### THE ATTOR,YEY GENERAL Olp TEXAS

HonorableDale Henna Johnson CountyAttorney 1st Floor, Courthouse Cleburne.Texas 76031 opinionNo. 

### al-582
Re: Eligibilityof a firefighter 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 classificationimmediatelybelow a classificationwith a vacant position are eligible tc take the promotion examination that is required for filling thevacancy, orwhether all firemenwith at least two years of continuous service in the next lower classification qualify to take thepromotional 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 increasesoccur after 6 months, 12months, 24months, and 36 months. Article 1269mprovides that all persons in each classification shall be paid the same salary and authorizes longevitypay in addition ':othe same basic salary. SeeV.T.C.S. art. 1269m, §SA(d). Some of the firemen in the Cleburnexre Department contend that only firemen Ln the firefighter classificationwho have attained the highest longevity step are eligible to take promotion examinations for positions !;nthe firefighterengineerclassification. It is our opinion that all firemenwith 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 firefighterengineer.

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

[nloperson shallbe eligible for promotionunless he has served in :such Department 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 ormore in the ,classification immediz.telybelow 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:he phrase "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:lng to the most recent federal census,all promctional examinationsshellbe open to all firefighixrs who have ever held a continuousposition for two (2)years or,more in the classification icm~ediately below, in salary, that classification for which the examination is being held.
. . . Acts 1985, 69th Leg., ch. !)l.O, §14(A),at 3048; Acts 1979, 66th Leg., 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 classificationthet, as determinedby the salary range for each classificatjon,is immediatelybelow the classification for which the examination L:I being held. It is our opinion that the legislature intends the words "immediatelybelow, 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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classification, is reasonslylewhen that language is read in the context of the entire civil.serviceact. With an exception r;ot applicable to Your inquiry, section 14(D)(5) of article 1269m :!rovidesthat a firefighter is not eligible for promotion unlesshe 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;itionsspecified 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.ethatpromotions or promotion examinations are limited to persons in the highest longevity step within the next lowerposition or classific:a.tion. on the otherhand, section 14(B) of article 1269mexpresslyprclvides,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 eligibility list for $ach fire fighter applicant shall be computedby adding the fire fighterapplicaqt's points for seniority to his grade on the written examination.
. . .
we are not aware of irnycase in which a Texas court considered whether article 1269m limi~:s promotions to persons in the next Lowest classification who are re':eivingthe highest longevity pay. Texas courts,however,have stated that firemen'scivil service examinations are open to all persons employed for two (2) years in the next lower grade except that a civil s,ervicecommissionmay extend examinations to members in both the fi::stand second lower grades to provide an adequate number to take an examination, and those courts made no mention Of a requirement tt.at a firemanbe 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:ion may extend the examination to “members in the second lower posil:;:on in salary, which is Grade 6, Arson Investigator"). Cf. City c'f Houston v. Landrum, 448 S.W.2d 816 (Tex. Cl". App. - Houstr[14th Dist.] 1969,writ ref'dn.r.e.) (positionof Pipeman and Ladderman is immediately below that of~Ch&ffer but applicantwho had not been c,Lassified as Pipeman and Ladderman for two yearswas refused examination). The provisions of article 1269m relating to promotion examinations have been described since 1976 in 22 Texas Practice, Municipal

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Law & Practice, where sec::%on243 states that, "to be eligible for examination the employee nust have been two years in the next lower classification"without suj:pesting additional requirements or limitations.
It is our opinion thet if the legisleture had intended only firemen in the highest salary stepwithin a classification to qualify to take e promotion exeminstion, it would have expressly so provided in the stetute.
You ask additionalquestionswhichwe do not enswer,because they are not relevant to our conclusion on the eligibility of firemen to takepromotion examinations for positions inhigher classifications.
SUMMARY Under the Ztremen's and Policemen's Civil Service Act, ert:.cle1269m,V.T.C.S., all firemen with at least twcl years continuous service in the classification inm~ediately below a classification for which a prcmotion examination is held ere eligible to take the promotion examination. Very trulyyour , 

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JIM MATTOX Attorney General of Texas
JACK HIGHTOWER First AssistantAttorney General
MARY KELLER ExecutiveAssistantAttorney General
RICK GILPIN Chairmen,Opinion Committee Preparedby Nancy Sutton AssistantAttorney General

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