Texas Attorney General Opinion: JC-340 Page: 2 of 4
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The Honorable Jim Solis - Page 2
requires no examination, but is automatic upon the completion of five years of service. Police
Officers III are "[a]ll police officers who have five (5) or more years of continuous service with the
San Benito Police Department." Id. Given that these ranks are, within the relevant scheme, merely
salary steps rather than distinct classifications, we agree with your suggestion that "both Police
Officers II and III are eligible for... promotion" to the rank of sergeant on the basis of competitive
examination.2
Chapter 143 of the Local Government Code, the Municipal Civil Service Act (the "Act"),
is intended "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." TEX.
Loc. GOV'T CODE ANN. 143.001(a) (Vernon 1999). To that end, a city covered by the Act "is
required to develop a classification plan and establish rules regarding promotion within its police
and fire departments." Klinger, 902 S.W.2d at 671. "A fundamental principle of civil service is that
appointments must be made according to merit and fitness, ascertained by competitive
examinations." Id. In order to be eligible to take such an examination, a police officer must "for at
least two years immediately before the examination date [have] continuously held a position in the
classification that is immediately below, in salary, the classification for which the examination is
to be held." TEX. Loc. Gov'T CODE ANN. 143.031 (Vernon 1999) (emphasis added).
In interpreting the parallel section of the Act dealing with fire fighters, this office held that
it permitted all fire fighters within the immediately lower classification who had two years of
continuous service to take the promotional examination, regardless of whether they were "in the
highest salary step within [the] classification." Tex. Att'y Gen. Op. No. JM-582 (1986) at 3.
On the other hand, the Third Court of Appeals in 1995 held that a fire fighter employed by
the City of San Angelo at the rank of Fire Fighter II, who had been so employed for less than two
years at the time that a promotional examination for the position of Driver ought to have been given,
had suffered no harm from the city's delay, because at the relevant time he was not eligible to take
the examination. Klinger, 902 S.W.2d at 674. In so holding, the court rejected the fire fighter's
argument "that Fire Fighter Recruit, Fire Fighter I, and Fire Fighter II actually comprise three stages
of only one classification" and that consequently the fire fighter's "combined service in the three
categories satisfied the statutory requirements and rendered him eligible for promotion and
examination." Id. In the court's view, this argument asked it "to disregard the City's designated
classifications and consider them merely 'stages' within one class." Id. at 675. The implications
of Klinger for the instant case are clear. If Police Officer II and Police Officer III in the City of
San Benito were, as the Court of Appeals held Fire Fighter I and Fire Fighter II in San Angelo to be,
"separate classifications," id., then pursuant to section 143.031 of the Local Government Code only
those officers in the higher classification of Police Officer III would be eligible to take the sergeant's
examination.
2Letter from Honorable Jim Solis, Chair, House Committee on Economic Development, to Honorable John
Cornyn, Texas Attorney General (Sept. 11, 2000) (on file with Opinion Committee).(JC-0340)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-340, text, February 12, 2001; (https://texashistory.unt.edu/ark:/67531/metapth274649/m1/2/: accessed May 22, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.