Which police officers are eligible to take the sergeant promotional exam in San Benito, Texas?

Plain-English summary

A house committee chair asked whether a Police Officer II in San Benito was eligible to take the promotional exam for sergeant. Under the Municipal Civil Service Act (Local Government Code chapter 143), an officer may sit for a promotional exam only if, for at least two years before the exam date, the officer continuously held a position in the classification immediately below, in salary, the rank being tested for. So the case turned on whether Police Officer II and Police Officer III were two separate classifications or merely two salary steps within one classification.

If they were separate classifications, then only Police Officers III, the rank just below sergeant, could take the exam (unless too few applicants held that rank). That is what a 1995 court of appeals decision, Klinger v. City of San Angelo, required where San Angelo's ordinance designated Fire Fighter Recruit, Fire Fighter I, Fire Fighter II, and Driver as four distinct classifications and expressly required two years as a Fire Fighter II to become a Driver. But if Police Officer II and III were salary steps within one classification, an earlier AG opinion (JM-582) would let both ranks test.

The opinion concluded San Benito had implicitly treated the two ranks as a single classification. Its Ordinance No. 2204 says all officers with two years of continuous service "as Police Officer II and/or Police Officer III" may take the sergeant's exam, and advancement from II to III is automatic at five years of service rather than by examination. The opinion distinguished Klinger, where the city's ordinance plainly set up separate classes, and noted that just as a court would not disregard San Angelo's designated classifications, the AG would not disregard San Benito's explicit decision. So officers with two years as either Police Officer II or III are eligible for the sergeant exam.

Currency note

This opinion was issued in 2001. 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 City of San Benito and its police officers (what the opinion held for them): The opinion held that San Benito's ordinance treated Police Officer II and III as a single classification, so officers with two years of continuous service in either rank were eligible to take the sergeant's promotional exam.

Other civil service cities setting up police and fire ranks (what the opinion held for them): The opinion turned on how the city's own ordinance defined its classifications, contrasting San Benito's combined treatment with the separate classifications in Klinger, where only the rank immediately below could test.

Common questions

Who can take a Texas police promotional exam under chapter 143?
The opinion explained that an officer must have held, for at least two years before the exam, a position in the classification immediately below in salary the rank being tested for.

Why could both Police Officer II and III take the San Benito sergeant exam?
The opinion read San Benito's ordinance, which let officers with two years as Police Officer II or III sit for the exam and made the II-to-III move automatic, as treating those ranks as one classification rather than two.

How is this different from the Klinger case?
In Klinger the city's ordinance designated separate classifications and required two years in the rank just below before testing. The opinion found San Benito's ordinance did the opposite by combining the two ranks.

Background and statutory framework

The Municipal Civil Service Act, Local Government Code chapter 143, aims to secure efficient police and fire departments staffed by merit and protected from political influence, requiring covered cities to develop a classification plan and promotion rules. See Tex. Loc. Gov't Code Ann. § 143.001(a) (Vernon 1999). Section 143.031 makes an officer eligible for a promotional exam only after holding, for at least two years immediately before the exam, a position in the classification immediately below in salary the classification being tested for. The city's governing body establishes the classifications by ordinance under section 143.021(a). The opinion applied Klinger v. City of San Angelo, 902 S.W.2d 669 (Tex. App.-Austin 1995, writ denied), which held that where an ordinance designates separate classifications, only the rank immediately below may test, and distinguished it because San Benito's Ordinance No. 2204 combined Police Officer II and III for exam eligibility and made advancement between them automatic.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. §§ 143.001(a), 143.021(a), 143.031 (Vernon 1999)

Cases:

• Klinger v. City of San Angelo, 902 S.W.2d 669 (Tex. App.-Austin 1995, writ denied)

Local enactment:

• San Benito, Tex., Ordinance No. 2204 (1999)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0340
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0340.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

February 12, 2001

The Honorable Jim Solis
Chair, Committee on Economic Development
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0340

Re: Eligibility of a police officer for a promotional examination under the terms of section 143.031 of the Local Government Code (RQ-0282-JC)

Dear Representative Solis:

You have asked this office whether a Police Officer II in the City of San Benito, Texas is eligible, pursuant to section 143.031 of the Local Government Code, to take the promotional examination for the rank of sergeant. In effect, as we understand it, your question is whether Police Officer II, which under the relevant San Benito city ordinance is the position an officer attains on completion of an initial probationary period, and Police Officer III, a position attained when the officer has five years of continuous service with the city, are distinct classifications for the purpose of section 143.031, or are merely salary steps within a single classification. If the two ranks are merely salary steps within the same classification, then, a brief submitted with your request argues, this office should apply the reasoning of a prior opinion, Tex. Att'y Gen. Op. No. JM-582 (1986), and hold that "Police Officer II's and Police Officer III's are eligible to take the exam for, and thereafter be promoted to, the position of sergeant."(1) On the other hand, if Police Officer II and Police Officer III are distinct classifications, then Police Officers III are the only persons eligible to take the examination for sergeant unless there is an insufficient number of applicants who have attained that position. See Klinger v. City of San Angelo, 902 S.W.2d 669, 675 (Tex. App.-Austin 1995, writ denied). In this instance, we believe that the question of whether these ranks were merely salary steps or distinct classifications has implicitly been decided by the City of San Benito, which by ordinance has ruled that, "All police officers with two (2) years of continuous service as [P]olice [O]fficer II and/or Police Officer III with the San Benito Police Department may take [the] examination" for sergeant. SAN BENITO, TEX., ORDINANCE No. 2204 (1999) (emphasis added). Moreover, advancement from Police Officer II to Police Officer III in the San Benito scheme requires no examination, but is automatic upon the completion of five years of service. Police Officers III are "[a]ll police officers who have five (5) or more years of continuous service with the San Benito Police Department." Id. Given that these ranks are, within the relevant scheme, merely salary steps rather than distinct classifications, we agree with your suggestion that "both Police Officers II and III are eligible for . . . promotion" to the rank of sergeant on the basis of competitive examination.(2)

(Footnote 1: Brief from Richard W. Carter, Attorney for Combined Law Enforcement Association of Texas (CLEAT), to Susan D. Gusky, Chair, Opinion Committee, Office of the Attorney General at 4 (Oct. 3, 2000) (on file with Opinion Committee).)

(Footnote 2: Letter from Honorable Jim Solis, Chair, House Committee on Economic Development, to Honorable John Cornyn, Texas Attorney General (Sept. 11, 2000) (on file with Opinion Committee).)

Chapter 143 of the Local Government Code, the Municipal Civil Service Act (the "Act"), is intended "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." TEX. LOC. GOV'T CODE ANN. § 143.001(a) (Vernon 1999). To that end, a city covered by the Act "is required to develop a classification plan and establish rules regarding promotion within its police and fire departments." Klinger, 902 S.W.2d at 671. "A fundamental principle of civil service is that appointments must be made according to merit and fitness, ascertained by competitive examinations." Id. In order to be eligible to take such an examination, a police officer must "for at least two years immediately before the examination date [have] continuously held a position in the classification that is immediately below, in salary, the classification for which the examination is to be held." TEX. LOC. GOV'T CODE ANN. § 143.031 (Vernon 1999) (emphasis added).

In interpreting the parallel section of the Act dealing with fire fighters, this office held that it permitted all fire fighters within the immediately lower classification who had two years of continuous service to take the promotional examination, regardless of whether they were "in the highest salary step within [the] classification." Tex. Att'y Gen. Op. No. JM-582 (1986) at 3.

On the other hand, the Third Court of Appeals in 1995 held that a fire fighter employed by the City of San Angelo at the rank of Fire Fighter II, who had been so employed for less than two years at the time that a promotional examination for the position of Driver ought to have been given, had suffered no harm from the city's delay, because at the relevant time he was not eligible to take the examination. Klinger, 902 S.W.2d at 674. In so holding, the court rejected the fire fighter's argument "that Fire Fighter Recruit, Fire Fighter I, and Fire Fighter II actually comprise three stages of only one classification" and that consequently the fire fighter's "combined service in the three categories satisfied the statutory requirements and rendered him eligible for promotion and examination." Id. In the court's view, this argument asked it "to disregard the City's designated classifications and consider them merely 'stages' within one class." Id. at 675. The implications of Klinger for the instant case are clear. If Police Officer II and Police Officer III in the City of San Benito were, as the Court of Appeals held Fire Fighter I and Fire Fighter II in San Angelo to be, "separate classifications," id., then pursuant to section 143.031 of the Local Government Code only those officers in the higher classification of Police Officer III would be eligible to take the sergeant's examination.

However, Klinger is in our view distinguishable from the present instance. Klinger's rationale depends upon the finding that the San Angelo ordinance "designates Fire Fighter Recruit, Fire Fighter I, Fire Fighter II, and Driver as four separate classifications. Fire Fighter II is the position immediately below Driver. The ordinance expressly requires that a Driver must have two years' experience as a Fire Fighter II." Id. at 674. Such is not the case with the San Benito city ordinance. That ordinance, pursuant to which the city's governing body "established the classifications," TEX. LOC. GOV'T CODE ANN. § 143.021(a) (Vernon 1999), provides that "All police officers with two (2) years of continuous service as [P]olice [O]fficer II and/or Police Officer III with the San Benito Police Department may take [the sergeant's] examination." SAN BENITO, TEX., ORDINANCE NO. 2204 (1999).(3) Accordingly, in our view, the City of San Benito has implicitly determined that these two pay grades constitute a single civil service classification.

Just as the Court of Appeals in Klinger would not "disregard the City [of San Angelo]'s designated classification," Klinger, 902 S.W.2d at 675, so this office may not disregard the explicit decision of the City of San Benito that persons with two years' continuous service as either Police Officer II or Police Officer III are eligible to take the civil service examination for the position of sergeant.

(Footnote 3: This office ordinarily does not interpret municipal ordinances in the opinion process. See Tex. Att'y Gen. Op. No. JC-0218 (2000) at 2. However, we will, as here, take note of the plain language of such ordinances. Cf. Tex. Att'y Gen. LO-95-057, at 3 (noting that clear provisions of city charter make interpretation unnecessary).)

SUMMARY

Police officers who have two years of continuous service as either Police Officer II or Police Officer III with the City of San Benito, Texas are eligible to take that city's civil service promotional examination for the rank of sergeant.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee