                                  Office of the JZlttornepdQeneral
                                                &ate       of ?Eexa$
DAN MORALES
 ATTORNEY
      GENERAL                                        July 29, 1997


   The Honorable Frank Madla                                 Opinion No. DM-447
   Chair, Nominations Committee
   Texas State Senate
   P.O. Box 12068                                            Re: Authority of municipality to approve, reject,
   Austin, Texas 7871 l-2068                                 or review rules adopted by tire and police civil
                                                             service commission (RQ-910)

   Dear Senator Madla:

           As you know, chapter 143 of the Local Government Code allows a city whose voters adopt
   the chapter to establish a tire fighters’ and police offtcers’ civil service commission.’ Civil service
   commissions are charged with administering chapter 143 in accordance with its purpose, and are
   given rule-making authority to do so? You ask whether the City of San Antonio, whose voters have
   adopted chapter 143, has the authority to review, adopt, or reject rules promulgated by the city’s fire
   fighters’ and police officers’ civil service commission.’ You also ask whether review authority may
   be given to the city by rule adopted by the commission. We conclude that the city has no authority
   to adopt an ordinance making commission rules contingent upon city review, and that the
   commission may not adopt a rule providing for such review.

          Home-rule cities like San Antonio derive their powers from the constitution.’ Their broad
   powers may be limited only by their own charters, the Texas Constitution, or laws enacted by the




             ‘Chapter 143 applies to a city that (1) has a population of 10,000 CIImore, (2) has a paid fre department
   and police department and (3) has voted to adopt chapter 143 01 the law codified by the chapter. Local Gov’t Code
   5 143.002.

            *See Local Gov’t Code $5 143.001(b), .008. The purpose of chapter 143 is “to secure effkient fire and
   police departmenta composed of capable personnel who are free from political influence and who have permanent
   employment tenure as public servants.” Id. 5 143.001(a).

            3We assume that this authorily is or would be granted to the city in its charter or by ordinance. While a
   home-rule city possesses those powers not denied by statute 01 constitution, to be exercised those powers must be
   incorporated into the city’s charter. See Zuchry v. City ofSan Antonio,296 S.W.2d 299,301 (Tex. Civ. App.--San
   Antonio 1957, tit granted), af’d, 305 S.W.2d 558 (1957).

            ‘See Tex. Cast. art. Xl, 5 5; see also Local Gov’t Code 5 51.072 (providing that home-rule city has full
   power of local self-govemmellt).
The Honorable Frank Madla - Page 2                      m-447)




legislature? A city may not adopt a charter or ordinance “inconsistent with the Constitution of the
State, or of the general laws enacted by the Legislature of this State.‘6 This means that a city may
not pass an ordiice     regarding a particular matter if the legislature has prohibited it t?om doing so.’
Similarly, an ordinance that attempts to regulate a subject matter preempted by statute is
unenforceable to the extent it conflicts with the statute.* The mere fact that the legislature has
enacted a law addressing the subject does not mean the subject matter is entirely preempted,
however9 If the legislature chooses to exercise its authority to limit a city’s power by prohibition
or preemption, the limitation must appear with “unmistakable ~larity.“‘~

        With respect to your questions, then, a home-rule city has the authority to review rules
promulgated by a fire fighters’ and police officers’ civil service commission created pursuant to
chapter 143 unless, with unmistakable clarity: (1) chapter 143 prohibits a city from reviewing
commission rules; or (2) chapter 143 preempts a city from legislating with respect to fire fighters’
and police officers’ civil service commissions.

        No statute expressly prohibits a city Tom reviewing civil service commission rules. Instead,
rule-making authority is granted affirmatively to civil service commissions in various sections of
chapter 143.” The procedure for promulgating commission rules is set out in section 143.008, which
provides in pertinent part:

                  (d) The commission shall publish each rule it adopts and each classifi-
             cation and seniority list for the fire and police departments. The rules and
             lists shall be made available on demand. A rule is considered to be adopted
             and sufticiently published ifthe commission adopts the rule by majority vote
             and causes the rule to be written, typewritten, orprinted. Publication in a


         SSee Tex. Const art. XI, 5 5,




         ‘See City of SweetwaterV. Germ, 380 S.W.2d 550,552 (Tex. 1964).

         8DallasMerchant’sand Concessionaire’sAss% v. City ofDaku, 852 S.W.2d 489,491               (Tex. 1993).

         91d.

         “Id. at 491; City ofsweehvater, 380 S.W.2d at 552.

           “For example, section 143.008(a) requires a commissionto adopt“rulesnecessaryfor the proper conduct of
commission business.” Other provisions in chapter 143 authorize or require commissions to adopt rules with respect
to specific employment matters. See, e.g., Local Gov’t Code 5 143.008(c) (requiring commission to adopt rules
pmcribiig cause for removal or suspension of fire fighter or police officer), .0251 (allowing ccmmission ta adopt rule
to allow police officer to be reappainted after resignation), .I04 (requiring ccmmission to adopt rules for standardized
entrance and promotional examinations).




                                                         p.   2504
The Honorable Frank Madla - Page 3                           m-447)




              newspaper is not required and the governing body of the municipality is not
              required to act on the rule.

                 (e) A rule is not valid and binding on the commission until the
              commission:

                      (1) mails a copy of the rule to the commissioner, if the municipality
                  has an elected commissioner, and to department heads of the tire and
                  police departments;

                      (2) posts a copy of the rule for a seven-day period at a conspicuous
                  place in the central fire and police stations; and

                        (3) mails a copy of the rule to each branch fire station.‘*

According to 143.008, then, commission rules are deemed adopted when they are approved by a
majority vote of the commission and written, typewritten or printed. They are deemed valid and
binding when a copy is mailed to the elected civil service commissioner, mailed to the heads of the
fire and police departments, posted conspicuously and the main fire and police stations for seven
days, and mailed to each branch fire station.

        In our opinion, the legislature clearly has provided for the adoption of commission rules
without city review or approval, thereby preempting city action in this area. A city may not,
therefore, adopt an ordinance requiring city review or approval of commission rules as a condition
of the rules becoming effective.

         We note that a city is not preempted completely from acting with respect to police officers
and fire fighters within a civil service system. Chapter 143 grants rule-making authority to cities for
certain purposes. I3 Additionally, the Texas Supreme Court has held that legislative enactment of
civil service laws does not divest a city council of its residual authority as the governing body of the
city.14 Thus courts have afkned      city ordinances that regulate specific  aspects of fire fighters’ and




         %xaI    Gov’t Code g 143.008(d) (emphasis added).

          “See, e.g., id. $ 143.021 (requiring   city to   adopt ordiice   establishing classifications for fme fighters and
police ofticers.)

         “See City   of Sweehvater, 380 S.W.Zd at 553; Glnss v. Smith, 244 S.W.Zd 645 (Tex. 195 1); Dallas Merchant k,
852 S.W.2d at 491.




                                                            p.   2505
The Honorable Frank Madla - Page 4                   KtM-447)




police officers’ civil service, provided the ordinances do not conflict with specific statutory
mandates.‘s

        You also ask whether a civil service commission may adopt a rule granting review authority
to the city. A civil service commission derives its powers from chapter 143. As such, it has only
those powers expressly granted to it or necessarily implied from or incident to its express powers.‘6
When given rule-making authority, an administrative agency generally may adopt only such rules
as are authorized by and consistent with its statutory authority. An agency rule may not impose
additional burdens, conditions, or restrictions in excess of or inconsistent with relevant statutory
provisions. I7 Because commission rules are deemed adopted, valid, and binding upon satisfaction
of the requirements set out in chapter 143, any rule imposing additional requirements would be
inconsistent with the statute and thus beyond the scope of a commission’s    rule-making   authority.




         “See, e.g., Ciq of Sweetwater, 380 S.W.2d at 550; Jones v. City of Houston, 907 S.W.Zd 871 (Tex. App.--
Houston [lst Dist.] 1995, wit denied); Collierv. Firemen’s and Policemen k CivilSew. Comm’n, 817 S.W.2d404 (Tex.
App.-Fofi Worth 1991, writ denied).

          ‘bCentrol Educ. Agency v. Upshur County Comm fs Court, 731 S.W.2d 559,561 (Tex. 1987); City of Sherman
v. Public Util. Comm ‘a, 643 S.Wld 681,686 (Tex. 1983); Attorney General Opinion DM-338 (1995) at 10.

       “Railroad Comm’n v. Lone Star Gas Co., 844 S.W.Zd 679,685 (Tex. 1992); Railroad Comm fr v. Arco Oil
& Gas Co., 876 S.W.2d473.481-82 (Tex. ASP--Austin 1994, writ denied).




                                                    p. 2506
TheHonorableFrankMadla        - Page 5             (m-447)




                                        SUMMARY

                A home-rule city that has established a fire fighters’ and police officers’
           civil service commission pursuant to Local Govemment Code chapter 143
           has no authority to review, adopt, or reject rules promulgated by the
           commission. A chapter 143 civil service commission may not adopt a rule
           providing for city review, adoption, or rejection of commission rules.

                                                  Yours very truly,

                                            F\.
                                           d*
                                                                 a/-C-
                                                                ML ’
                                                  DAN MORALES
                                                  Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by Barbara Griffin
Assistant Attorney General




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