Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 20, 2010
The Honorable Charlie Geren Opinion No. GA-0771
Chair, Committee on House Administration
Texas House of Representatives Re: Application of Local Government Code section
Post Office Box 2910 143.014(c) to municipalities that have adopted
Austin, Texas 78768-2910 chapter 174 of the Local Government Code, the Fire
and Police Employee Relations Act; reconsideration
of Attorney General Opinion GA-0662 (2008)
(RQ-0840-GA)
Dear Representative Geren:
You ask about the "[a]pplication of Local Government Code section 143.014(c) to
municipalities that have adopted Local Governrilent Code [c]hapter 174, the Fire and Police
Employee Relations Act" (the "FPERA").! You request that we reconsider part of a 2008 opinion
of this office that construed Local Government Code subsection 143.014(c), a provision of the Fire
Fighter and Police Officer Civil Service Act. See Request Letter (requesting reconsideration of
Attorney General Opinion GA-0662).
Section 143.014 provides, in relevant part, that
(b) If approved by the governing body of the municipality by
resolution or ordinance, the head of a fire or police department in the
municipality in which at least four classifications exist below the
classification of department head may appoint each person occupying
an authorized position in the classification immediately below that of
department head, as prescribed by this section. The classification
immediately below that of department head may include a person
who has a different title but has the same pay grade.
(c) 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. In a fire department in a
lRequest Letter (available at http://www.texasattomeygeneral.gov).
The Honorable Charlie Geren - Page 2 (GA-0771)
municipality having fewer than 300 certified fire fighters, the
department head may appoint not more than one person to the
classification immediately below 'that of department head. If a
municipality has 300 to 600 certified fire fighters, the department
head may appoint two persons to the classification. If a municipality
has more than 600 certified fire fighters, the department head may
appoint three persons to the classification. This subsection does not
apply to a municipality that has adopted The Fire and Police
Employee Relations Act [chapter 174 ofthe Local Government Code]
unless the municipality specifically adopts the appointmentprocedure
prescribed by this subsection through the collective bargaining
process.
TEx. Loc. GOV'T CODE ANN. § 143.014(b)-(c) (Vernon 2008) (emphasis added).
Attorney General Opinion GA-0662 (the "Opinion") concluded that a city's adoption of the
FPERA does not change the authority of a fire chief to appoint persons to the classification
immediately below his own classification under Local Government Code subsection 143.0 14(b), but
removes the numerical limits established by subsection 143.0 14(c), unless the city adopts a collective
bargaining agreement providing otherwise. Tex. Att'y Gen. Op. No. GA-0662 (2008) at 3. The
Opinion, focusing on the express language of subsection 143.0 14(c), construed the term "subsection"
in accordance with the Code Construction Actand the plain and common meaning ofthat term. Id.
Having reexamined Attorney General Opinion GA-0662 and finding no case law since the
issuance ofthe Opinion that construes subsection 143.0 14(c) otherwise, we conclude that it correctly
states the law.
The Honorable Charlie Geren - Page 3 (GA-0771)
SUMMARY
When a municipality that is subject to the Fire Fighter and
Police Officer Civil Service Act adopts Local Government Code
chapter 174, the Fire and Police Employee Relations Act, subsection
143.014(c), limiting the number of deputies who may be appointed,
becomes inapplicable to the municipality. These limits may be
reimposed if the municipality specifically adopts them through the
collective bargaining process. Attorney General Opinion GA-0662
(2008) is affirmed in relevant part.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Christy Drake-Adams
Assistant Attorney General, Opinion Committee