If a Texas police officer resigns and the city accepts it, can he take the resignation back and get his job and seniority returned?

Plain-English summary

A Texas police officer in DeSoto resigned, then wanted to take the resignation back and return to the force. A state representative asked the Attorney General whether chapter 143 of the Local Government Code, the civil service law for police and fire departments, let the officer rescind his resignation and get reinstated by the chief.

The Attorney General said no. Chapter 143 itself says almost nothing about resignations, so the opinion turned to the general law of public-officer resignations. The settled rule is that once a resignation has been accepted by someone with authority to accept it, it is final, the officer cannot pull it back even if the person who accepted it would now agree. So a chief cannot simply "reinstate" a previously resigned officer; doing that would be the same as letting him withdraw a resignation that already took effect.

That did not mean the officer could never wear the badge again. It meant he had to come in the front door. A voluntary, effective resignation breaks service completely and wipes out accumulated seniority and benefits, so the returning officer has to be treated like any new applicant for an entry-level position, hired and later promoted only through the regular methods in subchapter B of chapter 143 (and subchapter G where it applies). The opinion also confirmed that the local civil service commission had jurisdiction to look into a claimed reinstatement, because policing chapter 143's requirements is exactly what the commission is for. Finally, if someone ends up holding a police position he was never properly appointed to, the opinion laid out who can remove him: the police chief can initiate removal, the civil service commission has only appellate authority, the attorney general or a district or county attorney can bring a quo warranto suit, and a city charter may give the council or chief executive removal power.

Currency note

This opinion was issued in 1993. 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 143 of the Local Government Code (municipal civil service) and chapter 66 of the Civil Practice and Remedies Code (quo warranto) have been amended and renumbered since 1993; confirm current law before relying on anything described here.

Background and statutory framework

Chapter 143 of the Local Government Code creates and regulates civil service systems for municipal police and fire departments. Its stated purpose (section 143.001) is to secure efficient departments staffed by capable personnel who are free from political influence and who have permanent employment tenure. The chapter is largely silent on resignations; the only resignation-related provision the Attorney General identified was section 143.088, which makes it an offense to give or accept a bribe in return for hiring or resigning from a civil service position. Because police officers are public officers, the opinion drew on the general law of public-officer resignations (Sawyer v. City of San Antonio).

On reinstatement, the opinion applied two general rules: the benefit of permanent tenure runs only to a person who keeps his status as a civil service employee, and an accepted, effective resignation cannot be withdrawn even with the consent of the accepting authority (Andrews v. Lamb; Crouch v. Civil Serv. Comm'n). A voluntary, effective resignation was treated as a complete break in service that forfeits seniority, so reentry equals a fresh appointment (Doering v. Hinrichs). Finding no statute to the contrary, the Attorney General concluded the officer must be handled as an entry-level applicant and appointed and promoted only by the methods in subchapter B (sections 143.021 through 143.038) and, where applicable, subchapter G (sections 143.101 through 143.134, most of which applies to cities of 1.5 million or more).

On the commission's role and on removal, the opinion read section 143.009 (commission may investigate and report on matters relating to enforcement of chapter 143) to give the commission jurisdiction over a claimed reinstatement. The commission's power to suspend or dismiss derives solely from chapter 143 and is appellate only: under sections 143.051, 143.052, and 143.053, the department head suspends (up to 15 days, or indefinitely, which equals dismissal) and the commission acts on appeal (Civil Service Commission v. Carter; Arnold v. City of Sherman). An officer never appointed in accordance with chapter 143 has no civil service protection (section 143.003). Where no charter authority covers removal, the attorney general or a county or district attorney may oust the holder by quo warranto under chapter 66 of the Civil Practice and Remedies Code (sections 66.001, 66.002; Lewis v. Drake), a remedy other states have applied to police officers of any rank (Civil Serv. Comm'n v. Pekrul; Cooper v. Town of Belleville; State ex rel. DeMint v. City of Chillicothe).

Citations

• Local Gov't Code § 143.001 (purpose of municipal civil service)
• Local Gov't Code § 143.003 (definition of "police officer"; appointment in accordance with chapter 143)
• Local Gov't Code § 143.009 (commission may investigate and report on enforcement of chapter 143)
• Local Gov't Code §§ 143.051, 143.052, 143.053 (grounds, suspension by department head, and appeal procedure)
• Local Gov't Code § 143.088 (offense of bribery in hiring or resigning from a civil service position)
• Local Gov't Code §§ 143.021-.038 (subchapter B, appointment to beginning positions); §§ 143.101-.134 (subchapter G)
• Civ. Prac. & Rem. Code §§ 66.001, 66.002 (quo warranto)
• Sawyer v. City of San Antonio, 234 S.W.2d 398, 401 (Tex. 1950)
• Crouch v. Civil Serv. Comm'n, 459 S.W.2d 491, 494 (Tex. Civ. App.-Houston [14th Dist.] 1970, writ ref'd n.r.e.)
• Civil Service Commission v. Carter, 344 S.W.2d 225 (Tex. Civ. App.-Texarkana 1960, no writ)
• Arnold v. City of Sherman, 222 S.W.2d 314, 317 (Tex. Civ. App.-Dallas 1949), rev'd on other grounds, 226 S.W.2d 620 (Tex. 1950)
• Lewis v. Drake, 641 S.W.2d 392, 394 (Tex. App.-Dallas 1982, no writ)
• Doering v. Hinrichs, 43 N.E.2d 709 (N.Y. 1942)
• Andrews v. Lamb, 57 A.2d 365, 367 (N.J. 1948)
• Civil Serv. Comm'n v. Pekrul, 571 A.2d 715, 719 (Conn. Super. 1989)
• Cooper v. Town of Belleville, 118 A. 332, 333 (N.J. 1921)
• State ex rel. DeMint v. City of Chillicothe, 601 N.E.2d 612, 614 (Ohio App. 1991)
• Nebraska ex rel. Schaub v. City of Scottsbluff, 100 N.W.2d 202, 205 (Neb. 1960)

Common questions

Can a Texas police officer take back a resignation the city already accepted?
Under this opinion, no. The Attorney General concluded that once a police officer's resignation from a civil service position has been accepted and become effective, it cannot be withdrawn, even with the consent of the person who accepted it. A chief cannot "reinstate" the officer because that would be the same as withdrawing the resignation.

Could the officer still get hired back some other way?
Yes, but only as a new entry-level applicant. The opinion concluded that a voluntary, effective resignation is a complete break in service, so the officer must be treated like any beginning applicant and appointed (and later promoted) only through the regular methods in subchapter B of chapter 143.

Does the officer keep his old seniority and benefits if rehired?
No. The opinion treated the resignation as forfeiting accumulated seniority and benefits; reentry was the equivalent of a new appointment.

Does the civil service commission have a say in a disputed reinstatement?
Yes. The Attorney General concluded the commission has jurisdiction under section 143.009 to investigate the matter of a purported reinstatement, because it relates to enforcement of chapter 143.

If someone is holding a police job he was never properly appointed to, who can remove him?
The police chief can start the removal process, and the civil service commission has only appellate authority. The attorney general or a district or county attorney can bring a quo warranto suit under chapter 66 of the Civil Practice and Remedies Code, and a city charter may give the council or chief executive removal power.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0248
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0248.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, and a few heavily garbled passages are marked [. . .]; the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

September 3, 1993

Honorable Fred Hill
Chair
Committee on Urban Affairs
Texas House of Representatives
State Capitol Extension, Room 2.704
Austin, Texas 78768-2910

Opinion No. DM-248

Re: Whether, under chapter 143 of the Local Government Code, a police officer who has resigned his commission may rescind his resignation and be reinstated, and related questions (RQ-532)

Dear Representative Hill:

You ask whether this police officer may, under chapter 143 of the Local Government Code, rescind his resignation and be reinstated by the DeSoto chief of police. Chapter 143 contains the statutes that regulate municipal civil service systems for police departments and fire departments. There is no provision in chapter 143 that involves resignation by police officers and fire fighters, except for section 143.088, which defines an offense for giving or accepting a bribe in return for hiring or resigning from a civil service position. Police officers are public officers, so it is appropriate to consult the general rules regarding resignations of public officers. Sawyer v. City of San Antonio, 234 S.W.2d 398, 401 (Tex. 1950).

