                                ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT



                                                 October 13,2009



The Honorable John Whitmire                            Opinion No. GA-0741
Chair, Committee on Criminal Justice
Texas State Senate                                     Re: Whether the section 143.105, Local Government
Post Office Box 12068                                  Code, prohibition against certifying a person 45 years
Austin, Texas 78711                                    or older for a beginning position in a police
                                                       department applies to the reappointment of a police
                                                       officer under section 143.1251, Local Government
                                                       Code (RQ-0797-GA)

Dear Senator Whitmire:

        Your question relates to chapter 143 of the Local Government Code, commonly known
as the Fire Fighter and Police Officer Civil Service Act (the "Act"). TEx. Loc. GOV'T CODE ANN.
§§ 143.001-.363 (Vernon 2008 & Supp. 2009); CityofHoustonv. Clark, 1975.W.3d314, 315 (Tex.
2006) (referring to the common name of the Act). Section 143.1251 of the Act authorizes a fire
fighters' and police officers' civil service commission (a "commission") to "adopt rules to allow
a police officer who voluntarily resigns from [a police] department to be reappointed to the
department without taking another departmental entrance examination." TEx. Loc. GOV'T CODE
ANN. § 143.1251 (Vernon 2008); see also id. § 143.021(c) ("Except as provided by Section[] ...
143.1251, ... an existing position or classification or a position or classification created in the future
either by name or by increase in salary may be filled only from an eligibility list that results from an
examination held in accordance with this chapter."). Section 143.105 of the Act, through its
incorporation of the eligibility requirements in section 143.023(c), prohibits "[a] person who is
45 years of age or older" from being "certified for a beginning position in a police department." Id.
§§ 143 .023(c), .105 (Vernon Supp. 2009) (providing that the eligibility requirements prescribed by
section 143.023 apply to a beginning position); see also id. § 143.023(g) ("In addition to meeting
the requirements prescribed by this section, an applicant for a beginning position in a police
department in a municipality with a population of 1.5 million or more must meet the requirements
prescribed by Section 143.105."). You ask whether the reappointment of a police officer under Local
Government Code section 143.1251 is subjectto the prohibition against certifying a person forty-five
years or older for a beginning position in a police department. I



          1Request Letter (available at http://www .texasattomeygeneral.gov). Your written request asks whether the "45
year old limitation in 143.023 appl[ies] to a re-appointment as described in 143.0251." Id. However, we clarified with
your office that your question actually pertains to the limitation in section 143.105 and a reappointment under section
143.1251. Telephone Conversation with Lara Wendler (June 18, 2009).
The Honorable John Whitmire - Page 2                    (GA-0741)




        As factual background, you relate that an individual served eight years with the Houston
Police Department (the "Department") but voluntarily resigned2 to join the United States Navy.
Request Letter. The individual, who is currently forty-eight years old, is now leaving military
service and is seeking reappointment to the Department. 3 See id You explain that the City of
Houston (the "City"), which is governed by chapter 143, has adopted a meet and confer agreement
and nothing in that agreement addresses your question. 4 See id; see generally TEx. Loc. GOV'T
CODE ANN. §§ 143.351-.363 (Vernon 2008) (addressing meet and confer agreements in
municipalities with population of 1.5 million or more). 5 We accept for purposes of this opinion that
these facts are accurate.

        We find no case law or statutory provision that says that a police officer who voluntarily
resigns from a police department and is subsequently reappointed to the department pursuant to
Local Government Code section 143.1251 is subject to the section 143.105 prohibition against
certifying a person forty-five years or older for a beginning position in the police department.




         2Chapter 143 provides for the possible reinstatement of officers who receive a military leave of absence. See
TEx. Loc. GOV'T CODE ANN. § 143.072 (Vernon Supp. 2009). However, we do not understand the officer at issue to
have received a military leave of absence.

         lyOU do not ask about, and this opinion does not address, any federal or state law that may preempt the relevant
portions of the Act under the particular facts that give rise to your question. See, e.g., 38 U.S.C. §§ 4301-4334 (2006)
(regarding reemployment rights after uniformed services employment); TEx. GOV'T CODE ANN. §§ 613.001-.023
(Vernon 2004) (regarding reemployment after military service).

         4The City may be subject to many of the general provisions of the Act as well as those provisions that apply to
a municipality with a population of 1.5 million or more. See UNITED STATES CENSUS BUREAU, U. S. DEP'T OF
COMMERCE, 2000 CENSUS OF POPULATION, STATE & COUNTYQUIcKFACTS, available at http://quickfacts.census.gov/qfdl
states/48/4835000.html (City of Houston popUlation: 1,953,631) (last visited Oct. 9, 2009); see a/so, e.g., TEx. Loc.
GOV'T CODE ANN. § 143.101 (Vernon 2008) (providing that subchapter G applies primarily to a municipality with a
population of 1.5 million or more and that subchapters A-F apply to such municipalities, except as otherwise provided).

        SThe meet and confer agreement is relevantto this analysis because section 143.361 (b) provides that "[a] written
agreement ratified under this subchapter preempts all contrary ... legislation." TEx. Loc. GOV'T CODE ANN. §
143.361(b) (Vernon 2008).
The Honorable John Whitmire - Page 3         (GA-0741)



                                      SUMMARY

                      We find no case law or statutory provision that says that a
              police officer who voluntarily resigns from a police department and
              is subsequently reappointed to the department pursuant to Local
              Government Code section 143.1251 is subject to the section 143.105
              prohibition against certifying a person forty-five years or older for a
              beginning position in the police department.




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
