Does renaming police captains to 'assistant chiefs' change how many a Texas city can appoint?

Plain-English summary

Texas municipal civil service law generally requires police department positions to be filled through competitive examination, but Local Government Code section 143.014 carves out an exception for the rank just below the department head, letting the head appoint qualified individuals directly. To keep that exception from inflating the upper ranks, subsection 143.014(c) caps the number: the total appointed to the classification immediately below department head may not exceed the number serving in that classification on January 1, 1983, plus one.

Representative Tracy O. King, chair of the House Committee on Agriculture and Livestock, asked the Attorney General how to count that cap when the job title has changed over the decades. On January 1, 1983, a department had four "captains" in the classification immediately below the head. Today that same classification is titled "assistant chief," a title that did not exist in the department in 1983. The question was whether the cap still keyed to that 1983 group even though the title was different.

The Attorney General concluded the title does not control. Reading the statute by the plain meaning of its words, the AG noted that subsection 143.014(c) describes the capped group solely by its place in the department's hierarchy, the classification immediately below that of department head, not by any particular title. Nothing in the statute makes the title of the people in that classification determinative. Chapter 143 reinforces that approach by defining "department head" as the chief or head of the department, or that person's equivalent, regardless of the name or title used. So the number a department head may appoint under subsection 143.014(c) may not exceed the number of positions, plus one, in the classification immediately below department head as it stood on January 1, 1983, whatever those positions are now called.

Currency note

This opinion was issued in 2013. 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

The House Committee on Agriculture and Livestock (as the opinion described it): The opinion answered that the subsection 143.014(c) cap is measured by the number of positions in the classification immediately below department head on January 1, 1983, plus one, and that a later change in the title of that rank (from "captain" to "assistant chief") does not change the count.

Police department heads and cities (as the opinion described it): The opinion described the cap on direct appointments to the rank below chief as fixed by the 1983 headcount in that classification, irrespective of the title used today, and noted in a footnote that subsection 143.014(c) does not apply to a municipality that has adopted The Fire and Police Employee Relations Act unless it adopts the procedure through collective bargaining.

Common questions

How many officers can a police chief appoint to the rank just below chief?
Under subsection 143.014(c), no more than the number serving in that classification on January 1, 1983, plus one. The AG concluded that count is fixed by the 1983 figure for that classification.

Does it matter that the rank is now called "assistant chief" instead of "captain"?
No. The AG concluded the title does not control. The statute defines the capped group by its position in the department hierarchy, the classification immediately below the department head, not by the title used.

Where does the law define these ranks by function rather than title?
The AG pointed to Chapter 143's definition of "department head" as the chief or head of the department, or that person's equivalent, regardless of the name or title used, as confirming that the analysis turns on classification, not title.

Background and statutory framework

In municipalities that adopt chapter 143, police positions generally must be filled by competitive examination (Tex. Loc. Gov't Code Ann. §§ 143.002(a)(1)(C), .004, .021(c) (West 2008)). Section 143.014 is an exception, letting the head of a qualifying department appoint individuals to the classification immediately below department head, capped at the number serving there on January 1, 1983, plus one (Tex. Loc. Gov't Code Ann. § 143.014(a), (b), (d); § 143.014(b), (c); § 143.014(c) (West 2008)). The AG read the statute by the plain meaning of its words and in context (Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012); Tex. Gov't Code Ann. § 311.011(a) (West 2013)), and relied on Chapter 143's title-neutral definition of "department head" (Tex. Loc. Gov't Code Ann. § 143.003(2)). A footnote noted the subsection's collective-bargaining exception under The Fire and Police Employee Relations Act (Tex. Loc. Gov't Code Ann. § 143.014(c) (West 2008)).

