Who appoints members of a Texas fire and police civil service commission when a term expires?

Plain-English summary

The chair of the Senate Committee on Redistricting carried forward a set of questions his predecessor had asked about section 143.006 of the Local Government Code, the statute governing the Fire Fighters' and Police Officers' Civil Service Commission. That statute says the three commissioners are appointed by the municipality's chief executive and confirmed by the governing body, serve staggered three-year terms, and that if "a vacancy occurs" the chief executive appoints someone to serve the remainder of the unexpired term.

The opinion settled two points. First, the end of a term is not a "vacancy." A vacancy happens during a term, from death, resignation, or the like, not when a term runs its full course. Reading it otherwise would make the statute's "remainder of the unexpired term" language meaningless. Second, the power to nominate commission members rests with the chief executive, not the city council. The council's role is to confirm, and it has no independent authority to appoint members on its own. The opinion noted that a City of South Houston ordinance purporting to let the council appoint when the mayor fails to act could not stand, because a municipal ordinance is subordinate to a state statute, and South Houston, as a Type A general-law city, has even less independent authority than a home-rule city.

The last two questions concerned the statute's criminal provision, which makes it a misdemeanor for a chief executive or municipal official to knowingly or intentionally refuse to implement the chapter or obstruct its enforcement. The opinion declined to answer how many confirmation refusals would amount to a violation, noting the statute sets no limit, that confirmation appears discretionary rather than ministerial, and that deciding what counts as a knowing refusal would require fact-finding outside the opinion process.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General 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 for those who asked

Municipal chief executives and city councils (what the opinion held for them): The opinion held that the chief executive nominates civil service commissioners and the council confirms, that the council cannot appoint on its own, and that the vacancy-fill provision applies only to vacancies arising during a term, not to terms that simply expire.

General-law and home-rule cities with conflicting ordinances (what the opinion held for them): The opinion held that a city ordinance, even one adopted by a home-rule city, is subordinate to section 143.006 and may not contravene the statutory appointment scheme.

Common questions

Does a civil service commissioner's seat become "vacant" when the term ends?
Under this opinion, no. The opinion read "vacancy" in section 143.006 to mean an opening that arises during a term, such as from death or resignation, not the ordinary expiration of a term.

Can a city council appoint commissioners if the mayor will not?
The opinion concluded no. It held the council's power is to confirm the chief executive's nominee, and the council has no independent power to appoint, so an ordinance giving it that power could not override the statute.

How many times can a council refuse to confirm before it breaks the law?
The opinion declined to answer. It noted the statute sets no limit and that whether a refusal is a knowing or intentional violation of the criminal provision is a fact question outside the opinion process.

Background and statutory framework

Section 143.006(b) of the Local Government Code provides that the Fire Fighters' and Police Officers' Civil Service Commission consists of three members appointed by the municipality's chief executive and confirmed by the governing body, serving staggered three-year terms, with the chief executive filling any vacancy for the remainder of the unexpired term. See Tex. Loc. Gov't Code Ann. § 143.006 (Vernon 1999). The opinion read the statute with the presumption that the entire statute is intended to be effective, citing Government Code section 311.021(2), and consulted the pre-codification source law (section 3 of article 1269m, Revised Civil Statutes, from the Act of May 15, 1947) which spoke of vacancies "caused by death, resignation, or otherwise." It relied on article XI, section 5 of the Texas Constitution for the rule that a city charter or ordinance may not conflict with general law, and on Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991), for the definition of a ministerial act, concluding that confirmation is discretionary.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XI, § 5
• Tex. Loc. Gov't Code Ann. § 143.006 (Vernon 1999)
• Tex. Gov't Code Ann. §§ 311.021(2), 311.023 (Vernon 1998)

Cases:

• Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278 (Tex. 1999)
• Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0347
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0347.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

February 22, 2001

The Honorable Jeff Wentworth
Chair, Committee on Redistricting
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. JC-0347

Re: Whether section 143.006(b) of the Texas Local Government Code authorizes a municipality's chief executive officer to appoint a person to fill the position of a member of the Fire Fighters' and Police Officers' Civil Service Commission whose term has expired, and related questions (RQ-0294-JC)

Dear Senator Wentworth:

Your predecessor as chair of the Committee on Redistricting, Senator Gallegos, asked this office a series of questions concerning section 143.006 of the Local Government Code, especially with respect to the issue of appointments to the Fire Fighters' and Police Officers' Civil Service Commission. We conclude that the end of a term is not a "vacancy" for the purposes of that statute, and further that the power to nominate a member to such a commission is given to the chief executive of the municipality, not to its governing body. Questions concerning the criminal provisions of the statute would require considerations of facts and circumstances of a sort in which this office does not engage in the opinion process, and accordingly we cannot answer them.

Section 143.006(b), which is central to your predecessor's concern, reads as follows:

The commission consists of three members appointed by the municipality's chief executive and confirmed by the governing body of the municipality. Members serve staggered three-year terms with the term of one member expiring each year. If a vacancy occurs or if an appointee fails to qualify within ten days after the date of appointment, the chief executive shall appoint a person to serve for the remainder of the unexpired term in the same manner as the original appointment.

TEX. LOC. GOV'T CODE ANN. § 143.006(b) (Vernon 1999) (emphasis added).

Your predecessor asked first whether the expiration of a term is "considered a vacancy in the sense expressed by this section."(1) In our view it is not. A "vacancy" in this context clearly occurs during, and not at the end of, a term of office. Otherwise the provision that "the chief executive shall appoint a person to serve for the remainder of the unexpired term" would be meaningless. See TEX. GOV'T CODE ANN. § 311.021(2) (Vernon 1998) (presumption that entire statute is intended to be effective).

Section 3 of article 1269m, Revised Civil Statutes, the pre-codification source law, is to the same effect. "Any such vacancies in said Commission, caused by death, resignation, or otherwise, or by failure of any appointee to qualify within ten (10) days after appointment, shall be filled in the manner hereinafter specified . . . ." See Act of May 15, 1947, 50th Leg., R.S., ch. 325, 1947 Tex. Gen. Laws 550, 551. This language makes it even more clear that the concern of the legislature was with filling vacancies within a term, such as might be caused by "death, resignation, or otherwise."(2)

The second question asked is whether, if "vacancy" includes the expiration of a term, "the appointment of another member to the commission need[s] confirmation by the governing body." Request Letter, supra note 1, at 1. As we noted above, "vacancy" is not to be so construed. Accordingly, we do not answer this question.

Your predecessor next questions whether the governing body of the municipality, by itself, may appoint commission members. While the statute gives the power of confirmation to the governing body, with equal clarity it gives the power to nominate to the chief executive. Nothing in the statutory language suggests that the governing body may usurp what the request letter refers to as "the right or responsibility to appoint commission members without consent or approval of the chief executive." Id.

A letter on this issue from the Mayor Pro Tempore of the City of South Houston draws our attention to a city ordinance, section 2-3(c)(2) of the Code of Ordinances, which provides that the mayor shall make vacancy appointments "not later than the second regular meeting of the city council after the vacancy occurs," and that in the event "the mayor fails or refuses to do so, the city council shall make such appointment[s] . . . ."(3) However, a municipal ordinance, even if enacted by a home rule city, is subordinate to a statute such as section 143.006. See TEX. CONST. art. XI, § 5 ("no charter or any ordinance passed under said charter shall contain any provision inconsistent with . . . the general laws enacted by the Legislature of this State"). The City of South Houston is, we are informed, "a Type A General Law City." Smith Letter, supra note 3, at 1. As such its authority is yet more limited than that of a home rule city. "[M]unicipalities have no inherent right of self-government which is beyond the legislative control of the state. . . ." 52 TEX. JUR. 3D Municipal Corporations § 136 (1999). Accordingly, the provisions of the city's ordinance may not contravene the statutory scheme.

The final two questions concern another provision of the statute, section 143.006(h), which reads:

The chief executive of a municipality or a municipal official commits an offense if the person knowingly or intentionally refuses to implement this chapter or attempts to obstruct the enforcement of this chapter. An offense under this subsection is a misdemeanor punishable by a fine of not less than $100 or more than $200.

TEX. LOC. GOV'T CODE ANN. § 143.006(h) (Vernon 1999).

We are asked, in relation to this statute, how many times a municipality's governing body may refuse to confirm the chief executive's appointment, and "[w]hen are these refusals considered a violation" of section 143.006(h). Request Letter, supra note 1, at 1. We note first that the statute is silent as to this question. It sets no particular limits in this regard. Further, a confirmation, like an appointment, would appear to be discretionary rather than ministerial. See Tex. Att'y Gen. Op. No. JC-0140 (1999) at 3 (appointment of constable to fill vacancy is discretionary, and mandamus will not lie against commissioners court to compel appointment). "An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion." Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). If confirmation by the city council were merely ministerial, it would be supererogatory.

Finally, as to what would constitute sufficient evidence that either the chief executive or any other municipal official was "knowingly or intentionally refus[ing] to implement . . . or attempt[ing] to obstruct the enforcement of" this statute, such a determination would require fact-finding of the type in which we cannot engage in the opinion process.

(Footnote 1: Letter from Honorable Mario Gallegos, Jr., State Senator, to Honorable John Cornyn, Attorney General of Texas at 1 (Oct. 9, 2000) (on file with Opinion Committee) [hereinafter Request Letter].)

(Footnote 2: Pursuant to the Code Construction Act, TEX. GOV'T CODE ANN. § 311.023 (Vernon 1998), prior law may be considered as an aid to construction, so long as it is not "used to alter or disregard the express terms of a code provision." Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). In this instance there is no substantive difference between the prior law and the code.)

(Footnote 3: Letter from Eloise Smith, Mayor Pro Tempore, City of South Houston, to Office of the Texas Attorney General (Dec. 11, 2000) (on file with Opinion Committee) [hereinafter Smith Letter].)

SUMMARY

A "vacancy" on the Fire Fighters' and Police Officers' Civil Service Commission, for the purposes of section 143.006 of the Texas Local Government Code, does not occur upon the expiration of a member's term. The appointment of another member by a municipality's chief executive requires confirmation by its governing body. However, the governing body has no independent power to appoint such members.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee