THE ATTOR,YEY GENERAL 

Olp TEXAS 

Honorable Dale Henna 

Johnson County Attorney 

1st Floor, Courthouse 

Cleburne. Texas 76031 

opinion No. al-582 

Re: Eligibility of 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 classification immediately below a classification with a vacant 

position are eligible tc take the promotion examination that is 

required for filling the vacancy, or whether all firemen with at least 

two years of continuous service in the next lower classification 

qualify to take the promotional 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:omatic salary increase based on longevity 

is granted within the classification. For the rank of firefighter, 

longevity steps and salary increases occur after 6 months, 12 months, 

24 months, and 36 months. Article 1269m provides that all persons in 

each classification shall be paid the same salary and authorizes 

longevity pay in addition ':o the same basic salary. See V.T.C.S. art. 

1269m, §SA(d). Some of the firemen in the Cleburnexre Department 

contend that only firemen Ln the firefighter classification who have 

attained the highest longevity step are eligible to take promotion 

examinations for positions !;n the firefighter engineer classification. 

It is our opinion that all firemen with 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 firefighter engineer. 

p. 2602 
Honorable Dale Henna - Page 2 (JM-582) 

The original enactment in 1947 of the civil service act for 

firemen end policemen provided that 

[nlo person shall be eligible for promotion unless 

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 or more in the ,classification immediz.tely below 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 examinations shell be open 

to all firefighixrs who have ever held a continuous position 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 classification thet, as determined by the salary 

range for each classificatjon, is immediately below the classification 

for which the examination L:I being held. It is our opinion that the 

legislature intends the words "immediately below, 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 

p. 2603 
Honorable Dale Hanna - Page, 3 (JM-582) 

classification, is reasonslyle when that language is read in the 

context of the entire civil. service act. 

With an exception r;ot applicable to Your inquiry, section 

14(D)(5) of article 1269m :!rovides that a firefighter is not eligible 

for promotion unless he 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;itions specified 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.e that promotions or promotion examinations 

are limited to persons in the highest longevity step within the next 

lower position or classific:a.tion. on the other hand, section 14(B) of 

article 1269m expressly prclvides,that 

[e]ach fire fight,er shall be given one (1) point 

for each year of ;seniority in 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 computed by adding the fire fighter applicaqt's 

points for seniority to his grade on the written 

examination. . . . 

we are not aware of irny case in which a Texas court considered 

whether article 1269m limi~:s promotions to persons in the next Lowest 

classification who are re':eiving the highest longevity pay. Texas 

courts, however, have stated that firemen's civil service examinations 

are open to all persons employed for two (2) years in the next lower 

grade except that a civil s,ervice commission may extend examinations 

to members in both the fi::st and second lower grades to provide an 

adequate number to take an examination, and those courts made no 

mention Of a requirement tt.at a fireman be 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'd n.r.e.) (position of 

Pipeman and Ladderman is immediately below that of ~Ch&ffer but 

applicant who had not been c,Lassified as Pipeman and Ladderman for two 

years was refused examination). 

The provisions of article 1269m relating to promotion examinations have been described since 1976 in 22 Texas Practice, Municipal 

p. 2604 
Honorable Dale Henna - Page 4 (JM-582) 

Law & Practice, where sec::%on 243 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 step within a classification to qualify 

to take e promotion exeminstion, it would have expressly so provided 

in the stetute. 

You ask additional questions which we do not enswer, because they 

are not relevant to our conclusion on the eligibility of firemen to 

take promotion examinations for positions in higher classifications. 

SUMMARY 

Under the Ztremen's and Policemen's Civil 

Service Act, ert:.cle 1269m, 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 truly your , LLh . 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairmen, Opinion Committee 

Prepared by Nancy Sutton 

Assistant Attorney General 

p. 2605