Can a Texas civil service commission give job applicants extra exam points for living in the city?

TX AG Opinion GA-0586: Can a civil service commission award residency points on the entrance exam?

Plain-English summary

Texas cities that adopt chapter 143 of the Local Government Code run their fire and police hiring through a civil service commission, which gives a competitive entrance examination. Section 143.025 sets the rules for that exam. The Chair of the Texas House Committee on Urban Affairs asked the Attorney General whether a commission can adopt a local rule that adds points to an applicant's score based on living in the city. Port Arthur's commission had done exactly that: its Rule 9.20(B) gave five extra points to an applicant who could prove three months of bona fide residency in the city before the exam date.

The Attorney General concluded the commission may not do this. Section 143.025(i) spells out precisely how the "grade to be placed on the eligibility list" is computed. It has two parts: the applicant's grade on the written examination, which "is determined entirely by the correctness of the applicant's answers to the questions," plus the five points for honorable military service under subsection (f). By its plain language, the statute does not allow any additional component, including residency points.

The opinion also explained why a commission cannot simply add a bonus the way the Legislature did for veterans. A civil service commission is an administrative agency that has only the powers expressly granted to it by statute, together with those necessarily implied. It is not a home-rule city with broad authority, and it is not the Legislature. Awarding residency points would be exercising a power the statute does not give it. Because section 143.025(i) already foreclosed the rule, the opinion did not need to decide whether section 150.021(a), which bars a municipality from requiring residency as a condition of employment, separately precluded it.

Currency note

This opinion was issued in 2007. 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.

Local Government Code sections 143.025, 143.006, and 150.021, and the case law cited here, may have changed since 2007. Confirm the current statutes before relying on this analysis.

Who this opinion affected (as of 2007)

Local civil service commissions: The opinion told them they could not adopt a rule adding residency points to an applicant's eligibility-list grade. Section 143.025(i) fixed the formula (written-exam grade plus military-service points), and a commission has only the powers the statute expressly grants.

Fire and police applicants: The opinion meant that under the statute, an applicant's score on the eligibility list turned on exam performance and any military-service points, not on whether the applicant lived in the city.

Cities operating under chapter 143: The opinion clarified that the Legislature, not the local commission, controls what counts toward the entrance-exam score, and that a city's commission cannot expand the scoring components by local rule.

Common questions

Could the commission give five points for city residency, like the five points for military service?
No. The opinion held that the military-service points come from subsection (f), which the Legislature enacted, and the commission is not the Legislature. Section 143.025(i) does not authorize a residency component, so the commission could not add one.

How is the entrance-exam score supposed to be calculated?
Under section 143.025(i), the eligibility-list grade is the applicant's written-exam grade (based entirely on the correctness of the answers) plus any military-service points under subsection (f). The minimum passing grade is 70 percent.

Did the AG decide the residency rule also violated the ban on residency as a condition of employment?
No. Because section 143.025(i) already precluded the rule, the opinion expressly declined to address whether section 150.021(a) also barred it.

Background and statutory framework

Section 143.025 of the Local Government Code governs civil service examinations for municipal fire fighters and police officers. A commission must provide open, competitive, and free entrance examinations for eligibility lists (Tex. Loc. Gov't Code Ann. § 143.025(a)). Five points are added for an applicant who served in the armed forces, received an honorable discharge, and passed the exam (§ 143.025(f)). Subsection (i) gives the scoring formula: the eligibility-list grade equals the written-exam grade (determined entirely by the correctness of the answers, minimum passing grade 70 percent) plus any subsection (f) points (§ 143.025(i)).

When a municipality adopts chapter 143, a Fire Fighters' and Police Officers' Civil Service Commission is established in the municipality (§ 143.006(a)). The opinion applied the rule that a statute's unambiguous language controls (City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006)). It distinguished preemption analysis, which applies to home-rule municipalities (In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2003) (quoting Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993))), because a commission is an administrative agency with only expressly granted and necessarily implied powers (Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961); Glass v. State, 244 S.W.2d 645, 652 (Tex. 1952)). Section 150.021(a) separately provides that a municipality may not require residency within the municipal limits as a condition of employment (§ 150.021(a)), but the opinion did not reach that provision.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 143.025(a), (f), (i) (Vernon Supp. 2007)
• Tex. Loc. Gov't Code Ann. § 143.006(a) (Vernon Supp. 2007)
• Tex. Loc. Gov't Code Ann. § 150.021(a) (Vernon 1999)

Cases:

• City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006)
• In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2003)
• Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993)
• Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961)
• Glass v. State, 244 S.W.2d 645, 652 (Tex. 1952)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0586
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0586.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

December 20, 2007

The Honorable Kevin Bailey
Chair, Committee on Urban Affairs
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0586

Re: Whether a local civil service commission may adopt a rule that awards additional points to applicants on the basis of residency within the municipality (RQ-0599-GA)

Dear Representative Bailey:

You ask whether a local civil service commission may adopt a rule that awards additional points to applicants on the basis of residency within the municipality.[1]

Section 143.025 of the Local Government Code addresses the subject of civil service examinations for municipal fire fighters and police officers. A local civil service commission must "provide for open, competitive, and free entrance examinations to provide eligibility lists for beginning positions in the fire and police departments." TEX. LOC. GOV'T CODE ANN. § 143.025(a) (Vernon Supp. 2007). Another portion of the statute directs that "[a]n additional five points shall be added to the examination grade of an applicant who served in the United States armed forces, received an honorable discharge, and made a passing grade on the examination." Id. § 143.025(f). Subsection (i) then provides the formula for determining an applicant's score on the examination:

(i) The grade to be placed on the eligibility list for each applicant shall be computed by adding an applicant's points under Subsection (f), if any, to the applicant's grade on the written examination. Each applicant's grade on the written examination is based on a maximum grade of 100 percent and is determined entirely by the correctness of the applicant's answers to the questions. The minimum passing grade on the examination is 70 percent. An applicant must pass the examination to be placed on an eligibility list.

Id. § 143.025(i) (emphasis added). You indicate that the civil service commission of the City of Port Arthur (the "Commission") has adopted Rule 9.20(B), which states:

An applicant who can prove that they [sic] have been a bona fide resident of the City of Port Arthur, for three (3) months prior to the examination date and passes the examination shall receive an additional five (5) points. Said points shall be added to the passing grade of the applicant.

Request Letter, supra note 1, at 1. You question whether the Commission may "adopt local rules regarding entrance examination grades that allow[] final scores to be determined in a manner other than that specified in section 143.025." Id. at 2.

When construing a statute, one's primary objective is to ascertain and give effect to the Legislature's intent. City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006). To determine that intent, we look to the plain and common meaning of the words of a particular statute. Id. When the statutory language is unambiguous, we must construe the statute as written. Id.

In the situation you present, the Legislature has specified the precise means of calculating an applicant's score on a civil service examination. Section 143.025(i) provides that the formula for computing the "grade to be placed on the eligibility list for each applicant" requires the addition of two components. The first component is the "applicant's grade on the written examination." TEX. LOC. GOV'T CODE ANN. § 143.025(i) (Vernon Supp. 2007). And the grade on the written examination "is determined entirely by the correctness of the applicant's answers to the questions." Id. The second component of the "grade to be placed on the eligibility list" is the "applicant's points under Subsection (f), if any," i.e., the applicant's additional points for military service. Id. By its plain language, section 143.025(i) does not authorize any additional component to the "grade to be placed on the eligibility list."

The attorneys for the City of Port Arthur and for the Commission contend that the question is whether the Commission's rule is preempted by any portion of section 143.025[2] or by section 150.021(a) of the Local Government Code.[3] Preemption is a principle that applies to home-rule municipalities. See In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2003) (quoting Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993)). A local civil service commission, however, is not vested with the expansive authority of a home-rule city. When a municipality adopts chapter 143 of the Local Government Code, a Fire Fighters' and Police Officers' Civil Service Commission "is established in the municipality." TEX. LOC. GOV'T CODE ANN. § 143.006(a) (Vernon Supp. 2007). In Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961), the Texas Supreme Court considered the status of the civil service commission of the City of San Antonio. The court declared that "[a]n administrative agency such as the Civil Service Commission has only such powers as are expressly granted to it by statute together with those necessarily implied from the authority conferred or duties imposed." Id. at 160. The Commission wishes to adopt a rule that permits the award of additional points to an applicant's "grade to be placed on the eligibility list," just as the Legislature has awarded an additional five points for military service. But the Commission is not the Legislature. Rather, its status is that of an administrative agency with only limited powers expressly provided by law. See Glass v. State, 244 S.W.2d 645, 652 (Tex. 1952) ("Civil Service Commissions are usually regarded as administrative agencies exercising only purely administrative powers.").

We conclude that section 143.025(i) of the Local Government Code precludes any attempt by the Commission to award additional points to a civil service applicant on the basis of residence within the City of Port Arthur. As a result, we need not address whether the local rule is also precluded by section 150.021(a) of the Local Government Code.

SUMMARY

A local civil service commission may not adopt a rule that awards additional points to an applicant on the basis of residency within the municipality.

Yours very truly,

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Kevin Bailey, Chair, Urban Affairs Committee, Texas House of Representatives, to Honorable Greg Abbott, Attorney General of Texas (June 26, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] See Brief from The Parker Law Firm, on behalf of the City of Port Arthur and the Port Arthur Civil Service Commission, to Honorable Greg Abbott, Attorney General of Texas, at 2 (Aug. 10, 2007).

[3] Section 150.021 declares, in part, that "[a] municipality may not require residency within the municipal limits as a condition of employment with the municipality." TEX. LOC. GOV'T CODE ANN. § 150.021(a) (Vernon 1999).