The stated purpose of chapter 143 "is 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." Local Gov't Code § 143.001. The general rule is that the benefit of permanent employment tenure applies only to persons who remain in or maintain their status as an employee who enjoys the benefits provided by the civil service act. 15A Am. Jur. 2d Civil Service § 58 (1976); see, e.g., Nebraska ex rel. Schaub v. City of Scottsbluff, 100 N.W.2d 202, 205 (Neb. 1960). It also is the general rule that once the resignation of a police officer has become effective by acceptance by an authorized power, the resignation cannot be withdrawn even with that power's consent. See Andrews v. Lamb, 57 A.2d 365, 367 (N.J. 1948); 67 C.J.S. Officers and Public Employees § 104 (1978); cf. Crouch v. Civil Serv. Comm'n, 459 S.W.2d 491, 494 (Tex. Civ. App.-Houston [14th Dist.] 1970, writ ref'd n.r.e.) (where police officer's resignation had become effective by its acceptance, without the consent of the officers designated to accept it with the approval of the civil service commission, the commission's action thereafter was without legal effect).

Your second question asks whether the DeSoto police chief may rehire the resigned police officer by any method other than the appointment methods valid for police officers established by the civil service act. A resignation from civil service constitutes a complete break in service and a loss of all seniority and benefits. Doering v. Hinrichs, 43 N.E.2d 709, 710 (N.Y. 1942); 15A Am. Jur. 2d Civil Service § 58; 3 E. McQuillin, Municipal Corporations § 12.122 (3d ed. rev. 1990). Reentry into the civil service [. . .] is the equivalent of a new appointment [. . .]. Doering v. Hinrichs, 43 N.E.2d at 711. We have found no statutory provision that would change these general rules; therefore, we conclude that the police officer must be treated as an applicant for a beginning position and may be appointed and eventually promoted only by the methods applicable to all applicants for beginning positions, as provided in subchapter B of chapter 143, Local Gov't Code §§ 143.021-.038, and, to the extent applicable, subchapter G of chapter 143, id. §§ 143.101-.134 (most of subchapter G applies to cities of 1.5 million persons or more).

Your third question asks whether the DeSoto Civil Service Commission has jurisdiction over the matter of the reinstatement of the subject officer. Section 143.009 authorizes the civil service commission to "investigate and report on all matters relating to the enforcement and effect of ... [chapter 143] and any rules adopted under it [and to] determine if the chapter and rules are being obeyed." The reinstatement of the subject police officer relates to the enforcement of chapter 143, so the commission does have jurisdiction of the matter.

The civil service commission's authority to suspend or dismiss a police officer derives solely from chapter 143. Section 143.052 of the Local Government Code provides that the head of a police department may suspend a police officer for a reasonable period of no more than 15 days, or indefinitely, for violation of a civil service rule, and states that an indefinite suspension is equivalent to a dismissal. Section 143.051 specifies the permissible grounds for the civil service commission to use in promulgating rules providing for removal or suspension of fire fighters and police officers, and states that no rule prescribing such cause is valid unless it involves one or more of the permissible grounds. Sections 143.052 and 143.053 establish the procedure for a suspended fire fighter or police officer to appeal a suspension to the civil service commission. Section 143.053, subsection (e), requires the commission in its decision of the appeal to state whether the fire fighter or police officer is permanently dismissed, temporarily suspended, or restored to his or her former position or status. Nowhere in chapter 143 is the civil service commission authorized to suspend or dismiss a police officer or fire fighter except on appeal from a suspension or dismissal by the department head. We conclude that the following language from Civil Service Commission v. Carter, 344 S.W.2d 225 (Tex. Civ. App.-Texarkana 1960, no writ) (per curiam), construing the statutory predecessor to chapter 143, is still correct as applied to the present law:

[O]nly the Chief or Head of the Police [Department] may suspend a policeman indefinitely, and only the civil service commission, as a board of appeals, may order a policeman discharged from the service after finding the truth of the allegation of the violation of a civil service rule specified in the department's Head [sic] or Chief's [. . .] charge.

Under chapter 143, only the police chief has the authority to initiate the process of removing a police officer from his or her position. See Arnold v. City of Sherman, 222 S.W.2d 314, 317 (Tex. Civ. App.-Dallas 1949), rev'd on other grounds, 226 S.W.2d 620 (Tex. 1950) (statutory predecessor of chapter 143 "supersedes all powers of the charter giving authority to a mayor, city council, or city manager to remove or suspend employees of the Civil Service departments"). The police chief's authority to dismiss the police officer [. . .] does not arise merely because none of the grounds for suspension or removal listed in section 143.051 apply to the subject officer. If the officer, whose resignation had become effective, was not reappointed to his position in substantial compliance with the requirements for appointment to a beginning position in chapter 143, then his reappointment was invalid. He has no right to office and no civil service protection under chapter 143. Id.; Local Gov't Code § 143.003 ("'Police officer' means a member of a police department or other peace officer who was appointed in substantial compliance with this chapter ....").

If there is no general termination authority in the charter that would be applicable to the officer, or if the duly authorized person who may remove him does not wish to exercise such authority, the commission may request that the attorney general or the county or district attorney bring about removal of the officer by way of a proceeding in quo warranto. See Civ. Prac. & Rem. Code § 66.002 (attorney general or county or district attorney may petition on behalf of the State for a writ of quo warranto); see also, e.g., Lewis v. Drake, 641 S.W.2d 392, 394 (Tex. App.-Dallas 1982, no writ) (quo warranto generally is the exclusive method to challenge the authority of a person to hold office). Quo warranto is available to remove "a person [who] usurps, intrudes into, or unlawfully holds or executes ... [an] office." Civ. Prac. & Rem. Code § 66.001. Although we have found no Texas case recognizing that such a proceeding is available for a police officer who unlawfully holds a civil service position, the authorities we found from other states hold or imply that police officers of any rank hold "an office" and therefore an occupant of such an office could be subject to removal by quo warranto. See Civil Serv. Comm'n v. Pekrul, 571 A.2d 715, 719 (Conn. Super. 1989) (police officers, without regard to rank, are public officers whose title to their office may be challenged by quo warranto proceeding); Cooper v. Town of Belleville, 118 A. 332, 333 (N.J. 1921) (per curiam) (action for certiorari challenging salary awarded to city police patrolman on the ground that he was neither de jure nor de facto patrolman was an improper attack on title to public office, which can be brought only by quo warranto); cf. State ex rel. DeMint v. City of Chillicothe, 601 N.E.2d 612, 614 (Ohio App. 1991) [. . .].

Your fourth question asks who has the authority to enforce chapter 143. We assume you refer to the specific context you have presented to us. As we said above, under chapter 143 of the Local Government Code the police chief has the authority to remove a person who unlawfully holds a police officer position and the civil service commission has only appellate jurisdiction to remove such an officer, while under chapter 66 of the Civil Practice and Remedies Code the attorney general or the district or county attorney is authorized to initiate a quo warranto proceeding to oust the officer. Another source of authority to discharge the subject officer exists in a city charter provision authorizing the city council or the city's chief executive to remove employees.

SUMMARY

Under chapter 143 of the Local Government Code, once a police officer's resignation from a civil service position becomes effective by proper acceptance, the resignation may not be withdrawn even with the consent of the person who accepted the resignation. Thus a police officer in such circumstances may not be reinstated to his position because such an action is tantamount to a withdrawal of the resignation.

Chapter 143 requires a police officer seeking reappointment after a voluntary and effective resignation from a police department to be treated as an applicant for a beginning position. Thus such an officer may be appointed and eventually promoted only by the methods applicable to all applicants for beginning positions, as provided in subchapter B of chapter 143, Local Gov't Code sections 143.021 through 143.038, and, to the extent applicable, subchapter G of chapter 143, Local Gov't Code §§ 143.101-.134.

The DeSoto Civil Service Commission has jurisdiction to investigate the matter of the purported reinstatement of an officer who has voluntarily and effectively resigned.

A police officer who was not appointed to his commission in accordance with chapter 143 is not entitled to civil service status. Under chapter 143 of the Local Government Code the police chief has the authority to remove a person who unlawfully holds a police officer position, and the civil service commission has only appellate jurisdiction to remove such a person, while under chapter 66 of the Civil Practice and Remedies Code the attorney general or the district or county attorney is authorized to initiate a quo warranto proceeding to oust the person. Another source of authority to discharge the subject officer perhaps exists in a city charter provision authorizing the city council or the city's chief executive to remove employees.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by James B. Pin[son]
Assistant Attorney General