How often can Texas police officers vote to change their bargaining agent?

Plain-English summary

Representative Carol Alvarado, who chaired the House Urban Affairs Committee, asked the AG (on behalf of Representative Chris Turner) whether section 142.056 of the Local Government Code limits how often a city can hold elections to decide which association represents its police officers. The backdrop was a dispute in Arlington. For years the Arlington Police Association had been the recognized exclusive representative of covered officers for "meet and confer" bargaining. A rival group, the Arlington Municipal Police Association, petitioned to take over, and the city held an election in February 2015. The rival lost, so the incumbent stayed in place. The rival then filed a second petition just months later, and the city was deciding whether it had to hold another election so soon. Because section 142.056 does not say how often these elections must occur, the request asked whether a 12-month "election bar," like the one in the federal National Labor Relations Act, should be read into the Texas statute.

The AG read the statute in the context of the whole subchapter on police meet-and-confer agreements. That subchapter creates two kinds of votes: public "municipal elections" decided by the city's voters, and "certification elections" decided by the affected police officers. The AG noted that for the public municipal elections, the Legislature wrote in explicit waiting periods (for example, no new recognition petition before the second anniversary of a municipal election, and a two-year wait before ordering an election to repeal meet-and-confer authority). By contrast, nothing in section 142.056 or anywhere else in the subchapter puts a time limit on officer certification elections or on repeat petitions. Under the rule that when the Legislature includes a provision in one part of a code but omits it elsewhere the omission is treated as intentional, the AG concluded that the absence of a waiting period for certification elections was deliberate.

The AG then rejected the idea of borrowing the federal NLRA's one-year election bar. The representation provisions of the NLRA do not apply to Texas municipal employees, and while Texas courts have sometimes looked to federal labor law to clarify a technical term in a Texas statute, the Texas Supreme Court has made clear that Texas labor policy is set by the Texas Legislature and can differ from the federal scheme. Because the subchapter as a whole shows the Legislature chose not to give certification elections preclusive effect, the AG concluded section 142.056 cannot be read to import a federal election-bar rule. The bottom line: section 142.056 does not block repeat petitions or repeat certification elections during any set period after an election.

Currency note

This opinion was issued in 2015. 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. Chapter 142 of the Local Government Code may have been amended since 2015, so confirm the current statute before relying on these specifics.

What the opinion meant for those who asked

Police associations and their members (as the opinion described it): The opinion described section 142.056 as not imposing any waiting period, so it concluded that officers could file a new petition and the city could hold a new certification election without waiting a set time after a prior election.

Cities and their governing bodies (as the opinion described it): The opinion described the subchapter as putting explicit waiting periods only on public municipal elections, not on officer certification elections, and concluded a city is not barred by section 142.056 from ordering another certification election soon after one.

The Legislature (as the opinion described it): The opinion described the contrast between the municipal-election provisions (which carry waiting periods) and the certification-election provisions (which do not) as evidence that the Legislature deliberately chose not to give certification elections preclusive effect.

Common questions

If a police association loses an election, can a rival try again right away?
The AG concluded yes. Section 142.056 of the Local Government Code does not impose any waiting period, so officers can file another petition and the city can hold another certification election without waiting a set time.

Doesn't federal labor law impose a one-year wait between union elections?
The federal NLRA does, but the AG concluded that rule cannot be read into the Texas statute, because the NLRA's representation provisions do not apply to Texas municipal employees and Texas labor policy is set by the Texas Legislature.

Why does the statute set waiting periods for some votes but not others?
The AG explained that the Legislature wrote explicit waiting periods into the public "municipal election" provisions but left them out of the officer "certification election" provisions, and that this kind of omission is treated as a deliberate choice.

Does a city have to recognize a change if a majority of officers petition for it?
The AG described section 142.056 as giving the governing body, in response to a petition for change, the option to either recognize the change or order a certification election under section 142.054.

Background and statutory framework

Subchapter B of chapter 142 of the Local Government Code lets certain municipalities recognize an association as the sole and exclusive bargaining agent of covered police officers under a "meet and confer" agreement (Tex. Loc. Gov't Code §§ 142.051-.068). An association seeks recognition by presenting a petition signed by a majority of covered officers (Tex. Loc. Gov't Code § 142.053), and the governing body may grant recognition, call a public municipal election, or order an officer certification election conducted under section 142.054 (Tex. Loc. Gov't Code § 142.054). Officers may later seek to change the recognized association by petition, and the governing body may recognize the change or order a certification election (Tex. Loc. Gov't Code § 142.056).

The AG construed the statute in the context of the scheme as a whole (Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)). It pointed to the waiting periods the Legislature attached to public municipal elections (Tex. Loc. Gov't Code §§ 142.055, 142.065) and applied the canon that an omission in one part of a code, where a provision appears in another, is treated as intended (PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 84 (Tex. 2004)). On the federal-law question, the AG explained that the NLRA's representation provisions do not reach Texas municipal employees (29 U.S.C. § 152(2); City of Round Rock v. Rodriguez, 399 S.W.3d 130, 136-37 (Tex. 2013)) and that, although Texas courts have sometimes borrowed federal labor law to define technical terms or apply a limitations period (Sayre v. Mullins, 681 S.W.2d 25, 28 (Tex. 1984); Lunsford v. City of Bryan, 297 S.W.2d 115, 117 (Tex. 1957); Dallas Indep. Sch. Dist. v. Am. Fed'n of State, Cnty. & Mun. Emp., 330 S.W.2d 702, 707 (Tex. Civ. App.-Dallas 1959, writ ref'd n.r.e.); Flores v. Metro. Transit Auth., 964 S.W.2d 704, 707 (Tex. App.-Houston [14th Dist.] 1998, no pet.); Diaz v. San Antonio Prof'l Fire Fighters Ass'n, 185 S.W.3d 37, 40 (Tex. App.-San Antonio 2005, no pet.)), Texas labor policy is set by the Texas Legislature, so the federal one-year election bar (29 U.S.C. § 159(c)(3)) cannot be read into section 142.056.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code § 142.056 (petition to change the recognized bargaining agent; certification election)
• Tex. Loc. Gov't Code § 142.053 (petition for recognition; governing body's options)
• Tex. Loc. Gov't Code § 142.054 (certification election procedures)
• Tex. Loc. Gov't Code § 142.055 (municipal meet-and-confer election; waiting period)
• Tex. Loc. Gov't Code § 142.065 (election to repeal meet-and-confer authority; waiting periods)
• 29 U.S.C. § 159(c)(3) (NLRA one-year election bar)
• 29 U.S.C. § 152(2) (NLRA exclusion of state and political-subdivision employers)

Cases:

• Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)
• PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 84 (Tex. 2004)
• Diaz v. San Antonio Prof'l Fire Fighters Ass'n, 185 S.W.3d 37, 40 (Tex. App.-San Antonio 2005, no pet.)
• City of Round Rock v. Rodriguez, 399 S.W.3d 130, 136-37 (Tex. 2013)
• Sayre v. Mullins, 681 S.W.2d 25, 28 (Tex. 1984)
• Lunsford v. City of Bryan, 297 S.W.2d 115, 117 (Tex. 1957)
• Dallas Indep. Sch. Dist. v. Am. Fed'n of State, Cnty. & Mun. Emp., 330 S.W.2d 702, 707 (Tex. Civ. App.-Dallas 1959, writ ref'd n.r.e.)
• Flores v. Metro. Transit Auth., 964 S.W.2d 704, 707 (Tex. App.-Houston [14th Dist.] 1998, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0044
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0044.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

December 4, 2015

The Honorable Carol Alvarado Opinion No. KP-0044
Chair, House Committee on Urban Affairs
Texas House of Representatives Re: Whether section 142.056 of the Local
Post Office Box 2910 Government Code limits the frequency of
Austin, Texas 78768-2910 elections regarding the exclusive bargaining
agent for municipal police (RQ-0029-KP)

Dear Representative Alvarado:

Chapter 142, subchapter B of the Local Government Code authorizes certain municipalities to negotiate with the exclusive bargaining agent of covered police officers pursuant to a "meet and confer" agreement. See TEX. LOC. GOV'T CODE §§ 142.051-.068. On behalf of Representative Chris Turner, you ask whether section 142.056 in subchapter B limits the frequency of elections regarding the exclusive bargaining agent for municipal police. [1]

The request letter provides the following facts. For several years, the Arlington Police Association (the "APA") has been the recognized exclusive representative of covered police officers of the City of Arlington (the "City") for meet-and-confer purposes. Supp. Request at 1. Recently, the Arlington Municipal Police Association (the "AMPA") submitted a petition to be recognized as the exclusive representative instead of the APA. Id. The city ordered an election pursuant to section 142.056, held in February 2015, to allow the affected police officers to decide if AMPA would become their new representative. Id. Because a majority of officers did not vote for the AMPA, the APA remains the exclusive representative for bargaining purposes. Id. at 1-2. The AMPA has now submitted a second petition to be recognized as the exclusive representative. Id. at 2. Although the election on the first petition was held earlier this year, the city is contemplating ordering an election on the second petition. Id. The request letter notes that section 142.056 does not state how often an election must be held in response to such petitions and therefore asks "whether [section] 142.056 should be interpreted to include a 12-month election bar rule" similar to statutes in the National Labor Relations Act (the "NLRA"). Id. (citing 29 U.S.C. § 159(c)(3)).

Courts construe a statute in the context of the statutory scheme as a whole. Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). Thus, we review chapter 142, subchapter B and its election provisions. Subchapter B allows certain municipalities to decide whether to recognize an association as the sole and exclusive bargaining agent of covered municipal police officers for negotiating certain terms and conditions of employment under a "meet and confer" agreement. See TEX. LOC. GOV'T CODE §§ 142.051-.068 (subchapter B). Under the subchapter, some issues may be decided by an election by the voting public of the municipality (a "municipal election") and some issues may be decided by an election by the affected police officers themselves, as discussed below. Initially, a particular association may seek recognition as the "sole and exclusive" municipal police officer bargaining agent by presenting the municipality with a petition signed by the majority of all of the police officers, excluding certain employees. Id. § 142.053(a). A municipal governing body receiving such a petition for recognition has three options. First, the governing body may grant recognition as its own decision, without calling for any election. Id. § 142.053(a)(1). Second, the governing body may defer recognition and call for a municipal election, so that the voting public may decide whether the municipality may meet and confer under subchapter B. Id. §§ 142.053(a)(2), .055(a)-(c) (providing for a municipal meet-and-confer election). Third, a governing body receiving such a petition may order a police officer election, referred to in the statute as a certification election, to determine whether the association represents a majority of the affected police officers. Id. §§ 142.053(a)(3), .054. The election may be held by agreement of the parties or may be conducted by the American Arbitration Association, with election costs to be borne by "the associations named in any petition." Id. § 142.054(a), (b), (d). If the association named in the petition receives a majority of the officers' votes, the governing body must either recognize the association as the sole and exclusive representative or call for a municipal election to decide whether the municipality may meet and confer under the subchapter. Id. §§ 142.053(b)(1), (2), .055.

Although a certification election "resolves the question concerning representation," id. § 142.054(c), police officers may seek to change the recognition of an association by filing "a petition signed by a majority of all covered officers." Id. § 142.056(a). In response to a petition for change, the governing body may either recognize the change or order a certification election to be held under section 142.054. Id. § 142.056(b)(1)-(2). Neither section 142.056 nor any other provision in subchapter B, however, suggests that a certification election precludes subsequent petitions for change or limits the number of certification elections that may be conducted within a given period of time. Id. §§ 142.051-.068.

By contrast, several provisions in subchapter B state that a public municipal election may bar subsequent elections or petitions for a period of time. Section 142.055 provides that whenever a municipal election has been held under the subchapter, no association may submit a subsequent petition for recognition "before the second anniversary of the date of the election." Id. § 142.055(f). Another provision states that when a governing body has granted recognition after a municipal election, the governing body must wait two years before it may order an election to repeal meet-and-confer authorization. Id. § 142.065(b). That provision states further that, when a municipal election to repeal meet-and-confer authority has been held, no association may submit another petition seeking recognition for two years after the election. Id. § 142.065(g). These provisions demonstrate that the Legislature knows how to give an election preclusive effect if it so chooses. "When the Legislature includes a right or remedy in one part of a code but omits it in another that may be precisely what the Legislature intended." PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 84 (Tex. 2004) (stating further that courts "must honor that difference"). Because subchapter B provides for municipal elections to have preclusive effect, we must assume that the omission of a provision giving similar preclusive effect to certification elections was deliberate. See id.

The request letter asks, however, if subsection 142.056(b) might be construed as incorporating a federal "election bar rule." See Supp. Request at 2. The request letter notes that the NLRA provides that "[n]o election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held." 29 U.S.C. § 159(c)(3); see Supp. Request at 2. The request letter further notes that a Texas court has borrowed law from the NLRA in another context, applying a statute of limitations from the NLRA to a state labor-relations claim. See Supp. Request at 2 (citing Diaz v. San Antonio Prof'l Fire Fighters Ass'n., 185 S.W.3d 37, 40 (Tex. App.-San Antonio 2005, no pet.)).

The representation provisions of the NLRA do not apply to Texas municipal employees. City of Round Rock v. Rodriguez, 399 S.W.3d 130, 136-37 (Tex. 2013) (citing 29 U.S.C. § 152(2)). Courts have, on occasion, looked to federal law to clarify a state statute "when a Texas statute and federal statute are animated in their common history, language, and purpose." Id. at 135 (quotation marks omitted). For example, courts have relied on federal law to determine the meaning of a word or phrase in a Texas labor-relations statute that has acquired a technical meaning. See, e.g., Sayre v. Mullins, 681 S.W.2d 25, 28 (Tex. 1984) ("condition of work"); Lunsford v. City of Bryan, 297 S.W.2d 115, 117 (Tex. 1957) ("membership"); Dallas Indep. Sch. Dist. v. Am. Fed'n of State, Cnty. & Mun. Emp., 330 S.W.2d 702, 707 (Tex. Civ. App.-Dallas 1959, writ ref'd n.r.e.) ("representative"). And as the request letter notes, courts have applied an NLRA statute of limitations to a state cause of action when it will require a "review and interpretation of the pertinent labor agreement and [the cause of action] strongly resembles an unfair labor practices charge." Flores v. Metro. Transit Auth., 964 S.W.2d 704, 707 (Tex. App.-Houston [14th Dist.] 1998, no pet.); see also Diaz, 185 S.W.3d at 40.

But courts construe a Texas public labor relations statute, like any other statute, with a goal of discerning the Legislature's intent. City of Round Rock, 399 S.W.3d at 133. As the Texas Supreme Court recently noted, the Texas Legislature can and has made policy choices in Texas labor-relation statutes that differ from Congress's choices in the NLRA. Id. at 137 ("In Texas, ... labor policy and regulation is determined exclusively by the Texas Legislature and the language of its legislative enactments."). Because chapter 142, subchapter B as a whole indicates that the Legislature chose not to give officer elections preclusive effect, section 142.056 of the Local Government Code cannot be construed as incorporating federal law to the contrary. See id. at 139 (refusing to incorporate representation rights under the NLRA when the state statute is silent on the issue). Accordingly, section 142.056 of the Local Government Code does not preclude subsequent petitions or certification elections for a period of time after an election is held under that section.

SUMMARY

Section 142.056 of the Local Government Code does not preclude a police officers association from filing subsequent petitions for recognition as the exclusive bargaining agent or preclude holding certification elections for a period of time after an election is held under that section.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Carol Alvarado, Chair, House Comm. on Urban Affairs, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (June 16, 2015) and Letter from Honorable Chris Turner, Tex. House of Reps., to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (June 16, 2015) ("Supp. Request"), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs; see also Letter from Honorable Robert Rivera, Arlington City Council, to Honorable Chris Turner (June 10, 2015) (on file with the Op. Comm) (collectively the "Request Letter").