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 143.014(c) (West 2008) (cap keyed to January 1, 1983 classification headcount, plus one)
• Tex. Loc. Gov't Code Ann. § 143.014(a), (b), (d), § 143.014(b), (c) (appointment exception below department head)
• Tex. Loc. Gov't Code Ann. §§ 143.002(a)(1)(C), .004, .021(c) (West 2008) (competitive examination requirement)
• Tex. Loc. Gov't Code Ann. § 143.003(2) ("department head" defined regardless of title)
• Tex. Gov't Code Ann. § 311.011(a) (West 2013) (words read in context)

Cases:

• Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1029
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1029.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

November 25, 2013

The Honorable Tracy O. King Opinion No. GA-1029
Chair, Committee on Agriculture and
Livestock Re: Whether Local Government Code section
Texas House of Representatives 143.014 authorizes a municipality to appoint
Post Office Box 2910 additional assistant municipal police chiefs
Austin, Texas 78768-2910 (RQ-1130-GA)

Dear Representative King:

You ask us to determine the proper number of police officers that a police department head may appoint under Texas Local Government Code subsection 143.014(c).[1] That statute provides in relevant part: "In a police department, the total number of persons appointed to the classification immediately below that of department head may not exceed the total number of persons, plus one, serving in that classification on January 1, 1983." TEX. LOC. GOV'T CODE ANN. § 143.014(c) (West 2008). Without referencing any specific municipality's police department, you explain that on January 1, 1983, there were four "captains" in the classification immediately below department head. Request Letter at 1. You tell us that today, the classification immediately below department head has the title "assistant chief." Id. Because the title "assistant chief" did not exist in the department in 1983, you inquire specifically as to the maximum number of assistant chiefs a city can appoint today pursuant to section 143.014. Id.

In municipalities that have elected to adopt chapter 143, municipal police department positions generally must be filled pursuant to a competitive examination process. TEX. LOC. GOV'T CODE ANN. §§ 143.002(a)(1)(C), .004, .021(c) (West 2008). Section 143.014 provides an exception to that requirement, allowing the governing body of a municipality with a population of less than 1.5 million to authorize the head of a municipal police department in which four classifications exist below the classification of department head to appoint individuals who meet certain qualifications. Id. § 143.014(a), (b), (d). A department head's appointment authority under this section is limited to "the classification immediately below that of department head" in a number equal to the number of individuals, plus one, "serving in that classification on January 1, 1983." Id. § 143.014(b), (c) (emphasis added).

When construing a statute, courts strive to determine and give effect to the Legislature's intent, as evidenced by "the plain meaning of the words chosen." Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). Words and phrases are meant to be read in context. TEX. GOV'T CODE ANN. § 311.011(a) (West 2013). The phrase "that classification" in subsection (c) refers to "the classification immediately below that of department head." TEX. LOC. GOV'T CODE ANN. § 143.014(c) (West 2008). The Legislature chose to describe "that classification" solely by its place, relative to that of department head, within the hierarchy of a municipality's police department. Nothing in the statute indicates that the Legislature intended for the title of the individuals within that classification to be determinative. Indeed, Chapter 143 defines "department head" as "the chief or head of a fire or police department or that person's equivalent, regardless of the name or title used." Id. § 143.003(2). Therefore, the number of persons a department head may appoint under subsection 143.014(c) may not exceed the number of positions, plus one, in the classification "immediately below that of department head" on January 1, 1983, irrespective of the particular title used.[2]

SUMMARY

Under Local Government Code subsection 143.014(c), the number of persons a police department head may appoint may not exceed the number of positions, plus one, in the classification "immediately below that of department head" on January 1, 1983, irrespective of the particular title used.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Tracy O. King, Chair, Comm. on Agriculture and Livestock, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (May 24, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Subsection 143.014(c) "does not apply to a municipality that has adopted The Fire and Police Employee Relations Act unless the municipality adopts the appointment procedure prescribed by [subsection (c)] through the collective bargaining process." TEX. LOC. GOV'T CODE ANN. § 143.014(c) (West 2008).