When a Texas police officer returns from military leave, can the officers who moved up be returned to their old ranks?

TX AG Opinion GA-0325: Can backfill officers be returned to their old ranks when an officer comes back from military leave?

Plain-English summary

The City of League City runs its police and fire departments under the Chapter 143 civil service system, with police ranks of officer, sergeant, lieutenant, and captain. When a police lieutenant took military leave to serve in Afghanistan, the city had to keep the department staffed. The civil service commission promoted a sergeant from the eligibility list into the lieutenant's position, and that left a sergeant vacancy, which the police chief covered by moving a grade-one officer up to do the sergeant's job. The city, through a state senator, asked the Attorney General what happens to this chain when the lieutenant comes home and reclaims his rank: can the others be returned to where they started?

The answer was yes, but the reasoning differs for the two officers. For the sergeant who was promoted into the lieutenant's slot, section 143.072 of the Local Government Code is explicit. A person who fills the position of an officer on military leave holds it only until that officer returns and is "subject to replacement" at that point. When the lieutenant came back, that replacement could be "returned to a lower position." The statute softens the blow with a preferential right: the displaced replacement gets priority over the eligibility list for a later promotion to the same or a similar position, as long as the person stays physically and mentally fit.

For the grade-one officer one rung further down, section 143.072 says nothing directly, because his move up was only an indirect ripple effect of the lieutenant's leave. The key fact was that the police chief had not formally promoted him to sergeant. Instead, the chief used section 143.038, which lets a department head "designate a person from the next lower classification to temporarily fill a position in a higher classification," and which says that kind of temporary assignment "may not be construed as a promotion." Because it was never a promotion, the chief could simply declare the temporary assignment over when the lieutenant returned, and the grade-one officer would go back to his regular duties. The opinion limited itself to the military-leave context and did not opine more broadly about temporary assignments.

Currency note

This opinion was issued in 2005. 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.

Who this opinion affected (as of 2005)

Civil service commissions and municipalities: The opinion concluded that a person who fills the position of an officer on military leave under section 143.072 holds it only until the absent officer returns, at which point the replacement can be returned to a lower position. The commission was to follow the section 143.036 promotion procedures to fill the spot, but the resulting appointment was not permanent.

Police officers and fire fighters who moved up to backfill: The opinion treated the directly promoted replacement as subject to being returned to a lower rank on the officer's return, while keeping a preferential right to a later promotion to the same or a similar position. A grade-one officer who had only been temporarily assigned under section 143.038 simply resumed former duties when the assignment ended.

Department heads (police and fire chiefs): The opinion recognized the chief's authority under section 143.038 to designate a subordinate to temporarily fill a higher position, and to end that assignment as circumstances warranted, since it is not a civil service promotion.

Common questions

When an officer returns from military leave, do the people who filled in go back to their old ranks?
The opinion concluded they can. The direct replacement is subject to replacement and can be returned to a lower position under section 143.072, and a temporary fill-in below that can be returned by ending the temporary assignment.

Does the officer who got the promotion just lose it?
The opinion explained the replacement can be returned to a lower position, but section 143.072(f) gives that person a preferential right, with priority over the eligibility list, to a later promotion to the same or a similar position, if the person stays physically and mentally fit.

What about the officer one more step down the chain?
The opinion said that because the grade-one officer was only temporarily assigned to the sergeant's duties under section 143.038, not formally promoted, the chief could end the temporary assignment when the lieutenant returned, and that officer would resume his former duties.

Is a temporary assignment the same as a promotion?
No. The opinion pointed to section 143.038's text that a temporary designation to a higher classification "may not be construed as a promotion."

Where does the commission get its authority here?
The opinion noted that a civil service commission is an administrative agency with only the powers expressly granted by statute plus those necessarily implied, and that section 143.072 supplies the authority for filling and later vacating a military-leave position.

Background and statutory framework

Under a Chapter 143 civil service system, responsibility for personnel decisions is split among the city's governing body, the civil service commission, and the department heads. The governing body sets the classification and number of police and fire positions by ordinance (Tex. Loc. Gov't Code § 143.021(a)) and may vacate or abolish positions through a force-reduction ordinance (§ 143.085). The commission fills positions from an eligibility list compiled by examination (§§ 143.021(b)-(c), 143.036), with the department head appointing the highest-graded candidate unless it bypasses that person for a valid reason. A department head may also temporarily designate someone from the next lower classification to fill a higher position, which section 143.038 says is not a promotion.

Section 143.072 supplies the special rules for military leave (see also Tex. Att'y Gen. Op. No. GA-0174 (2004)). When an officer takes military leave, the commission fills the position in accordance with Chapter 143, but the person who fills it is subject to replacement when the officer returns; the returning officer is entitled to reinstatement to the position held when the leave was granted, given an honorable discharge, fitness, and timely application. The displaced replacement may be returned to a lower position but keeps a preferential right to a subsequent appointment or promotion (§ 143.072(f)). Because a civil service commission is an administrative agency with only its granted and necessarily implied powers (Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961)), and because the position of an officer on leave is not a true "vacancy," the appointment made to cover the leave could not be permanent.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. §§ 143.021(a), (b)-(c), 143.036, 143.036(a)-(h), 143.036(f), 143.038(b), (c), 143.085 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 143.072(a)-(h), (c), (d)(1)-(3), (f) (Vernon Supp. 2004-05)

Cases:

• Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961)

Other authorities:

• Tex. Att'y Gen. Op. No. GA-0174 (2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0325
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0325.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

May 18, 2005

The Honorable Troy Fraser
Chair, Committee on Business and Commerce
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0325

Re: Whether police officers in a civil service municipality who advance in rank because of an officer's military leave of absence may be demoted to their former positions once the officer returns from military service (RQ-0282-GA)

Dear Senator Fraser:

You ask, on behalf of the City of League City, Texas (the "City"), whether police officers in a civil service municipality who advance in rank because of an officer's military leave of absence may be demoted to their former positions once the officer returns from military service.[1]

You inform us that the City adopted civil service status and established a civil service commission (the "commission") for its fire and police departments. Request Letter, supra note 1, at 2. Positions in the City's police department consist of four grades: (1) officer; (2) sergeant; (3) lieutenant; and (4) captain. Id. A police department lieutenant received a military leave of absence to serve in Afghanistan. Id. The commission filled the lieutenant's position by promoting a sergeant from an existing list of eligible candidates. Id. That promotion left a vacancy in the sergeant's position, which the chief of police filled by designating a grade-one officer from an existing eligibility list. Id. You ask whether, when the lieutenant returns and assumes his former rank and position, as is the lieutenant's right under section 143.072(c) of the Local Government Code, the commission has the authority to return the other officers to their former positions as sergeant and grade-one officer. Id. at 2; see TEX. LOC. GOV'T CODE ANN. § 143.072(c) (Vernon Supp. 2004-05).

Under a chapter 143 civil service system, responsibility for employment decisions is allocated among the municipality's governing body, its civil service commission, and police and fire department heads. The municipal governing body is responsible for the classification and number of police and fire fighter positions, which it must establish by ordinance. TEX. LOC. GOV'T CODE ANN. § 143.021(a) (Vernon 1999). Additionally, the municipal governing body is authorized to vacate or abolish police or fire department positions by enacting a force reduction ordinance. Id. § 143.085.

Chapter 143 prescribes specific procedures for the municipality's civil service commission and department heads to fill civil service positions. Generally, positions or classifications are filled from an eligibility list compiled by the commission according to appropriate examination procedures. Id. §§ 143.021(b)-(c), .036(a)-(h). The department head must appoint the eligible promotion candidate with the highest grade on the eligibility list unless, for a "valid reason," the department head follows the procedures for bypassing that individual and appointing another from the list. Id. § 143.036(f). Additionally, the department head has authority to "designate a person from the next lower classification to temporarily fill a position in a higher classification." Id. § 143.038(b) (Vernon 1999). However, the temporary performance of such duties "may not be construed as a promotion." Id. § 143.038(c).

Section 143.072 of the code expressly authorizes certain advancements and reductions in rank to facilitate military leaves of absence. Id. § 143.072(a)-(h) (Vernon Supp. 2004-05); see generally Tex. Att'y Gen. Op. No. GA-0174 (2004) at 1. When an officer is granted military leave the commission must fill the officer's position "in accordance with" the civil service provisions of chapter 143. TEX. LOC. GOV'T CODE ANN. § 143.072(c) (Vernon Supp. 2004-05). However, the person filling the absent officer's position "is subject to replacement by the person who received the military leave at the time the person returns to active duty in the department." Id. A person returning from active military service "is entitled to be reinstated to the position that the person held in the department at the time the leave of absence was granted," provided the person receives an honorable discharge, remains physically and mentally fit, and timely applies for reinstatement. Id. § 143.072(d)(1)-(3). As to the replacement who is displaced by the return of an officer from military leave, the statute provides:

If the reinstatement of a fire fighter or police officer who received a military leave of absence causes that person's replacement to be returned to a lower position in grade or compensation, the replaced person has a preferential right to a subsequent appointment or promotion to the same or a similar position from which the person was demoted. This preferential right has priority over an eligibility list and is subject to the replaced person remaining physically and mentally fit to discharge the duties of that position.

Id. § 143.072(f).

Section 143.072 does not address the situation of a person in a lower classification whose advancement in rank is indirectly caused by a military leave of absence. You state that the commission filled the lieutenant's position by promoting a sergeant pursuant to section 143.036, and the chief of police appointed a grade-one officer to fill temporarily the position of sergeant under section 143.038. You suggest that under section 143.072 of the code, the lieutenant's return will effect an involuntary "demotion" of the officer promoted to lieutenant back to the rank of sergeant, which "will, in turn, require that the Officer previously promoted to the Sergeant position be 'demoted' to his [grade-one] Officer position." Request Letter, supra note 1, at 2. You ask whether section 143.072 implicitly grants the commission authority to return the officer serving as sergeant back to the rank of grade-one officer. Id.

A civil service commission is an administrative agency, which has only the powers expressly granted to it by statute, along with those necessarily implied from the authority conferred or duties imposed. Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961). Under section 143.072, when an officer is granted a military leave of absence, "the commission shall fill the person's position in the department in accordance with this chapter." TEX. LOC. GOV'T CODE ANN. § 143.072(c) (Vernon Supp. 2004-05). The commission's general authority to fill positions is found in the description of procedures for filling a vacant position by promotion in section 143.036. See id. § 143.036 (Vernon 1999). However, under section 143.072, the position of an officer on a military leave of absence is not a vacant position. Consequently, while it is appropriate for the commission to follow section 143.036 procedures for filling a position while an officer is on a military leave of absence under section 143.072, the resulting appointment cannot be considered a permanent appointment. When the officer on leave returns, the replacement officer may be "returned to a lower position." Id. § 143.072(f) (Vernon Supp. 2004-05).

Section 143.072 does not address the commission's authority to demote other subordinate officers whose advancement in rank is indirectly caused by a superior officer's military leave. Here, however, the grade-one officer was not officially promoted to sergeant but instead was assigned by the police chief to fill the sergeant position temporarily under section 143.038. See id. § 143.038 (Vernon 1999). As section 143.038 expressly states, a "department head may designate a person from the next lower classification to temporarily fill a position in a higher classification." See id. § 143.038(b). Because it is temporary, the designation "may not be construed as a promotion." See id. § 143.038(b). Consequently, when the lieutenant returns from the military leave of absence, the head of the police department may declare the temporary assignment at an end, and the grade-one officer simply resumes the officer's former duties. We do not opine about the authority of the commission and the department head to fill positions temporarily other than in the context of facilitating a military leave of absence under section 143.072.

SUMMARY

A police officer or fire fighter who fills the position of an officer on a military leave of absence under section 143.072 of the Local Government Code is subject to replacement upon the officer's return from leave. When a city civil service commission has filled a position under section 143.072 with a replacement officer, a department head may assign a subordinate officer to perform the duties of the replacement officer under section 143.038. Such an assignment is not a civil service promotion, and may be ended by the department head as circumstances warrant.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. McBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Troy Fraser, Chair, Senate Committee on Business and Commerce, Texas State Senate, to Honorable Greg Abbott, Texas Attorney General (Oct. 25, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].