                                  The Attorney          General of Texas

  JIM MATTOX                                       February 23, 1984
  Attorney General



  Supreme Court Building         Honorable William R. Moore             Opinion No. JM-128
  P. 0. BOX 12548
                                 Tom Green County Attorney
  Austin, TX. 78711. 2548
  512/475.2501
                                 112 West Beauregard Street             Re:  Construction of article
  Telex 9101874.1387             San Angelo, Texas   76903              1269m, V.T.C.S.
  Telecopier   51214750286
                                 Dear Mr. Moore:
  714 Jackson, Suite 700
 ‘Dallas, TX. 75202-4508
                                      YOU  have   requested this office's advice        regarding the
  2141742-8944                   interpretation and application of subsections 14(A)(2) and 14(D)(5) of
                                 article 1269m. V.T.C.S., the Firemen's and Policemen's Civil Service
                                 Act. These subsections provide in part:
  4824 Alberta Ave., Suite 180
  El Paso. TX. 799052793
  915/533-3484
                                             Sec. 14. The Commission shall make rules and
                                          regulations governing promotions and shall hold
                                          promotional examinations to provide eligibility
+OOl       Texas, Suite 700               lists for each classification in the Police and
       ,uston, TX. 77002-3111             Fire Departments, which examinations shall be held
  11312235888
                                          substantially under the following requirements:

  605 Broadway, Suite 312                    A . . . .
  Lubbock. TX. 79401.3479
  SW747-5238                                  (2) All promotional examinations shall be open
                                          to all firemen who have ever held a continuous
  4309 N. Tenth, Suite S                  position for two (2) years or more         in the
  McAllen, TX. 78501-1685                 classification immediately below, in salary, that
  5121662-4547                            classification for which the examination is being
                                          held. In fire departments that have adopted a
  200 Main Plaza. Suite 400
                                          classification plan that classifies positions on
  San Antonio, TX. 782052797              the    basis  of    similarity   in   duties   and
  512/225.4191                            responsibilities, all promotional examinations
                                          shall be open to a fireman who has ever held a
                                          continuous position for two (2) years or more at
  An Equal Opportunity/
                                          the next lower paygrade, if it exists, in the
  Affirmative Action Employer
                                          classification    for      which the   promotional
                                          examination is being offered . . . .

                                              . . . .

                                             D....




                                                          p. 542
                                                                         r




Honorable William R. Moore - Page 2    (JM-128)




             (5) No fireman shall be eligible for promotion
          unless he has served in such Department for at
          least two (2) years at any time prior to the day
          of such promotional examination in the next lower
          position or other positions specified by the
          Commission . . . .

     Your inquiry concerns a fireman who has completed two or more
years continuous service in a particular classification with one fire
department and then is employed by a second fire department.       YOU
wish to know whether his service for the first fire department
qualifies him for examination and promotion in the second department.

     You state that, formerly, classifications set by local civil
service commissions may have varied from one city to another. Now,
however, classifications adopted by local civil service commissions
have become uniform throughout the state, largely because the
Commission on Fire Protection Standards and Education has established
uniform minimum standards for firemen. V.T.C.S. art. 4413(35), 12(2).
See Attorney General Opinion m-320         (1981).    Because service
ossifications   have become standardized, firemen moving from one fire
department to another have argued that their service with the first
employer qualifies them to take the examination with the second.
Section 14(A)(2) of article 1269m does not expressly require that a
fireman's two years' continuous service in a particular classification
be with the department giving the promotion exam. The firemen in
question have therefore interpreted this provision as allowing them to
use service elsewhere to qualify for the promotion exam given by their
new employer. If they have correctly interpreted section 14(A)(2), it
may be inconsistent with section 14(D)(5) which restricts promotion to
firemen who have served in "such Department" for at least two years
prior to the promotional exam.

     In our opinion, section 14(A)(2) opens promotion exams only to
firemen who have held the requisite employment in the examining
department for two or more years, while section 14(D)(5), with one
express exception, permits the promotion only of this class of
firemen. These two provisions must be read in the context of article
1269m in its entirety.

     Article 1269m establishes in all cities having a population of
ten thousand or more inhabitants, and "having a paid Fire Department
and Police Department," a Firemen's and Policemen's Civil Service,
section 1. The provisions of article 1269m do not apply to a city
unless it adopts them, and it may choose to apply the provisions only
to a Fire Department or only to a Police Department, section 27. The
statute gives each city some freedom to design its own civil service
plan. The city's Civil Service Commission is to "provide for the
classification of all firemen and policemen," section 8.




                              p. 543
.   I




        Honorable William R. Moore   - Page 3   (JM-128)




             Article 1269m does not require these classifications to be
        uniform from city to city. Some provisions suggest that the statute
        contemplates no statewide model for classifications. For example,
        section 14(A)(2) provides in part:

                  In   fire   departments that have     adopted   a
                  classification plan that classifies positions on
                  the   basis    of   similarity in   duties    and
                  responsibilities, all promotional examinations
                  shall be open to a fireman who has ever held a
                  continuous position for two (2) years or more at
                  the next lower paygrade if it exists, in the
                  classification    for   which  the    promotional
                  examination is being offered.

        Thus, classification plans in some but not all cities may be based on
        similarity of duties and responsibilities. Classification plans may
        vary as to the number of paygrades provided. When the legislature
        enacted article 1269m in 1947, Acts 1947, 50th Leg., ch. 325 at 550,
        and when it amended section 14(A) in 1949 to require service in the
        appropriate classification, Acts 1949, 51st Leg.. ch. 572 at 1114,
         1116, it apparently did not intend or expect classification plans to
        ,be standard from one city to the next. At that time, a fireman's two
        years' service under one classification plan could not be expected to
         fulfill the requirements of a different plan.        Although article
         4413(35), V.T.C.S., has perhaps encouraged the cities to adopt uniform
         classification plans, this statute was enacted in 1969, Acts 1969,
         61st Leg., ch. 668 at 1972, and does not change the meaning of
         provisions enacted twenty years earlier.

             We therefore find no basis to interpret article 1269m. section
        14(A)(2) to permit firemen to use service with a prior employer to
        qualify for examination by a new employer.

             Moreover, any ambiguity in section 14(A)(2) should be resolved to
        harmonize it with section 14(D)(5) which reads in part:

                     No fireman shall be eligible for promotion
                  unless he has served in such Department for at
                  least two (2) years at any time prior to the day
                  of such promotional examination . . . .

        Section 2 defines "fireman" as

                  any member of the Fire Department appointed to
                  such position in substantial compliance with the
                  provisions of sections 9, 10 and 11 of this
                  Act . . . . (Smphasis added).




                                         p. 544
Honorable William R. Moore - Page 4   (JM-128)




Applying this definition to section 14(D)(5), it can be        read as
follows:

             No [member of the Fire Department] shall be
          eligible for promotion unless he has served in
          such Department for at least two (2) years . . . .

Thus, a fireman must serve in a department for two years before
becoming eligible for promotion. This interpretation is supported by
the following language of section 14(D)(5):

          [T]he requirement of two (2) years' service in the
          Fire Department at any time prior to the day of
          promotional examination shall not be applicable to
          those persons recalled on active military duty for
          a   period   not  to   exceed   twenty-four   (24)
          months . . . . Such persons shall be entitled to
          have time spent on active military duty considered
          as duty in the Department concerned. (Emphasis
          added).

This exception from the two years' service requirement clearly
delineates the general rule: the qualifying service must be completed
in the department wherein the fireman seeks promotion. See City of
Houston v. Landrum. 448 S.W.2d 816, 818 (Tex. Civ. App-       Houston
114th Dist.] 1969, writ ref'd n.r.e.). Finally, in section 9, the
legislature specifically recognized service elsewhere as relevant to
employment by a police department:

          No person shall be certified as eligible for a
          beginning position with a Police Department who
          has reached his thirty-sixth birthday unless the
          applicant has at least five (5) years prior
          experience as a peace officer.

In the absence of such an express reference in section 14(A)(2) to
prior service elsewhere, section 14(A)(2) should be read in harmony
with section 14(D)(5) as barring from the examination fireman who have
not had two years service with the department giving the examination.

     You also inquire whether the provisions of section 14 requiring
two years' service are mandatory. You point out that the court in
City of Waco v. Akard, 252 S.W.2d 496 (Tex. Civ. App. - Waco 1952,
writ ref'd n.r.e.) said in dicta that this provision was directory and
did not prevent the commission from permitting a policeman eight days
short of the two years' continuous service to take the exam and
receive a promotion. See also Attorney General Opinion V-855 (1949)
(statutes prescribing time in which public offices shall perform
specific duties are directory). However, more recent cases have




                                p. 545
.   .


        Honorable William R. Moore - Page 5    (JM-128)




        disagreed with this statement in City of Waco v. Akard, supra. See
        City of San Antonio v. Pinchback, 489 S.W.2d 451 (Tex. Civ. App. - San
        Antonio 1972, no writ); City of Houston v. Landrum, supra, at 819;
        Stahl v. City of Houston, 397 S.W.2d 318. 320 (Tex. Civ. App. -
        Houston [Ist Dist.] 1965, writ ref'd n.r.e.). The direct authority,
        as well as the weight of authority, holds that section 14 is
        mandatory.

                                    SUMMARY

                    A fireman who has not completed two years'
                 continuous service with the fire department
                 employing him is not eligible for promotion in the
                 department or to take a promotion examination
                 pursuant to section 14 of article 1269m. The two
                 year prior service provision of section 14 is
                 mandatory.




                                                 JIM     MATTOX
                                                 Attorney General of Texas

        TOM GREEN
        First Assistant Attorney General

        DAVID R. RICHARDS
        Executive Assistant Attorney General

        Prepared by Susan L. Garrison
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Rick Gilpin, Chairman
        Jon Bible
        Colin Carl
        Susan Garrison
        Jim Moellinger
        Nancy Sutton
        Bruce Youngblood




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