          THE     ATTOR,YEY         GENERAL
                      Olp TEXAS




Honorable Dale Henna                opinion No.   al-582
Johnson County Attorney
1st Floor, Courthouse               Re: Eligibility of a firefighter
Cleburne. Texas   76031             to take a promotional examination
                                    under article 1269m, V.T.C.S.

Dear Mr. Hanna:

     You have requested the opinion of this office regarding the
interpretation and application of section 14,(A)(3)of article 1269m,
V.T.C.S., which is the FIxemen's and Policemen's Civil Service Act.
Specifically. you ask whether only firemen in the highest salary step
in the classification immediately below a classification with a vacant
position are eligible tc take the promotion examination that is
required for filling the vacancy, or whether all firemen with at least
two years of continuous service in the next lower classification
qualify to take the promotional test.

     The voters of the city of Cleburne. which has e population of
approximately 20,000, adapted the provisions of the Firemen's and
Policemen's Civil Service Act in 1948. There are five ranks or
classifications within    the Cleburne Fire Department. namely,
"firefighter," which is txe entry level classification, followed by
"firefighter engineer," "lieutenant," "captain," and nassistant
chief." There is one pa)' grade or salary range for each of those
classifications, and en aut:omaticsalary increase based on longevity
is granted within the classification. For the rank of firefighter,
longevity steps and salary increases occur after 6 months, 12 months,
24 months, and 36 months. Article 1269m provides that all persons in
each classification shall be paid the same salary and authorizes
longevity pay in addition ':othe same basic salary. See V.T.C.S. art.
1269m, §SA(d). Some of the firemen in the Cleburnexre       Department
contend that only firemen Ln the firefighter classification who have
attained the highest longevity step are eligible to take promotion
examinations for positions !;nthe firefighter engineer classification.
It is our opinion that all firemen with at least two years continuous
service in the classification of firefighter qualify to take e
promotion examination for positions in the next higher classification
of firefighter engineer.




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Honorable Dale Henna - Page 2   (JM-582)




     The original enactment in 1947 of the civil service act for
firemen end policemen provided that

          [nlo person shall be eligible for promotion unless
          he has served in :suchDepartment for et least two
          (2) years immediately preceding the date of such
          promotional examination, in the next         lower
          position to that for which such examination is to
          be held. . . .

Acts 1947, 50th Leg., ch. 325, $14 et 555.      As emended in 1949,
section 14(A) provided, in pert:

             A. All promotional examinations shell be open
          to all policemen end firemen who have held a
          position for two (2) years or more in the ,classi-
          fication immediz.tely below in salary of that
          classification for which the examination is to be
          held. . . .

Acts 1949, 51st Leg., ch. 572, 514(A), at 1116. Subsequently in 1979,
the legislature separated 1:hephrase "in salary" from the rest of the
sentence with comma    so that section 14(A)(3) of article 1269m.
V.T.C.S., now reads:

          In any city having a population of less then
          1.500.000, accor(i:lngto the most recent federal
          census, all promctional examinations shell be open
          to all firefighixrs who have ever held a con-
          tinuous position for two (2) years or,more in the
          classification icm~ediatelybelow, in salary, that
          classification for which the examination is being
          held. . . .

                               §14(A), at 3048; Acts 1979, 66th Leg.,
Acts 1985, 69th Leg., ch. !)l.O,
ch. 753, 514(A)(2), at 1861.

     We conclude that the phrase "in the classification immediately
below, in salary. that classification for which the examination     is
being held" means the classification thet, as determined by the salary
range for each classificatjon, is immediately below the classification
for which the examination L:Ibeing held. It is our opinion that the
legislature intends the words "immediately below, in salary" to be a
description of the classLfication, rather than a description of
individual firemen within the classification.        Interpreting the
language in section 14(A)(X) to Include any person holding e position
within the classification for at least two years, regardless of
whether the person's longevity pay is the highest within the




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Honorable Dale Hanna - Page,3    (JM-582)




classification, is reasonslyle when that language is read      in   the
context of the entire civil.service act.

     With an exception r;ot applicable to Your inquiry, section
14(D)(5) of article 1269m :!rovidesthat a firefighter is not eligible
for promotion unless he bar; served in the~department for at least two
years prior  to the day of the promotional examination "in the next
lower position or the pol;itions specified by the Commission." As
previously stated, the act expressly authorizes longevity PaY in
=ddition to the same salary paid all persons in each classification.
Nowhere does the act prov1i.ethat promotions or promotion examinations
are limited to persons in the highest longevity step within the next
lower position or classific:a.tion.on the other hand, section 14(B) of
article 1269m expressly prclvides,that

          [e]ach fire fight,ershall be given one (1) point
          for each year of ;seniorityin his Department, but
          never to exceed ten (10) points. . . .
Section 14(D)(3) of srticlc 1269m states that

          Itlhe grade which shall be placed on the eligi-
          bility list for $ach fire fighter applicant shall
          be computed by adding the fire fighter applicaqt's
          points for seniority to his grade on the written
          examination. . . .

     we are not aware of irny case in which a Texas court considered
whether article 1269m limi~:spromotions to persons in the next Lowest
classification who are re':eiving the highest longevity pay. Texas
courts, however, have stated that firemen's civil service examinations
are open to all persons employed for two (2) years in the next lower
grade except that a civil s,ervicecommission may extend examinations
to members in both the fi::st and second lower grades to provide an
adequate number to take an examination, and those courts made no
mention Of a requirement tt.ata fireman be in the highest salary step
within either classificat:.on. See Stahl v. Cit of Houston, 397
S.W.2d 318 (Tex. Civ. App. - Houston 1965, m-08                     v.
City of Houston, 375 S.W.23 952, 957 (Tex. Civ. App. - Houston 1964,
writ ref'd n.r.e.) (commisa:ionmay extend the examination to “members
in the second lower posil:;:onin salary, which is Grade 6, Arson
Investigator"). Cf. City c'fHouston v. Landrum, 448 S.W.2d 816 (Tex.
Cl". App. - Houstr[14th   Dist.] 1969, writ ref'd n.r.e.) (position of
Pipeman and Ladderman is immediately below that of ~Ch&ffer but
applicant who had not been c,Lassifiedas Pipeman and Ladderman for two
years was refused examination).

     The provisions of article 1269m relating to promotion examina-
tions have been described since 1976 in 22 Texas Practice, Municipal




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Honorable Dale Henna - Page 4     (JM-582)




Law & Practice, where sec::%on 243 states that, "to be eligible for
examination the employee nust have been two years in the next lower
classification" without suj:pestingadditional requirements or limita-
tions.

     It is our opinion thet if the legisleture had intended only
firemen in the highest salary step within a classification to qualify
to take e promotion exeminstion, it would have expressly so provided
in the stetute.

     You ask additional questions which we do not enswer, because they
are not relevant to our conclusion on the eligibility of firemen to
take promotion examinations for positions in higher classifications.

                                SUMMARY

              Under the Ztremen's and Policemen's Civil
         Service Act, ert:.cle1269m, V.T.C.S., all firemen
         with at least twclyears continuous service in the
         classification inm~ediatelybelow a classification
         for which a prcmotion examination is held ere
         eligible to take the promotion examination.




                                      LLh
                                           Very truly your ,
                                                   .


                                           JIM     MATTOX
                                           Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairmen, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General




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