Attorney General Opinion GA-0586

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 Dear Representative Bailey: 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) You ask whether a local civil service commission may adopt a rule that awards additional points to applicants on the basis ofresidency 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. Lac. GOV'T CODEANN. § 143.025(a) (Vernon Supp. 2007). Another portion ofthe 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 basedon a maximum grade of100percent 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 examinationto be placed on an eligibility list. Id. § 143.025(i) (emphasis added). You indicate that the civil service commission ofthe City ofPort Arthur (the "Commission") has adopted Rule 9.20(B), which states: lLetter from Honorable Kevin Bailey, Chair, Urban Affairs Committee, Texas House of Representatives, to Honorable Greg Abbott, Attorney General ofTexas (June 26, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter]. The Honorable Kevin Bailey - Page 2 (GA-0586) An applicant who can prove that they [sic] have been a bona fide resident ofthe 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 ofthe 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 ofHouston v. Jackson, 192 S.W.3d 764,770 (Tex. 2006). To determine that intent, we look to the. plain and common meaning ofthe words ofa 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 ofcalculating 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 ofthe "grade to be placed on the eligibility list" is the "applicant's points under Subsection (f), if any," Le., 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 ofPort Arthur and for the Commission contend that the question is whether the Commission's rule is preempted by any portion of section 143.0252 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 ofDallas, 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 ofthe 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 ofSan Antonio, 344 S.W.2d 158 (Tex. 1961), the Texas Supreme Court considered the status ofthe civil service commission of the City of San Antonio. The court declared that "[a]n administrative agency such asthe Civil Service Commission has only such powers as are expressly granted to it by statute together with those necessarily implied 2See Brieffrom The Parker Law Firm, on behalfofthe City ofPort Arthur and the Port Arthur Civil Service Commission, to Honorable Greg Abbott,Attorney General of Texas, at 2 (Aug. 10,2007). 3Section 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. Lac. GOV'T CODE ANN. § 150.021(a) (Vernon 1999). The Honorable Kevin Bailey - Page 3 (GA-0586) 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) ofthe Local Government Code precludes any attempt by the Commission to award additional points to a civil service applicant on the basis ofresidence 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) ofthe Local Government Code. The Honorable Kevin Bailey - Page 4 (GA-0586) SUM M AR Y 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