                             ATTORNEY GENERAL OF TEXAS
                                         GREG        ABBOTT




                                               May 182005



The Honorable Troy Fraser                              Opinion No. GA-0325
Chair, Committee on Business and Commerce
Texas State Senate                                     Re:    Whether police officers in a civil service
Post Office Box 12068                                  municipality who advance in rank because of an
Austin, Texas 7871 l-2068                              officer’s military leave of absence may be
                                                       demoted to their former positions once the officer
                                                       returns from military service (RQ-0282-GA)


Dear Senator Fraser:

         You ask, on behalf of the City of League City, Texas (the “City”), whether police officers
in a civil service municipality who advance in rank because of an officer’s military leave of absence
may be demoted to their former positions once the officer returns from military service.’

          You inform us that the City adopted civil service status and established a civil service
commission (the “commission”) for its tire and police departments. Request Letter, supra note 1,
at 2. Positions in the City’s police department consist of four grades: (1) officer; (2) sergeant; (3)
lieutenant; and (4) captain. Id. A police department lieutenant received a military leave of absence
to serve in Afghanistan. Id. The commission filled the lieutenant’s position by promoting a sergeant
from an existing list of eligible candidates. Id. That promotion let? a vacancy in the sergeant’s
position, which the chief of police filled by designating a grade-one officer from an existing
eligibility list. Id. You ask whether, when the lieutenant returns and assumes his former rank and
position, as is the lieutenant’s right under section 143.072(c) of the Local Government Code, the
commission has the authority to return the other officers to their former positions as sergeant and
grade-one officer. Id. at 2; see TEX. Lot. GOV’TCODE ANN. 5 143.072(c) (Vernon Supp. 2004-05).

         Under a chapter 143 civil service system,responsibility for employment decisions is al!ocated
among the municipality’s      governing body, its civil service commission, and police and fire
department heads. The municipal governing body is responsible for the classification and number
of police and tire tighter positions, which it must establish by ordinance. TEX. LOC. GOV’T CODE
ANN. 5 143.021(a) (Vernon 1999). Additionally,         the municipal governing body is authorized to
vacate or abolish police or tire department positions by enacting a force reduction ordinance. Id.
5 143.085.



         ‘Letter fromHonorable Troy Fraser, Chair, Senate Committee onBusiness and Commerce, Texas State Senate,
to Honorable Greg Abbott, Texas Attorney General (Oct. 25,2004) (on file with Opinion Committee, nko availableaf
http://www.oag.state.rx.us) [hereinafter Request Letter].
The Honorable Troy Fraser - Page 2              (GA-0325)




         Chapter 143 prescribes specific procedures for the municipality’s civil service commission
and department heads to fill civil service positions. Generally, positions or classifications are filled
from an eligibility list compiled by the commission          according to appropriate examination
procedures.    Id. $5 143.021(b)-(c), .036(a)-(h). The department head must appoint the eligible
promotion candidate with the highest grade on the eligibility list unless, for a “valid reason,” the
department head follows the procedures for bypassing that individual and appointing another from
the list. Id. 5 143.036(f). Additionally, the department head has authority to “designate a person
from the next lower classification to temporarily till a position in a higher classification.”        Id.
5 143.038(b) (Vernon 1999). However, the temporary performance of such duties “may not to be
construed as a promotion.” Id. 5 143.038(c).

         Section 143.072 of the code expressly authorizes certain advancements and reductions in
rank to facilitate military leaves of absence. Id. 9 143.072(a)-(h) (Vernon Supp. 2004-05); see
generally Tex. Att’y Gen. Op. No. GA-0174 (2004) at 1. When an officer is granted military leave
the commission must fill the officer’s position “in accordance with” the civil service provisions of
chapter 143. TEX. Lot. GOV’T CODE ANN. 5 143.072(c) (V emon Supp. 2004-05). However, the
person tilling the absent officer’s position “is subject to replacement by the person who received the
military leave at the time the person returns to active duty in the department.”           Id. A person
returning from active military service “is entitled to be reinstated to the position that the person held
in the department at the time the leave of absence was granted,” provided the person receives an
honorable discharge, remains physically and mentally tit, and timely applies for reinstatement. Id.
 5 143,072(d)(1)-(3). As to the replacement who is displaced by the return of an officer from military
leave, the statute provides:

                        If the reinstatement of a fire fighter or police officer who
                received a military leave of absence causes that person’s replacement
                to be returned to a lower position in grade or compensation, the
                replaced person has a preferential right to a subsequent appointment
                or promotion to the same or a similar position from which the person
                was demoted. This preferential right has priority over an eligibility
                list and is subject to the replaced person remaining physically and
                mentally fit to discharge the duties of that position.

Id. 5 143.072(f).

        Section 143.072 does not address the situation of a person in a lower classification whose
advancement in rank is indirectly caused by a military leave of absence. You state that the
commission filled the lieutenant’s position by promoting a sergeant pursuant to section 143.036, and
the chief of police appointed a grade-one officer to fill temporarily the position of sergeant under
section 143.038. You suggest that under section 143.072 of the code, the lieutenant’s return will
effect an involuntary “demotion” of the officer promoted to lieutenant back to the rank of sergeant,
which “will, in turn, require that the Officer previously promoted to the Sergeant position be
‘demoted’ to his [grade-one] Officer position.” Request Letter, supra note 1, at 2. You ask whether
section 143.072 implicitly grants the commission authority to return the officer serving as sergeant
back to the rank of grade-one officer. Id.
The Honorable   Troy Fraser - Page 3           (GA-0325)




         A civil service commission is an administrative agency, which has only the powers expressly
granted to it by statute, along with those necessarily implied from the authority conferred or duties
imposed. Staufferv. CityofSun Antonio, 344 S.W.2d 158,16O(Tex. 1961). Under section 143.072,
when an officer is granted a military leave of absence, “the commission shall till the person’s
position in the department in accordance with this chapter.” TEX. Lot. GOV’T CODE ANN.
$j 143.072(c) (Vernon Supp. 2004-05). The commission’s general authority to fill positions is found
in the description of procedures for filling a vacant position by promotion in section 143.036. See
id. 5 143.036 (Vernon 1999). However, under section 143.072, the position of an officer on a
military leave of absence is not a vacant position. Consequently, while it is appropriate for the
commission to follow section 143.036 procedures for tilling a position while an officer is on a
military leave of absence under section 143.072, the resulting appointment cannot be considered a
permanent appointment. When the officer on leave returns, the replacement officer may be “returned
to a lower position.” Id. § 143.072(f) (Vernon Supp. 2004-05).

          Section 143.072 does not address the commission’s authority to demote other subordinate
officers whose advancement in rank is indirectly caused by a superior offmer’s military leave. Here,
however, the grade-one officer was not officially promoted to sergeant but instead was assigned by
the police chief to till the sergeant position temporarily under section 143.038. See id. 5 143.038
(Vernon 1999). As section 143.038 expressly states, a “department head may designate a person
from the next lower classification to temporarily till a position in a higher classification.” See id.
$ 143.038(b). Because it is temporary, the designation “may not be construed as a promotion.” See
id. $143.038(b). Consequently, when the lieutenant returns from the military leave of absence, the
head of the police department may declare the temporary assignment at an end, and the grade-one
officer simply resumes the officer’s former duties. We do not opine about the authority of the
commission and the department head to till positions temporarily other than in the context of
facilitating a military leave of absence under section 143.072.
The Honorable Troy Fraser - Page 4           (GA-0325)




                                      SUMMARY

                      A police officer or fire fighter who tills the position of an
              officer on a military leave of absence under section 143.072 of the
              Local Government Code is subject to replacement upon the officer’s
              return from leave. When a city civil service commission has filled a
              position under section 143.072 with a replacement            officer, a
              department head may assign a subordinate officer to perform the
              duties of the replacement officer under section 143.038. Such an
              assignment is not a civil service promotion, and may be ended by the
              department head as circumstances warrant.

                                             Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
