Could a Texas city with chapter 143 civil-service rules maintain a reserve police force whose members did not take the civil-service exam?

Plain-English summary

The Texas Attorney General concluded in 2011 that a city operating its regular police department under Local Government Code chapter 143 could also create and maintain a reserve police force under chapter 341. Reserve officers appointed under chapter 341 were not “police officers” under chapter 143 merely because they served in the police department, so they did not have to take the chapter 143 civil-service examination on that basis.

The opinion distinguished reserve officers from regular officers. Chapter 341 described reserves as additional and supplementary and barred them from assuming regular officers' full-time duties without meeting the requirements for regular officers. If a reserve officer's duties became those of a regular officer, the civil-service requirements could then apply.

Currency note

This opinion was issued in 2011. 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.

Common questions

Q: Did chapter 143 prohibit a civil-service city from having reserve police? A: No. The AG concluded that chapters 143 and 341 allowed regular and reserve police forces to coexist.

Q: Did reserve officers have to take the chapter 143 civil-service exam? A: The opinion said no because they were appointed under chapter 341 and were not chapter 143 police officers solely by serving in the department.

Q: What if a reserve officer performed a regular officer's full-time duties? A: Chapter 341 required the reserve officer to comply with the requirements for regular officers before assuming those duties.

Q: Did Lee v. City of Houston require a different result? A: The AG said no. Lee concerned police-department supervisors and did not hold that reserve officers had to comply with chapter 143.

Background and statutory framework

Chapter 143 governed civil-service police appointments and examinations. Chapter 341 separately authorized a police chief to appoint a reserve force and limited the benefits and duties of reserve officers. The opinion read those provisions together and found no conflict between them.

Citations and references

Statutes:

• Tex. Local Gov't Code chapter 143
• Tex. Local Gov't Code § 341.012

Cases:

• Lee v. City of Houston, 807 S.W.2d 290 (Tex. 1991)
• City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008)
• Houston v. State, 428 S.W.2d 353 (Tex. Crim. App. 1968)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0893
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0893.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

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.' 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. Jd.

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.” Jd. § 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 amember “who is appointed in substantial compliance with this chapter or who is entitled to civil service status.” Jd. 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. City of Houston, 807 S.W.2d 290, 291 (Tex.

‘Letter 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 alist 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, .110, .112—.116 (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. Jd. 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. It 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 City of Rockwall v. Hughes, 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 Hunter 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).”

*Because 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).

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SUMMARY

A city that has adopted chapter 143 of the Texas Local
Government Code may create and maintain a reserve police force.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee