ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

September 2,2004 

The Honorable Bruce Isaacks 

Denton County Criminal District Attorney 

Post Office Box 2344 

Denton, Texas 76202 

Opinion No. GA-0246 

Re: Whether a civil service commissioner of a 

municipality governed by chapter 143, Local 

Government Code, may be appointed to two or 

more consecutive terms, and if not, whether the 

reappointment of a commissioner constitutes a 

criminal offense (RQ-0201-GA) 

Dear Mr. Isaacks: 

You ask whether a civil service commissioner of a municipality governed by chapter 143 of 

the Local Government Code may be appointed to two or more consecutive terms, and ifnot, whether 

the reappointment of a commissioner constitutes a criminal offense.’ 

Chapter 143 of the Local Government Code relates to “municipal civil service.” TEX. Lot. 

GOV’TCODE ANN. 95 143.001-.354 (Vernon 1999 & Supp. 2004). Its purpose is “to secure efficient 

fire and police departments composed of capable personnel who are free from political influence and 

who have permanent employment tenure as public servants.” Id. $ 143.001(a) (Vernon 1999). 

Chapter 143 is applicable to any municipality that either (1) has a population of 10,000 or more, a 

paid fire department and police department, and has voted to adopt [chapter 1431 or the law codified 

by [chapter 1431; or (2) whose election to adopt [chapter 1431 and whose acts subsequent to that 

election were validated by the law enacted by the Seventy-third Legislature in 1993. See id. 5 

143.002. After a municipality adopts chapter 143, a “Fire Fighters’ and Police Officers’ Civil 

Service Commission is established in the municipality.” Id. 5 143.006(a). 

A civil service commission consists of “three members appointed by the municipality’s chief 

executive and confirmed by the governing body ofthe municipality.” Id. § 143.006(b). “Members 

serve staggered three-year terms with the term of one member expiring each year.” Id. A person 

appointed to the commission must, inter al& “not have held a public office within the preceding 

three years.” Id. 5 143.006(c)(5). You ask whether that provision means that an individual may not 

be reappointed to a second consecutive three-year term. See Request Letter, supra note 1, at 1. 

‘See Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable Greg 

Abbott, Texas Attorney General, at 1 (Mar. 2, 2004) ( on file with Opinion Committee, ako available at 

www.oag.state.tx.us) [hereinafta Request Letter]. 
The Honorable Bruce Isaacks - Page 2 (GA-0246) 

Section 143.006(c) clearly requires that aperson appointed to the commissionmay‘not have 

held a public office” during the past three years. TEX. Lot. GOV’T CODE ANN. 5 143.006(c)(5) 

(Vernon 1999). The relevant language does not state that its application is limited to nnotherpublic 

office. Rather, it applies to any “public office.” See id. A statute that is plain and unambiguous on 

its face will generally be construed as written. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 

996 S.W.2d 864,865-66 (Tex. 1999) (where a statute is clear, courts will not look to extrinsic aids 

such as legislative history to determine the legislature’s intent); see also Bruzos River Auth. v. City 

of Graham, 354 S.W.2d 99, 109 (Tex. 1961). Thus, if a civil service commissioner holds a public 

office, he or she is not eligible for reappointment to a second consecutive term. 

The test for determining whether a person holds a public office was formulated by the Texas 

Supreme Court in 1955. In Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 

1955), the court said that 

the determining factor which distinguishes a public officer from an 

employee is whether any sovereign function of the government is 

conferred upon the individual to be exercised by him for the benefit 

of the public largely independent of the control of others. 

Aldine, 280 S.W.2d at 583 (emphasis added) (citation omitted). In our view, it is clear that members 

of a civil service commission hold an “office” under the Aldine standard. They are appointed to 

fixed three-year terms. See TEX. Lot. GOV’T CODE ANN. 5 143.006(b) (Vernon 1999). Members 

do not serve at the pleasure of the chief executive or governing body. Under chapter 143, they may 

be removed in only two ways: (1) if “the governing body of the municipality finds that a 

commission member is guilty of misconduct in office”; or (2) if “a commission member is indicted 

or charged by information with a criminal offense involving moral turpitude,” and either pleads 

guilty to or is convicted of the offense. Id. 5 143.007(a)-(b). 

As a body, the commission is empowered to enact rules. See id. 5 143.008(a). ‘The 

commission or a commission member. may investigate and report on all matters relating to the 

enforcement and effect of [chapter 1431 and any rules adopted [thereunder] . . .” Id. 3 143.009(a). 

The commission may administer oaths, issue subpoenas, and depose witnesses. See id. $5 

143.009(b), .010(d). The commission is required to conduct a hearing whenever a “fire fighter or 

police officer wants to appeal to the commission from an action for which an appeal or review is 

provided by” chapter 143. Id. 5 143.010(a). The commission must “conduct the hearing fairly and 

impartially . and shall render a just and fair decision.” Id. $ 143.010(g). “Each concurring 

commission member” is directed to “sign a decision issued by the commission.” Id. 5 143.01 l(a). 

In sum, we believe it is clear that a municipal civil service commissioner holds a public 

office. A commission member serves for a fixed term, adjudicates rights and is subject to removal 

only for cause. Accordingly, it may fairly be said that a commissioner exercises his or her duties 

“largely independently of the control of others.” Aldine, 280 S.W.2d at 583. As a result, a civil 

service commissioner holds a public office and may not be reappointed to a second consecutive term 

as civil service commissioner. 
The Honorable Bruce Isaacks - Page 3 (GA-0246) 

You also ask whether the reappointment of a commissioner constitutes a criminal offense. 

See Request Letter, supra note 1, at 1. Section 143.006(h) of the Local Government Code provides: 

The chief executive of a municipality or a municipal official commits 

an offense if the person knowingly or intentionally refuses to 

implement this chapter or attempts to obstruct the enforcement ofthis 

chapter. An offense under this subsection is a misdemeanor 

punishable by a tine of not less than $100 or more than $200. 

TEX. UC. GOV’T CODE ANN. 5 143.006(h) (Vernon 1999). It is not clear whether the reappointment 

of a civil service commissioner to a second consecutive term would constitute a “refus[al] to 

implement” chapter 143 or an attempt to “obstruct the enforcement” of that chapter. Id. tj 

143.006(h). In addition, section 143.006(h) states that an offense occurs only if the person acts 

“knowingly or intentionally.” Id. The existence of some confusion on the issue under consideration, 

as evidenced by your request to us, indicates that even if a reappointment could be characterized as 

a refusal to implement or an attempt to obstruct, it might be difficult to demonstrate the existence 

of intent. In any event, whether to proceed in such a case is a matter squarely within prosecutorial 

discretion. 
The Honorable Bruce Isaacks - Page 4 (GA-0246) 

SUMMARY 

A person appointed to the civil service commission of a 

municipality may not be reappointed to a second consecutive term. 

Whether such areappointment constitutes acriminal offense depends 

upon a variety of factors, including whether the appointee acted 

knowingly or intentionally to violate the law, and thus cannot be 

determined here. 

Yours very truly, 

G ABBOTT 

Attorney General of Texas 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Rick Gilpin 

Assistant Attorney General, Opinion Committee