Can a Texas city review or veto the rules its fire and police civil service commission adopts?

Plain-English summary

Chapter 143 of the Local Government Code lets a city whose voters adopt it set up a civil service commission for fire fighters and police officers, and it gives that commission authority to make the rules that run the system. San Antonio adopted chapter 143. State Senator Frank Madla asked the Attorney General two related questions: can the city review, adopt, or reject the rules the commission writes, and if not, can the commission give the city that review power by adopting a rule that says so? The Attorney General answered no to both.

The starting point is that home-rule cities like San Antonio have broad powers drawn from the Texas Constitution, limited only by their own charters, the Constitution, and state law. The Legislature can cut back a city's power by prohibiting an action or by preempting a field, but a court will read such a limit only where it appears with "unmistakable clarity." So the question became whether chapter 143 either bars a city from reviewing commission rules or preempts the city from legislating about these commissions. No provision expressly forbids city review. The preemption answer, though, came from how chapter 143 handles rulemaking.

Section 143.008 lays out the whole life cycle of a commission rule. A rule is considered adopted when the commission approves it by majority vote and reduces it to writing, and it becomes valid and binding once the commission mails copies to the elected civil service commissioner and the fire and police department heads, posts it for seven days at the central stations, and mails it to each branch station. The statute adds two telling details: newspaper publication is not required, and the city's governing body is not required to act on the rule. The Attorney General read that complete, self-contained process as the Legislature providing for commission rules to take effect without any city review or approval, which preempts the city from inserting itself. A city therefore cannot pass an ordinance that makes commission rules contingent on city review or approval.

The commission cannot create that power on the city's behalf either. A civil service commission has only the powers chapter 143 expressly gives it or that are necessarily implied, and an agency with rulemaking authority can adopt only rules consistent with its statute. Because chapter 143 makes a rule effective once the listed steps are done, a commission rule that added a further city-review step would impose a condition the statute does not, putting it beyond the commission's authority. The opinion was careful to add that cities are not entirely preempted from this area: chapter 143 itself assigns cities some rulemaking tasks, such as setting job classifications, and the Texas Supreme Court has held that civil service laws do not strip a city council of its residual authority, so a city may still regulate specific aspects of fire and police civil service by ordinance as long as it does not conflict with a statutory mandate.

Currency note

This opinion was issued in 1997. 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.

What the opinion meant at the time

For home-rule cities with a chapter 143 system: The opinion concluded a city could not review, adopt, or reject its civil service commission's rules, because chapter 143's self-contained rule-adoption process preempted city control over whether those rules take effect.

For fire and police civil service commissions: The opinion held a commission could not adopt a rule giving the city review authority, since chapter 143 fixes when a rule becomes binding and a commission rule adding a city-review condition would exceed the commission's statutory rulemaking power.

On a city's remaining role: The opinion noted cities keep the rulemaking duties chapter 143 assigns them (such as setting classifications) and their residual authority to regulate civil service matters by ordinance, provided the ordinances do not conflict with the statute.

Common questions

Can a San Antonio city council veto a rule its civil service commission passes?

Under this opinion, no. The Attorney General concluded chapter 143 sets out a complete process for commission rules to become effective without city review, which preempts the city from requiring its approval.

Could the commission simply vote to give the city review power?

No. The opinion explained the commission has only the powers chapter 143 grants it, and a rule adding a city-review requirement would impose a condition the statute does not, exceeding the commission's authority.

Does this mean a city has no say over police and fire civil service at all?

Not at all. The opinion pointed out that chapter 143 gives cities some rulemaking duties, like setting job classifications, and that a city keeps its residual authority to regulate civil service by ordinance, as long as it does not conflict with the statute.

What makes commission rules official under chapter 143?

The opinion described the section 143.008 steps: a majority vote reducing the rule to writing makes it adopted, and mailing copies to the elected commissioner and department heads, posting it for seven days at the central stations, and mailing it to each branch station makes it valid and binding.

Background and statutory framework

The request came from Senator Frank Madla, chair of the Senate Nominations Committee. Chapter 143 of the Local Government Code applies to a city of 10,000 or more with paid fire and police departments whose voters adopt it (section 143.002), and its purpose is to secure efficient departments staffed by capable personnel free from political influence with permanent tenure (section 143.001). The commission administers the chapter and holds rulemaking authority. The opinion framed the issue through home-rule principles: under Texas Constitution article XI, section 5 and Local Government Code section 51.072, a home-rule city has full self-government power limited only by its charter, the Constitution, and the Legislature, and a city ordinance cannot be inconsistent with general law. It cited Zachry v. City of San Antonio for the point that a home-rule city's powers must be incorporated into its charter to be exercised, and City of Sweetwater v. Geron and Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas for the rules on prohibition, preemption, and the requirement that any limit on city power appear with unmistakable clarity.

Applying that framework, the opinion found no express prohibition on city review but concluded chapter 143 preempted it. Section 143.008(d) and (e) make a rule adopted on a majority vote reduced to writing, and valid and binding on the prescribed mailing and posting, while expressly stating newspaper publication is not required and the municipality's governing body is not required to act. That complete process, the opinion reasoned, leaves no room for a city-approval condition. On the limits of preemption, it relied on City of Sweetwater, Glass v. Smith, and Dallas Merchant's for the principle that civil service laws do not divest a city council of residual authority, and on Jones v. City of Houston and Collier v. Firemen's & Policemen's Civil Service Commission for ordinances regulating specific civil service matters that do not conflict with the statute; section 143.021 is an example of a city rulemaking duty. On the commission's own limits, it cited Central Education Agency v. Upshur County Commissioners Court, City of Sherman v. Public Utility Commission, and Attorney General Opinion DM-338 (1995) for the rule that an agency has only its granted and necessarily implied powers, and Railroad Commission v. Lone Star Gas Co. and Railroad Commission v. Arco Oil & Gas Co. for the rule that an agency may not adopt rules imposing conditions beyond or inconsistent with its statute.

Citations

Statutes and constitutional provisions

• Tex. Const. art. XI, § 5
• Local Gov't Code §§ 51.072, 143.001, 143.002, 143.008, 143.021

Cases

• Zachry v. City of San Antonio, 296 S.W.2d 299 (Tex. Civ. App.-San Antonio 1957, writ granted), aff'd, 305 S.W.2d 558 (1957)
• City of Sweetwater v. Geron, 380 S.W.2d 550 (Tex. 1964)
• Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993)
• Glass v. Smith, 244 S.W.2d 645 (Tex. 1951)
• Jones v. City of Houston, 907 S.W.2d 871 (Tex. App.-Houston [1st Dist.] 1995, writ denied)
• Collier v. Firemen's & Policemen's Civil Service Comm'n, 817 S.W.2d 404 (Tex. App.-Fort Worth 1991, writ denied)
• Central Education Agency v. Upshur County Commissioners Court, 731 S.W.2d 559 (Tex. 1987)
• City of Sherman v. Public Util. Comm'n, 643 S.W.2d 681 (Tex. 1983)
• Railroad Comm'n v. Lone Star Gas Co., 844 S.W.2d 679 (Tex. 1992)
• Railroad Comm'n v. Arco Oil & Gas Co., 876 S.W.2d 473 (Tex. App.-Austin 1994, writ denied)

Attorney General opinions

• Tex. Att'y Gen. Op. No. DM-338 (1995)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0447
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1997/dm0447.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

July 29, 1997

The Honorable Frank Madla
Chair, Nominations Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. DM-447

Re: Authority of municipality to approve, reject, or review rules adopted by fire and police civil service commission (RQ-910)

Dear Senator Madla:

As you know, chapter 143 of the Local Government Code allows a city whose voters adopt the chapter to establish a fire fighters' and police officers' civil service commission. Civil service commissions are charged with administering chapter 143 in accordance with its purpose, and are given rule-making authority to do so. You ask whether the City of San Antonio, whose voters have adopted chapter 143, has the authority to review, adopt, or reject rules promulgated by the city's fire fighters' and police officers' civil service commission. You also ask whether review authority may be given to the city by rule adopted by the commission. We conclude that the city has no authority to adopt an ordinance making commission rules contingent upon city review, and that the commission may not adopt a rule providing for such review.

Home-rule cities like San Antonio derive their powers from the constitution. Their broad powers may be limited only by their own charters, the Texas Constitution, or laws enacted by the legislature. A city may not adopt a charter or ordinance "inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." This means that a city may not pass an ordinance regarding a particular matter if the legislature has prohibited it from doing so. Similarly, an ordinance that attempts to regulate a subject matter preempted by statute is unenforceable to the extent it conflicts with the statute. The mere fact that the legislature has enacted a law addressing the subject does not mean the subject matter is entirely preempted, however. If the legislature chooses to exercise its authority to limit a city's power by prohibition or preemption, the limitation must appear with "unmistakable clarity."

With respect to your questions, then, a home-rule city has the authority to review rules promulgated by a fire fighters' and police officers' civil service commission created pursuant to chapter 143 unless, with unmistakable clarity: (1) chapter 143 prohibits a city from reviewing commission rules; or (2) chapter 143 preempts a city from legislating with respect to fire fighters' and police officers' civil service commissions.

No statute expressly prohibits a city from reviewing civil service commission rules. Instead, rule-making authority is granted affirmatively to civil service commissions in various sections of chapter 143. The procedure for promulgating commission rules is set out in section 143.008, which provides in pertinent part:

(d) The commission shall publish each rule it adopts and each classification and seniority list for the fire and police departments. The rules and lists shall be made available on demand. A rule is considered to be adopted and sufficiently published if the commission adopts the rule by majority vote and causes the rule to be written, typewritten, or printed. Publication in a newspaper is not required and the governing body of the municipality is not required to act on the rule.

(e) A rule is not valid and binding on the commission until the commission:

(1) mails a copy of the rule to the commissioner, if the municipality has an elected commissioner, and to department heads of the fire and police departments;

(2) posts a copy of the rule for a seven-day period at a conspicuous place in the central fire and police stations; and

(3) mails a copy of the rule to each branch fire station.

According to 143.008, then, commission rules are deemed adopted when they are approved by a majority vote of the commission and written, typewritten or printed. They are deemed valid and binding when a copy is mailed to the elected civil service commissioner, mailed to the heads of the fire and police departments, posted conspicuously at the main fire and police stations for seven days, and mailed to each branch fire station.

In our opinion, the legislature clearly has provided for the adoption of commission rules without city review or approval, thereby preempting city action in this area. A city may not, therefore, adopt an ordinance requiring city review or approval of commission rules as a condition of the rules becoming effective.

We note that a city is not preempted completely from acting with respect to police officers and fire fighters within a civil service system. Chapter 143 grants rule-making authority to cities for certain purposes. Additionally, the Texas Supreme Court has held that legislative enactment of civil service laws does not divest a city council of its residual authority as the governing body of the city. Thus courts have affirmed city ordinances that regulate specific aspects of fire fighters' and police officers' civil service, provided the ordinances do not conflict with specific statutory mandates.

You also ask whether a civil service commission may adopt a rule granting review authority to the city. A civil service commission derives its powers from chapter 143. As such, it has only those powers expressly granted to it or necessarily implied from or incident to its express powers. When given rule-making authority, an administrative agency generally may adopt only such rules as are authorized by and consistent with its statutory authority. An agency rule may not impose additional burdens, conditions, or restrictions in excess of or inconsistent with relevant statutory provisions. Because commission rules are deemed adopted, valid, and binding upon satisfaction of the requirements set out in chapter 143, any rule imposing additional requirements would be inconsistent with the statute and thus beyond the scope of a commission's rule-making authority.

SUMMARY

A home-rule city that has established a fire fighters' and police officers' civil service commission pursuant to Local Government Code chapter 143 has no authority to review, adopt, or reject rules promulgated by the commission. A chapter 143 civil service commission may not adopt a rule providing for city review, adoption, or rejection of commission rules.

Yours very truly,

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Barbara Griffin
Assistant Attorney General

Footnotes

[The scanned source carries footnotes citing, among other authorities: Local Gov't Code §§ 143.002, 143.001(a)-(b), 143.008, 143.008(a), 143.008(c), 143.0251, 143.104, 143.021; Tex. Const. art. XI, § 5; Local Gov't Code § 51.072; Zachry v. City of San Antonio, 296 S.W.2d 299, 301 (Tex. Civ. App.-San Antonio 1957, writ granted), aff'd, 305 S.W.2d 558 (1957); City of Sweetwater v. Geron, 380 S.W.2d 550, 552-53 (Tex. 1964); Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993); Glass v. Smith, 244 S.W.2d 645 (Tex. 1951); Jones v. City of Houston, 907 S.W.2d 871 (Tex. App.-Houston [1st Dist.] 1995, writ denied); Collier v. Firemen's & Policemen's Civil Service Comm'n, 817 S.W.2d 404 (Tex. App.-Fort Worth 1991, writ denied); Central Education Agency v. Upshur County Commissioners Court, 731 S.W.2d 559, 561 (Tex. 1987); City of Sherman v. Public Utility Comm'n, 643 S.W.2d 681, 686 (Tex. 1983); Attorney General Opinion DM-338 (1995) at 10; Railroad Commission v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992); and Railroad Commission v. Arco Oil & Gas Co., 876 S.W.2d 473, 481-82 (Tex. App.-Austin 1994, writ denied).]