Does the age-45 cap on new Texas police officers apply to an officer who resigned and is reappointed?

TX AG Opinion GA-0741: Does the age-45 cap on new officers apply to a reappointed officer?

Plain-English summary

Senator John Whitmire asked about a wrinkle in the Fire Fighter and Police Officer Civil Service Act (chapter 143 of the Local Government Code). The setup: a man served eight years with the Houston Police Department, voluntarily resigned to join the Navy, and, now 48 and leaving military service, wanted to be reappointed. Section 143.1251 lets a civil service commission adopt rules allowing an officer who voluntarily resigns to be reappointed without taking another departmental entrance exam. But section 143.105 (through section 143.023) bars certifying a person 45 or older for a "beginning position" in a police department in the largest municipalities. The question was whether the age-45 bar applies to a reappointment under 143.1251.

The opinion's answer was short and careful: it found no case law and no statutory provision saying that an officer who voluntarily resigns and is then reappointed under section 143.1251 is subject to the section 143.105 age-45 prohibition on certifying someone for a beginning position. The opinion expressly did not address whether any federal or state law (for example, military reemployment protections) might separately apply to the officer's situation, and it noted that Houston operates under a meet and confer agreement that did not address the question.

Currency note

This opinion was issued in 2009. 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 has been amended over time. Confirm the current text of sections 143.105, 143.023, and 143.1251 before relying on this analysis.

Who this opinion affected (as of 2009)

Civil service commissions and large-city police departments: The opinion described no statutory or case-law basis for applying the section 143.105 age-45 certification bar to an officer reappointed under section 143.1251 after a voluntary resignation.

Former officers seeking reappointment: The opinion explained that, on the facts presented, it found nothing subjecting such a reappointment to the age-45 limit, while leaving untouched any other federal or state law that might apply.

Common questions

Does the age-45 limit block an older former officer from being reappointed?
According to the opinion, there is no case law or statute making a section 143.1251 reappointment subject to the section 143.105 age-45 bar on certifying someone for a beginning position.

Is a reappointment the same as a "beginning position"?
The opinion did not equate the two. It found nothing in chapter 143 or the case law applying the beginning-position age limit to a reappointment under section 143.1251.

Did the opinion address the officer's military service?
No. The opinion expressly did not address any federal or state law, such as military reemployment protections, that might apply to the situation.

Background and statutory framework

Chapter 143, the Fire Fighter and Police Officer Civil Service Act, governs (Tex. Loc. Gov't Code Ann. §§ 143.001-.363 (Vernon 2008 & Supp. 2009); City of Houston v. Clark, 197 S.W.3d 314, 315 (Tex. 2006)). Section 143.1251 authorizes a civil service commission to adopt rules letting an officer who voluntarily resigns be reappointed without another entrance exam (id. § 143.1251 (Vernon 2008); see id. § 143.021(c)). Section 143.105, through section 143.023(c), bars certifying a person 45 or older for a beginning position in a police department, and applies to the largest municipalities (id. §§ 143.023(c), (g), 143.105 (Vernon Supp. 2009)). The opinion found no authority subjecting a 143.1251 reappointment to that bar. It noted chapter 143's military-leave reinstatement provision (id. § 143.072 (Vernon Supp. 2009)), the meet and confer provisions and their preemptive effect (id. §§ 143.101, 143.351-.363, 143.361(b) (Vernon 2008)), and that it did not reach potentially relevant federal or state reemployment law (38 U.S.C. §§ 4301-4334 (2006); Tex. Gov't Code Ann. §§ 613.001-.023 (Vernon 2004)).

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. §§ 143.001-.363, 143.021(c), 143.101, 143.351-.363, 143.361(b), 143.1251 (Vernon 2008); §§ 143.023(c), (g), 143.072, 143.105 (Vernon Supp. 2009)
• 38 U.S.C. §§ 4301-4334 (2006)
• Tex. Gov't Code Ann. §§ 613.001-.023 (Vernon 2004)

Cases:

• City of Houston v. Clark, 197 S.W.3d 314 (Tex. 2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0741
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0741.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

October 13, 2009

The Honorable John Whitmire
Chair, Committee on Criminal Justice
Texas State Senate
Post Office Box 12068
Austin, Texas 78711

Opinion No. GA-0741

Re: Whether the section 143.105, Local Government Code, prohibition against certifying a person 45 years or older for a beginning position in a police department applies to the reappointment of a police officer under section 143.1251, Local Government Code (RQ-0797-GA)

Dear Senator Whitmire:

Your question relates to chapter 143 of the Local Government Code, commonly known as the Fire Fighter and Police Officer Civil Service Act (the "Act"). TEX. LOC. GOV'T CODE ANN. §§ 143.001-.363 (Vernon 2008 & Supp. 2009); City of Houston v. Clark, 197 S.W.3d 314, 315 (Tex. 2006) (referring to the common name of the Act). Section 143.1251 of the Act authorizes a fire fighters' and police officers' civil service commission (a "commission") to "adopt rules to allow a police officer who voluntarily resigns from [a police] department to be reappointed to the department without taking another departmental entrance examination." TEX. LOC. GOV'T CODE ANN. § 143.1251 (Vernon 2008); see also id. § 143.021(c) ("Except as provided by Section[] ... 143.1251, ... an existing position or classification or a position or classification created in the future either by name or by increase in salary may be filled only from an eligibility list that results from an examination held in accordance with this chapter."). Section 143.105 of the Act, through its incorporation of the eligibility requirements in section 143.023(c), prohibits "[a] person who is 45 years of age or older" from being "certified for a beginning position in a police department." Id. §§ 143.023(c), .105 (Vernon Supp. 2009) (providing that the eligibility requirements prescribed by section 143.023 apply to a beginning position); see also id. § 143.023(g) ("In addition to meeting the requirements prescribed by this section, an applicant for a beginning position in a police department in a municipality with a population of 1.5 million or more must meet the requirements prescribed by Section 143.105."). You ask whether the reappointment of a police officer under Local Government Code section 143.1251 is subject to the prohibition against certifying a person forty-five years or older for a beginning position in a police department.[1]

As factual background, you relate that an individual served eight years with the Houston Police Department (the "Department") but voluntarily resigned[2] to join the United States Navy. Request Letter. The individual, who is currently forty-eight years old, is now leaving military service and is seeking reappointment to the Department.[3] See id. You explain that the City of Houston (the "City"), which is governed by chapter 143, has adopted a meet and confer agreement and nothing in that agreement addresses your question.[4] See id.; see generally TEX. LOC. GOV'T CODE ANN. §§ 143.351-.363 (Vernon 2008) (addressing meet and confer agreements in municipalities with population of 1.5 million or more).[5] We accept for purposes of this opinion that these facts are accurate.

We find no case law or statutory provision that says that a police officer who voluntarily resigns from a police department and is subsequently reappointed to the department pursuant to Local Government Code section 143.1251 is subject to the section 143.105 prohibition against certifying a person forty-five years or older for a beginning position in the police department.

SUMMARY

We find no case law or statutory provision that says that a police officer who voluntarily resigns from a police department and is subsequently reappointed to the department pursuant to Local Government Code section 143.1251 is subject to the section 143.105 prohibition against certifying a person forty-five years or older for a beginning position in the police department.

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

[Footnote 1: Request Letter (available at http://www.texasattorneygeneral.gov). Your written request asks whether the "45 year old limitation in 143.023 appl[ies] to a re-appointment as described in 143.0251." Id. However, we clarified with your office that your question actually pertains to the limitation in section 143.105 and a reappointment under section 143.1251. Telephone Conversation with Lara Wendler (June 18, 2009).]

[Footnote 2: Chapter 143 provides for the possible reinstatement of officers who receive a military leave of absence. See TEX. LOC. GOV'T CODE ANN. § 143.072 (Vernon Supp. 2009). However, we do not understand the officer at issue to have received a military leave of absence.]

[Footnote 3: You do not ask about, and this opinion does not address, any federal or state law that may preempt the relevant portions of the Act under the particular facts that give rise to your question. See, e.g., 38 U.S.C. §§ 4301-4334 (2006) (regarding reemployment rights after uniformed services employment); TEX. GOV'T CODE ANN. §§ 613.001-.023 (Vernon 2004) (regarding reemployment after military service).]

[Footnote 4: The City may be subject to many of the general provisions of the Act as well as those provisions that apply to a municipality with a population of 1.5 million or more. See UNITED STATES CENSUS BUREAU, U.S. DEP'T OF COMMERCE, 2000 CENSUS OF POPULATION, STATE & COUNTY QUICKFACTS (City of Houston population: 1,953,631) (last visited Oct. 9, 2009); see also, e.g., TEX. LOC. GOV'T CODE ANN. § 143.101 (Vernon 2008) (providing that subchapter G applies primarily to a municipality with a population of 1.5 million or more and that subchapters A-F apply to such municipalities, except as otherwise provided).]

[Footnote 5: The meet and confer agreement is relevant to this analysis because section 143.361(b) provides that "[a] written agreement ratified under this subchapter preempts all contrary ... legislation." TEX. LOC. GOV'T CODE ANN. § 143.361(b) (Vernon 2008).]