dissenting.
In its motion for rehearing, among other things, the City of Houston alleges that the court: (1) failed to apply the proper standard of review; (2) misinterpreted the purpose and significance of section 143.023(e) of the Fire Fighters’ and Police Officers’ Civil Service Act1 (the Act); (3) erred by judicially amending the Act to add words not expressly or necessarily implied in the language of the Act; and (4) that the majority opinion is internally inconsistent. I agree.
The constitution grants broad discretionary powers to home-rule cities subject to the limitation that ordinances must not be inconsistent with the constitution or other state statute. Tex.Const. art. XI, § 5; City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex.1990). Therefore, we should hold that a state statute restricts local autonomy only if the legislative intent to do so is unmistakably clear. As we said in Lower Colorado River Authority v. City of San Marcos:
A limitation on the power of home rule cities by general law or by charter may be either an express limitation or one arising by implication. “Such a limitation will not be implied, however, unless the provisions of the general law or of the charter are clear and compelling to that end.” [Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 649 (1951)]. The intention of the Legislature to impose such limitation must “appear with unmistakable clarity.” [City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.1964) ].
523 S.W.2d 641, 645 (Tex.1975) (emphasis added). I agree with the City that the petitioners have failed to meet this rigorous burden.
The court holds that the Act proscribes the City’s attempt to restructure the police department by ordinance. The City does not advocate an absurdist construction which would “nullify the Act as a whole.” 807 S.W.2d 292 n. 3. There is no dispute that the Act is clearly intended to protect traditional law enforcement positions. The issue here is whether the Act clearly extends coverage beyond such positions. The majority opinion does not demonstrate how this legislative intent appears “with unmistakable clarity.” To the contrary, it is replete with observations about the lack of a clear expression of legislative intent. For example the opinion states:
the Act requires the city council, or other legislative body, to provide by ordinance *303for the classification of all fire fighters and police officers; that is, to place all such officers within the protection of a civil service system. Section 143.021. The proper boundaries of that system, however, are not clear.
807 S.W.2d at 291 (emphasis added).
With a 1957 amendment, however, the Act’s definition of “policeman” [i.e., those covered by the Act] became less clear.... Thus, since 1957, the Act’s most important definition has been circular.
807 S.W.2d at 291 (emphasis added).
Since the adoption of the new definition of “policeman,” the legislature has amended the statute at least thirty-two times. In none of those instances, however, did the legislature address the opaqueness of the statute’s most basic provision. Until the legislature clearly defines the scope of the Fire Fighter’s and Police Officers’ Civil Service System, courts will be left to apply the vague standard we discern today to increasingly complex bureaucracies.
807 S.W.2d at 294 n. 9 (emphasis added). Thus the court concedes that there is no evidence of a legislative intent that the Act must cover any supervisor of a classified officer.
In reaching its decision, the court announces a two-prong test, but fails to apply it to supervisors. Instead, the court announces an additional rule that categorically, supervisors of classified employees must themselves be covered by the Act. It does so based on a concept that “vertical declassification” is permissible while “horizontal” declassification is not. As the City correctly points out in its motion for rehearing, these concepts or categories are nowhere to be found in the language of the Act nor its legislative history. They are of the court’s own creation.
The Act unmistakably expresses a policy of providing a career ladder for “police officers” free from political influence. Tex.Loc.Gov’t Code Ann. § 143.001(a). Nothing in the City’s system threatens that policy. If, as here, the number of positions at every rank is not diminished, and a covered officer is afforded the full panoply of rights such as advancement by competitive testing, that policy is served. Another clear policy of the Act is development and maintenance of an efficient and capable police force. Id. This policy is not well served by requiring that positions be filled by persons qualified to be licensed officers without regard for whether those skills are relevant to the job to be performed. This objective is of particular concern given Houston’s documented need to devote more qualified personnel to traditional law enforcement duties.
The majority’s infringement on local autonomy is unwarranted absent a clear expression of legislative intent to that effect. For these reasons and those discussed in my earlier dissenting opinion, I would grant the motion for rehearing.
CORNYN, J., joins this opinion.
. Tex.Loc.Gov't Code Ann. §§ 143.001-143.134 (Vernon 1988 & Supp. 1991).