                              ATTORNEY GENERAL OF TEXAS
                                          GREG        ABBOTT




                                              April 20, 2010



The Honorable Charlie Geren                         Opinion No. GA-0771
Chair, Committee on House Administration
Texas House of Representatives                      Re: Application of Local Government Code section
Post Office Box 2910                                143.014(c) to municipalities that have adopted
Austin, Texas 78768-2910                            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 Governrilent Code [c]hapter 174, the Fire and Police
Employee Relations Act" (the "FPERA").! 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


       lRequest Letter (available at http://www.texasattomeygeneral.gov).
The Honorable Charlie Geren - Page 2            (GA-0771)



               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 ofthe Local Government Code]
               unless the municipality specifically adopts the appointmentprocedure
               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 143.0 14(b), but
removes the numerical limits established by subsection 143.0 14(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 143.0 14(c), construed the term "subsection"
in accordance with the Code Construction Actand the plain and common meaning ofthat term. Id.

         Having reexamined Attorney General Opinion GA-0662 and finding no case law since the
issuance ofthe Opinion that construes subsection 143.0 14(c) otherwise, we conclude that it correctly
states the law.
The Honorable Charlie Geren - Page 3        (GA-0771)



                                     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.




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
