### ATTORNEY GENERAL

OFTEXAS 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 acivil service commissioner ofamunicipality governed by chapter 143 of the Local Government Code may be appointed totwo ormore consecutive terms, and ifnot, whether the reappointment of acommissioner constitutes acriminal offense.’ Chapter 143 of the Local Government Code relates to “municipal civil service.” TEX.Lot. GOV’TCODEANN.95 143.001-.354 (Vernon 1999 & Supp. 2004). Itspurpose is “to secure efficient fire and police departments composed ofcapable 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 apopulation of 10,000 or more, a paid fire department and police department, and has voted to adopt [chapter 1431orthe law codified by [chapter 1431; or (2) whose election to adopt [chapter 1431and 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). Acivil service commission consists of “three members appointed bythe 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 apublic 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 RequestLetter].The Honorable Bruce Isaacks - Page 2 (GA-0246)

Section 143.006(c) clearly requires that aperson appointed tothe commissionmay‘not have held a public office” during the past three years. TEX.Lot. GOV’TCODEANN. 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 isplain and unambiguous on its face will generally be construed aswritten. See Fitzgerald v.Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,865-66 (Tex. 1999) (where astatute 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 acivil service commissioner holds apublic office, he or she is not eligible for reappointment to a second consecutive term. The test for determining whether aperson holds apublic office was formulated by the Texas Supreme Court in 1955. InAldine Independent School District v.Standley, 280 S.W.2d 578 (Tex. 1955), the court said that

the determining factor which distinguishes apublic 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 ofthe control ofothers. Aldine, 280 S.W.2d at 583 (emphasis added) (citation omitted). In our view, itis 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’TCODE ANN.5 143.006(b) (Vernon 1999). Members do not serve atthe pleasure ofthe 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 isguilty ofmisconduct in office”; or (2) if“acommission member isindicted 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 1431and 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 ahearing 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 ajust and fair decision.” Id. $ 143.010(g). “Each concurring commission member” is directed to “sign adecision 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 apublic office and may not be reappointed to asecond consecutive term as civil service commissioner.The Honorable Bruce Isaacks - Page 3 (GA-0246)

You also ask whether the reappointment of acommissioner constitutes acriminal offense. See Request Letter, supra note 1,at 1. Section 143.006(h) ofthe Local Government Code provides:

The chief executive ofamunicipality or amunicipal official commits an offense if the person knowingly or intentionally refuses to implement this chapter or attempts toobstruct the enforcement ofthis chapter. An offense under this subsection is a misdemeanor punishable by atine of not less than $100 or more than $200. TEX.UC. GOV’TCODE ANN.5 143.006(h) (Vernon 1999). Itisnot 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 orintentionally.” Id. The existence ofsome confusion onthe issue under consideration, as evidenced by your request to us, indicates that even ifareappointment could be characterized as arefusal to implement or an attempt to obstruct, itmight be difficult to demonstrate the existence of intent. In any event, whether to proceed in such acase is amatter 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