Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 20, 2007

'The Honorable Kevin Bailey Opinion No. GA-0586
Chair, Committee on Urban Affairs
Texas House of Representatives Re: Whether a local civil service commission
Post Office Box 2910 may adopt a rule that awards additional points to
Austin, Texas 78768-2910 applicants on the basis of residency within the
municipality (RQ-0599-GA)

Dear Representative Bailey:

You ask whether a local civil service commission may adopt a rule that awards additional
points to applicants on the basis of residency within the municipality.1

Section 143.025 of the Local Government Code addresses the subject of civil service
examinations for municipal fire fighters and police officers. A local 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. Lac. GOV'T CODE ANN. § 143.025(a)
(Vernon Supp. 2007). Another portion of the statute directs that "[a]n additional five points shall
be added to the examination grade of an applicant who served in the United States armed forces,
received an honorable discharge, and made a passing grade on the examination." Id. § 143.025(f).
Subsection (i) then provides the formula for determining an applicant's score on the examination:

(i) The grade to be placed on the eligibility list for each
applicant shall be computed by adding an applicant's points under
Subsection (f), if any, to the applicant's grade on the written
examination. Each applicant's grade on the written examination is
based on a maximum grade of100percent and is determined entirely
by the correctness of the applicant's answers to the questions.
The minimum passing grade on the examination is 70 percent. An
applicant must pass the examination to be placed on an eligibility list.

Id. § 143 .025(i) (emphasis added). You indicate that the civil service commission ofthe City ofPort
Arthur (the "Commission") has adopted Rule 9.20(B), which states:

lLetter from Honorable Kevin Bailey, Chair, Urban Affairs Committee, Texas House of Representatives, to
Honorable Greg Abbott, Attorney General ofTexas (June 26, 2007) (on file with the Opinion Committee, also available
at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Kevin Bailey - Page 2 (GA-0586)

An applicant who can prove that they [sic] have been a bona
fide resident of the City of Port Arthur, for three (3) months prior to
the examination date and passes the examination shall receive an
additional five (5) points. Said points shall be added to the passing
grade of the applicant.

Request Letter, supra note 1, at 1. You question whether the Commission may "adopt local rules
regarding entrance examination grades that allow[] final scores to be determined in a manner other
than that specified in section 143.025." Id. at 2.

When construing a statute, one's primary objective is to ascertain and give effect to the
Legislature's intent. City ofHouston v. Jackson, 192 S.W.3d 764,770 (Tex. 2006). To determine
that intent, we look to the. plain and common meaning ofthe words of a particular statute. Id. When
the statutory language is unambiguous, we must construe the statute as written. Id.

In the situation you present, the Legislature has specified the precise means ofcalculating an
applicant's score on a civil service examination. Section 143.025(i) provides that the formula for
computing the "grade to be placed on the eligibility list for each applicant" requires the addition of
two components. The first component is the "applicant's grade on the written examination." TEX.
Loc. GOV'T CODE ANN. § 143.025(i) (Vernon Supp. 2007). And the grade on the written
examination "is determined entirely by the correctness of.the applicant's answers to the questions."
Id. The second component ofthe "grade to be placed on the eligibility list" is the "applicant's points
under Subsection (f), if any," Le., the applicant's additional points for military service. Id. By its
plain language, section 143.025(i) does not authorize any additional component to the "grade to be
placed on the eligibility list."

The attorneys for the City of Port Arthur and for the Commission contend that the question
is whether the Commission's rule is preempted by any portion of section 143.025 2 or by section
150.021(a) of the Local Government Code. 3 Preemption is a principle that applies to home-rule
municipalities. See In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2003) (quoting Dallas Merchant's &
Concessionaire's Ass'n v. City ofDallas, 852 S.W.2d 489,491 (Tex. 1993)). A local civil service
commission, however, is not vested with the expansive authority of a home-rule city. When a
municipality adopts chapter 143 ofthe Local Government Code, a Fire 'Fighters' and Police Officers'
Civil Service Commission "is established in the municipality." TEX. Loc. GOV'T CODE ANN.
§ 143.006(a) (Vernon Supp. 2007). In Stauffer v. City ofSan Antonio, 344 S.W.2d 158 (Tex. 1961),
the Texas Supreme Court considered the status of the civil service commission of the City of San
Antonio. The court declared that "[a]n administrative agency such asthe Civil Service Commission
has only such powers as are expressly granted to it by statute together with those necessarily implied

2See Brief from The Parker Law Firm, on behalf of the City of Port Arthur and the Port Arthur Civil Service

Commission, to Honorable Greg Abbott,Attorney General of Texas, at 2 (Aug. 10,2007).

3S ection 150.021 declares, in part, that "[a] municipality may not require residency within the municipal limits
as a condition, of employment with the municipality." TEX. Lac. GOV'T CODE ANN. § 150.021 (a) (Vernon 1999).
The Honorable Kevin Bailey - Page 3 (GA-0586)

from the authority conferred or duties imposed." Id. at 160. The Commission wishes to adopt a rule
that permits the award of additional points to an applicant's "grade to be placed on the eligibility
list," just as the Legislature has awarded an additional five points for military service. But the
Commission is not the Legislature. Rather, its status is that of an administrative agency with only
limited powers expressly provided by law. See Glass v. State, 244 S.W.2d 645, 652 (Tex. 1952)
("Civil Service Commissions are usually regarded as administrative agencies exercising only purely
administrative powers.").

We conclude that section 143.025(i) of the Local Government Code precludes any attempt
by the Commission to award additional points to a civil service applicant on the basis of residence
within the City of Port Arthur. As a result, we need not address whether the local rule is also
precluded by section 150.021(a) of the Local Government Code.
The Honorable Kevin Bailey - Page 4 (GA-0586)

SUM M AR Y

A local civil service commission may not adopt a rule that
awards additional points to an applicant on the basis of residency
within the municipality.

Yours very truly,

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee