When a Texas city adopts the Fire and Police Employee Relations Act, do the civil-service limits on how many deputies the department head can appoint still apply?

TX AG Opinion GA-0771: Do the civil-service caps on deputy appointments survive a city's adoption of the FPERA?

Plain-English summary

State Representative Charlie Geren asked the Attorney General to reconsider part of a 2008 opinion, GA-0662, about how two municipal labor statutes fit together. The first is the Fire Fighter and Police Officer Civil Service Act, whose section 143.014 governs how a fire or police department head fills the ranks just below the chief. The second is the Fire and Police Employee Relations Act (the FPERA), which is chapter 174 of the Local Government Code and lets fire and police employees bargain collectively.

Section 143.014(b) lets the department head, with the governing body's approval, appoint people to the classification immediately below department head. Section 143.014(c) then caps how many such appointments there can be: in a police department, no more than the number serving in that classification on January 1, 1983, plus one; in a fire department, one, two, or three depending on the number of certified fire fighters. The last sentence of subsection (c) is the key: it says the subsection "does not apply to a municipality that has adopted The Fire and Police Employee Relations Act" unless the municipality specifically adopts that appointment procedure through collective bargaining.

GA-0662 read that sentence to mean a city's adoption of the FPERA removes the subsection (c) numerical limits (but not the subsection (b) appointment authority itself), unless the city reimposes them through a collective bargaining agreement. Having reexamined that conclusion and found no court decision since 2008 reading subsection (c) any other way, the Attorney General affirmed GA-0662 in relevant part: the caps drop out when the FPERA is adopted, and come back only if bargained for.

Currency note

This opinion was issued in 2010. 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.

Section 143.014 and chapter 174 of the Local Government Code may have been amended since 2010. Confirm the current statutory text and any later court rulings before relying on anything below.

Who this opinion affected (as of 2010)

Cities that had adopted the FPERA: The opinion told them that adopting chapter 174 took the section 143.014(c) numerical limits off the books for appointments to the classification just below department head, while leaving the department head's underlying appointment authority under subsection (b) intact.

Fire and police department heads: The opinion described that in a city operating under the FPERA, the subsection (c) ceiling (one to three appointees in a fire department, or the 1983 baseline plus one in a police department) did not constrain them unless a collective bargaining agreement put the procedure back in place.

Unions and bargaining teams: The opinion explained that the only route to reimposing the subsection (c) limits in an FPERA city was for the municipality to specifically adopt that appointment procedure through the collective bargaining process.

Common questions

Does adopting the FPERA get rid of the cap on deputy chiefs?
According to the opinion, yes. When a city subject to the civil-service act adopts the FPERA, subsection 143.014(c) and its numerical limits become inapplicable to that city.

Can the limits ever come back?
Yes. The opinion said the limits may be reimposed if the municipality specifically adopts that appointment procedure through the collective bargaining process.

Did the FPERA change the department head's power to make the appointments at all?
No. The opinion read GA-0662 to hold that adopting the FPERA does not change the department head's authority to make appointments under subsection (b); it removes only the numerical limits in subsection (c).

Was this a new ruling?
No. It was a reconsideration. The Attorney General reexamined GA-0662, found no case law construing subsection (c) differently, and affirmed the earlier opinion in relevant part.

Background and statutory framework

Section 143.014 of the Local Government Code, part of the Fire Fighter and Police Officer Civil Service Act, allows a fire or police department head, if approved by the governing body, to appoint persons occupying authorized positions in the classification immediately below department head (subsection (b)), and limits the number of such appointments (subsection (c)). Subsection (c) provides that it "does not apply to a municipality that has adopted The Fire and Police Employee Relations Act [chapter 174 of the Local Government Code] unless the municipality specifically adopts the appointment procedure prescribed by this subsection through the collective bargaining process" (Tex. Loc. Gov't Code Ann. § 143.014(b)-(c) (Vernon 2008)).

GA-0662 (2008) construed the term "subsection" in that sentence in accordance with the Code Construction Act and its plain meaning, concluding that adopting the FPERA removes the subsection (c) limits but not the subsection (b) appointment authority, absent a collective bargaining agreement providing otherwise. On reconsideration at Representative Geren's request, the Attorney General reexamined GA-0662, found no intervening case law construing subsection (c) otherwise, and concluded that GA-0662 correctly states the law.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 143.014(b)-(c) (Vernon 2008)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0771
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0771.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

April 20, 2010

The Honorable Charlie Geren
Chair, Committee on House Administration
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0771

Re: Application of Local Government Code section 143.014(c) to municipalities that have adopted chapter 174 of the Local Government Code, the Fire and Police Employee Relations Act; reconsideration of Attorney General Opinion GA-0662 (2008) (RQ-0840-GA)

Dear Representative Geren:

You ask about the "[a]pplication of Local Government Code section 143.014(c) to municipalities that have adopted Local Government Code [c]hapter 174, the Fire and Police Employee Relations Act" (the "FPERA").[1] You request that we reconsider part of a 2008 opinion of this office that construed Local Government Code subsection 143.014(c), a provision of the Fire Fighter and Police Officer Civil Service Act. See Request Letter (requesting reconsideration of Attorney General Opinion GA-0662).

Section 143.014 provides, in relevant part, that

(b) If approved by the governing body of the municipality by resolution or ordinance, the head of a fire or police department in the municipality in which at least four classifications exist below the classification of department head may appoint each person occupying an authorized position in the classification immediately below that of department head, as prescribed by this section. The classification immediately below that of department head may include a person who has a different title but has the same pay grade.

(c) In a police department, the total number of persons appointed to the classification immediately below that of department head may not exceed the total number of persons, plus one, serving in that classification on January 1, 1983. In a fire department in a municipality having fewer than 300 certified fire fighters, the department head may appoint not more than one person to the classification immediately below that of department head. If a municipality has 300 to 600 certified fire fighters, the department head may appoint two persons to the classification. If a municipality has more than 600 certified fire fighters, the department head may appoint three persons to the classification. This subsection does not apply to a municipality that has adopted The Fire and Police Employee Relations Act [chapter 174 of the Local Government Code] unless the municipality specifically adopts the appointment procedure prescribed by this subsection through the collective bargaining process.

TEX. LOC. GOV'T CODE ANN. § 143.014(b)-(c) (Vernon 2008) (emphasis added).

Attorney General Opinion GA-0662 (the "Opinion") concluded that a city's adoption of the FPERA does not change the authority of a fire chief to appoint persons to the classification immediately below his own classification under Local Government Code subsection 143.014(b), but removes the numerical limits established by subsection 143.014(c), unless the city adopts a collective bargaining agreement providing otherwise. Tex. Att'y Gen. Op. No. GA-0662 (2008) at 3. The Opinion, focusing on the express language of subsection 143.014(c), construed the term "subsection" in accordance with the Code Construction Act and the plain and common meaning of that term. Id.

Having reexamined Attorney General Opinion GA-0662 and finding no case law since the issuance of the Opinion that construes subsection 143.014(c) otherwise, we conclude that it correctly states the law.

SUMMARY

When a municipality that is subject to the Fire Fighter and Police Officer Civil Service Act adopts Local Government Code chapter 174, the Fire and Police Employee Relations Act, subsection 143.014(c), limiting the number of deputies who may be appointed, becomes inapplicable to the municipality. These limits may be reimposed if the municipality specifically adopts them through the collective bargaining process. Attorney General Opinion GA-0662 (2008) is affirmed in relevant part.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

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).]