fire department promotional examination, because no statute grants that authority and a commission cannot imply it.

Firefighters seeking promotion (what the opinion meant for them): Under the opinion, applicants could not be required to pay a fee to sit for a promotional examination at the time of the opinion.

On where the power would have to come from (what the opinion clarified): The opinion explained that a public entity other than a home-rule city may charge a fee only when a statute specifically authorizes it, so any such fee would require express statutory authorization rather than implication.

Common questions

Can a Texas civil service commission charge a fee for a fire department promotional exam?
The opinion concluded it cannot, because no statute expressly authorizes such a fee.

Doesn't Chapter 143 only say entrance exams must be free?
Yes, and the opinion acknowledged the statute does not call promotional exams "free." But it concluded the lack of any fee authority still bars the charge, because the commission cannot imply the power to impose a fee.

Why can't the commission just decide to charge a fee on its own?
The opinion explained a local civil service commission lacks the expansive authority of a home-rule city and has only the powers expressly granted by statute or necessarily implied, and courts will not imply fee authority.

Background and statutory framework

A civil service commission must provide for open, competitive, and free entrance examinations to create eligibility lists for beginning positions in the fire and police departments. Tex. Loc. Gov't Code Ann. § 143.025(a) (West 2008). Promotional examinations are open to each firefighter who has continuously held, for at least two years, a position in the classification immediately below the one for which the examination is held. Id. § 143.030(b). Chapter 143 does not state that a promotional examination must be free.

Even so, the absence of statutory authority to impose a fee bars a commission from charging one. A local civil service commission is not vested with the expansive authority of a home-rule city; it has only the powers expressly granted by statute together with those necessarily implied from the authority conferred or duties imposed. Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961). A court will generally not imply authority to impose a fee, so a public entity other than a home-rule city may not charge a fee unless that fee is specifically authorized by law. Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946). Because a civil service commission lacks express statutory authority to impose a fee for a fire department promotional examination, the Attorney General concluded it may not impose such a fee.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 143.025(a) (West 2008)
• Tex. Loc. Gov't Code Ann. § 143.030(b)

Cases:

• Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961)
• Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946)

AG opinions referenced:

• Tex. Att'y Gen. Op. No. GA-0586 (2007)
• Tex. Att'y Gen. Op. No. GA-0735 (2009)
• Tex. Att'y Gen. Op. No. GA-0544 (2007)
• Tex. Att'y Gen. Op. No. DM-22 (1991)
• Tex. Att'y Gen. Op. No. JM-345 (1985)
• Tex. Att'y Gen. Op. No. H-647 (1975)
• Tex. Att'y Gen. Op. No. WW-1482 (1962)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0842
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0842.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

February 7, 2011

The Honorable Royce West Opinion No. GA-0842
Chair, Committee on Intergovernmental
Relations Re: Whether a local civil service commission may
Texas State Senate impose a fee for an applicant to take a fire
Post Office Box 12068 department promotional civil service examination
Austin, Texas 78711-2068 (RQ-0912-GA)

Dear Senator West:

You ask whether a local civil service commission may impose a fee for an applicant to take a fire department promotional civil service examination.[1]

A civil service commission must "provide for open, competitive, and free entrance examinations to provide eligibility lists for beginning positions in the fire and police departments." TEX. LOC. GOV'T CODE ANN. § 143.025(a) (West 2008) (emphasis added). Promotional examinations are "open to each fire fighter who at any time has continuously held for at least two years a position in the classification that is immediately below, in salary, the classification for which the examination is to be held." Id. § 143.030(b). You ask whether a civil service commission may charge a fee for a fire department promotional examination. Request Letter at 2.

Unlike the case with entrance examinations, chapter 143 does not specify that a promotional examination shall be "free." Nevertheless, the absence of any statutory authority to impose a fee in this case precludes a commission from doing so because a local civil service commission "is not vested with the expansive authority of a home-rule city." Tex. Att'y Gen. Op. No. GA-0586 (2007) at 2. Therefore, a commission "has only such powers as are expressly granted to it by statute together with those necessarily implied from the authority conferred or duties imposed." Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961).

A court "will generally not imply authority to impose a fee, and as such, a public entity other than a home-rule city may not charge a fee unless that fee is specifically authorized by law." Tex. Att'y Gen. Op. No. GA-0735 (2009) at 2; see Tex. Att'y Gen. Op. Nos. GA-0544 (2007) at 4 (a court strictly construes a statute imposing a fee and will not imply authority to impose a fee) (citing Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946), DM-22 (1991) at 1 (public entity other than home-rule city may charge fee only when specifically authorized by law, and not by implication)); accord Tex. Att'y Gen. Op. Nos. JM-345 (1985) at 3, H-647 (1975) at 2, WW-1482 (1962) at 3.

Because a civil service commission lacks express statutory authority to impose a fee for an applicant to take a fire department civil service promotional examination, we conclude that a commission may not impose such a fee.

SUMMARY

Because a civil service commission lacks express statutory authority to impose a fee for an applicant to take a fire department civil service promotional examination, a civil service commission may not impose such a fee.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Request Letter (available at http://www.texasattorneygeneral.gov).