                                        November   lo,1999



The Honorable Judith Zaftirini                 Opinion No. X-0143
Chair, Human Services Committee
Texas State Senate                             Re: Whether a civil service commission governed
P.O. Box 12068                                 by chapter 143 of the Local Government Code may
Austin, Texas 78711                            require applicants for beginning fire fighter positions
                                               to be United States citizens (RQ-OOSO-JC)


Dear Senator Zaftirini:

         You ask whether a civil service commission governed by chapter 143 of the Local
Government Code may require applicants for beginning fire fighter positions to be United States
citizens. We conclude that state law does not preclude a civil service commission from imposing
qualifications for beginning tire fighters in addition to those set forth in chapter 143 of the Local
Government Code and Commission on Fire Protection rules.

        You explain that three fire tighter applicants were recently rejected by the Laredo Civil
Service Commission (“the Civil Service Commission”) because they are not United States citizens.
We understand that the Civil Service Commission rejected the applicants on the basis of a Laredo
city ordinance and a Civil Service Commission rule, both of which provide that city fire fighters
must be United States citizens. Telephone Conversation with Jerry Cain, Laredo City Attorney’s
Office (July 12, 1999). We assume that the Civil Service Commission is governed by chapter 143
of the Local Government Code and that provisions of chapter 143 governing appointment of
beginning tire fighters have not been superseded by a collective bargaining agreement. See Tex.
Att’y Gen. LO-95-019, at 3 (“a city that has adopted chapters 143 and 174 ofthe Local Government
Code may agree with the collective bargaining agent representing its fire fighters to include
provisions on entry-level employment in the collective bargaining agreement that will prevail over
section 143.026 of the Local Government Code, if the agreement specifically provides that its
provisions prevail over the statute”).

        You ask the following questions:

                        Does the Laredo Civil Service Commission’s      citizenship
                requirement disqualify non-United States applicants in violation of
                state law?
The Honorable Judith Zaffhini    - Page 2        (JC-0143)




                        Does Section 143.023(d), Local Government Code, which
               conditions an applicant’s post-employment  certification on the pre-
               employment     citizenship statute justify the initial citizenship
               requirement?

Letter from Honorable Judith Zaffirini, Chair, Human Services Committee, Texas State Senate, to
Honorable John Comyn, Attorney General of Texas (June 21, 1999) (on tile with Opinion
Committee).

          We begin with a brief review of the statutory scheme for appointment of entry-level tire
fighters. The appointment of tire fighters by a chapter 143 civil service commission is governed by
subchapter B of that chapter. Section 143.022 authorizes a civil service commission to set age and
physical requirements for applicants for beginning and promotional positions. SeeTEX. LOC. GoV’T
CODE ANN. 5 143.022(a) (Vernon 1999). A civil service commission              must administer physical
examinations and may require mental examinations.           See id. 5 143.022(b) (Vernon Supp. 1999).
Beginning fire fighters must be hired from an eligibility list. See id. 5 143.026 (Vernon 1999). The
eligibility list is created “as a result of a competitive examination.” Id. 9 143.025(b). In addition,
section 143.023(d) provides that an applicant “may not be certified as eligible for a beginning
position with a tire department unless the applicant meets all legal requirements necessary to become
eligible for future certification by the Commission on Fire Protection.” Id. 5 143.023(d).

         Chapter 143 does not address the citizenship of fire fighters. Although the Commission on
Fire Protection is authorized to establish citizenship requirements for tire fighters, see TEX. GOV’T
CODE ANN. 5 419.032(b) (Vernon 1998) (authorizing commission by rule to establish qualifications
for tire protection personnel relating to a list of subjects including citizenship), it has not done so,
see 37 TEX. ADMIN. CODE chs. 421,423 (Commission on Fire Protection standards for certification)
(1999). (The Commission on Law Enforcement Officer Standards and Education, by contrast, lacks
authority to require a peace officer applicant to be a United States citizen. See Tex. Att’y Gen. Op.
No. DM-105 (1992)) Thus, section 143.023(d) ofthe Local Government Code, whichprovides that
an applicant “may not be certified as eligible for a beginning position with a fire department unless
the applicant meets all legal requirements necessary to become eligible for future certification by the
Commission on Fire Protection,” TEX. Lot. GOV’T CODE ANN. 5 143.023(d) (Vernon 1999) does
not require that an applicant be a United States citizen.

          However, neither chapter 143 nor the Commission on Fire Protection rules usurp the
 authority of local civil service commissions to establish fire tighter qualifications. A civil service
 commission is expressly authorized to establish tire fighter qualifications and standards that exceed
 the minimum standards set by the Commission on Fire Protection. See TEX. GOV’T CODE ANN.
 6 419.032(b) (Vernon 1998). And, as one court noted in reviewing a challenge to a civil service
 commission nepotism regulation, “chapter 143 of the Local Government Code does not specifically
 preempt the field in the area of what a qualified, competent, and suitable fire department applicant
 may be.” Collier v. Firemen’s and Policemen’s Civil Serv. Comm ‘n, 817 S.W.2d 404,406 (Tex.
 App.-Fort Worth 1991, writ denied). For this reason the court concluded that the nepotism
The Honorable Judith Zaftirini   - Page 3        (JC-0143)




regulation did not “as a matter of law violate any rights of appellants to compete     for entry level
positions.” Id.

         In sum, the Civil Service Commission is authorized to promulgate qualifications         for
beginning tire fighters in addition to those set forth in chapter 143 of the Local Government Code
and the Commission on Fire Protection certification requirements.           Thus, in answer to your
questions, the Civil Service Commission citizenship requirement is not required by section
143.023(d) of the Local Government Code but is authorized by state law and does not violate a state
statute.

         We understand that the Civil Service Commission rule imposing the citizenship requirement
is based on a city ordinance. In deference to city officials, this office does not generally construe
city charters or ordinances. See, e.g., Tex. Att’y Gen. Op. No. JC-0035 (1999) at 3 (“Not having the
charter before us, and in deference to municipal officials’ authority to construe their municipality’s
ordinances and charters, we decline to comment on whether the ordinance is consistent with the city
charter.“); Tex. Att’y Gen. LO-94-008, at 2 n.1 (declining to issue opinion in deference to city
attorney, who bears primary responsibility for construing city charter). We note, however, that the
City of Laredo City Attorney might wish to review both the city ordinance and the Civil Service
Commission      rule in light of federal cases holding that citizenship requirements         for public
employment violate the Equal Protection Clause with respect to some but not all job classifications.
Compare Bernal v. Fainter, 467 U.S. 216 (1984) (holding that Texas statute requiring notary to be
a United States citizen violated the Equal Protection Clause), and Sugarman Y. Dougall, 413 U.S.
634 (1973) (holding that New York civil service law providing that only United States citizens may
hold permanent positions in competitive class of state civil service violated Equal Protection Clause),
with Cube11 v. Chavez-Salido, 454 U.S. 432 (1982) (upholding California statute providing that
peace officers must be United States citizens), and Ambach v. Norwick, 441 U.S. 68 (1979)
 (upholding New York statute requiring public school teachers to be United States citizens).
The Honorable Judith Zaffirini     - Page 4     (X-0143)




                                        SUMMARY

                        A civil service commission is authorized to promulgate
               qualifications for beginning fire fighters in addition to those set forth
               in chapter 143 of the Local Government Code and the Commission
               on Fire Protection certification requirements.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
