Lee v. City of Houston
| Decision Date | 06 March 1991 |
| Docket Number | No. C-8285,C-8285 |
| Citation | 807 S.W.2d 290 |
| Parties | Richard W. LEE, et al., Petitioners, v. The CITY OF HOUSTON, et al., Respondents |
| Court | Texas Supreme Court |
This cause requires us to examine the scope of the Fire Fighters' and Police Officers' Civil Service Act, formerly Tex.Rev.Civ.Stat.Ann. art. 1269m, 1 now codified at sections 143.001-143.134 of the Texas Local Government Code ("the Act"). Petitioners, officers in the Houston Police Department, assert that the Act entitles them to promotion with back pay, in addition to declaratory and injunctive relief. The court of appeals reversed the trial court's judgment granting the requested relief, and rendered a take-nothing judgment against the police officers. 762 S.W.2d 180 (1988). In so ruling, the court of appeals held that the Act applies only to positions requiring the performance of law enforcement duties. Id. at 186-87. Because we disagree with that construction of the Act, we reverse the judgment of the court of appeals and remand the cause to the trial court for entry of judgment in accordance with this opinion.
The actions challenged in this suit reflect the City of Houston's ongoing effort to "civilianize" the Houston Police Department (HPD). The court of appeals opinion sets out the pertinent aspects of that effort. In short, the City placed unclassified civilians in managerial positions traditionally held by classified police officers. Petitioners allege that those placements contravened the Act.
The purpose of the Act, as stated in section 143.001, 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." To that end, the Act requires the city council, or other legislative body, to provide by ordinance for the classification of all fire fighters and police officers; that is, to place all such officers within the protection of a civil service system. Section 143.021. The proper boundaries of that system, however, are unclear.
In its original form, the Act defined "policeman" as
any member of a Police Department who draws compensation for his services as a member of said department.
Tex.Rev.Civ.Stat.Ann. art. 1269m, § 2, Act of June 2, 1947, 50th Leg., R.S., ch. 325, 1947 Tex.Gen.Laws 550, 551. Applying that definition, courts uniformly rejected attempts to remove any police department positions from civil service protection; all employees were protected by the Act. See City of San Antonio v. Handley, 308 S.W.2d 608, 610 (Tex.Civ.App.--San Antonio 1957, writ ref'd), and cases cited therein.
With a 1957 amendment, however, the Act's definition of "policeman" became less clear, encompassing
any member of the Police Department appointed to such position in substantial compliance with the provisions of Sections 9, 10, and 11 of this Act ...
Act of June 6, 1957, 55th Leg., R.S., ch. 391, § 1, 1957 Tex.Gen.Laws 1171. 2 Sections 9, 10, and 11 of article 1269m required competitive examinations for appointment to positions in the police department. The codified version of that language, located at section 143.003(5) of the Local Government Code, provides simply that a "police officer" is one who was appointed in substantial compliance with chapter 143 of the code. Thus, since 1957, the Act's most important definition has been circular. Section 143.003(5) states, in essence, that the Act covers whomever the Act covers. 3
In the years since 1957, a number of courts have addressed questions regarding the coverage of the Act. Almost all of those cases, however, have involved individuals employed prior to 1957, who automatically maintained their civil service status after the amendment. See, e.g., City of San Antonio v. Carr, 161 Tex. 155, 338 S.W.2d 122, 124 (1960); Clack v. City of San Antonio, 452 S.W.2d 502, 503 (Tex.Civ.App.--San Antonio 1970, writ ref'd n.r.e.).
One prior court has probed the impact of the 1957 amendment. In City of Wichita Falls v. Harris, 532 S.W.2d 653 (Tex.Civ.App.--Fort Worth 1975, writ ref'd n.r.e.), the City had hired a "fire training specialist" without following the procedures set out in the Act for the hiring of classified officers. Eight members of the fire department then brought suit to void the city's appointment. The trial court found that the new position fell within the coverage of the Act. In reviewing that finding, the court of civil appeals noted the fundamental circularity of the Act's terms:
If the Act is construed strictly it would mean that the City could employ new firemen who would not be under Civil Service by simply not giving them an examination. The City acknowledges that this is obviously not the intent of the legislature.
Id. at 657. To avoid defeating the intent of the legislature, the court construed the Act as a whole. Looking to the job description for the new position, the court observed that "a person holding the position must have knowledge of the principles and practices of fire prevention and suppression." Id. at 656. On that basis, the court affirmed the trial court's finding that the position was within the ambit of the Act.
The court of appeals in the present case took a different approach. While noting that the Act should be viewed as a whole, the court placed special reliance on the predecessor to section 143.023(e), which now provides:
An applicant may not be certified as eligible for a beginning position with a police department unless the applicant meets all legal requirements necessary to become eligible for future licensing by the Commission on Law Enforcement Officer Standards and Education.
The only positions that require law enforcement training, the court reasoned, are those that involve traditional law enforcement duties. Thus, the court concluded that the Act encompasses only those employees who actually do "police work;" that is, those who enforce the law, make arrests, and conduct criminal investigations. We disagree.
Nothing in either the language or the history of section 143.023(e) evinces a legislative intent to limit the coverage of the Act. The legislature adopted that provision in 1985, almost forty years after it originally passed the Act. Tex.H.B. 1657 Act of May 26, 1985, ch. 910, § 4, 69th Leg., R.S., 1985 Tex.Gen.Laws 3046, 3047. If, in passing H.B. 1657, the legislature had intended to restrict the coverage of the Act, it would have amended the statutory provision which purports to establish the Act's scope--namely, section 2 of article 1269m, now codified at section 143.003(5) of the Local Government Code. Notably, on the day after it took final action on H.B. 1657, the 69th Legislature demonstrated that it knew full well how to alter the coverage of the Act. With its adoption of S.B. 540, the legislature extended the coverage of the Act to include specialized police forces, such as park police, airport police, and city marshals, in any city having a population of 1,500,000 or more. Tex.S.B. 540, Act of May 27, 1985, ch. 958, § 22, 69th Leg., R.S., 1985 Tex.Gen.Laws 3227, 3241. 4 To do so, the legislature amended section 2's definition of "policeman" by adding a reference to section 14B, a new section governing such police forces, now found at section 143.103 of the Local Government Code. H.B. 1657, in contrast, did not mention section 2.
The City argues that a broad construction of the Act would bring section 143.023(e) into conflict with the Act's objective, stated in section 143.001, of promoting efficiency in the police force. If only licensed police officers can hold managerial positions, the argument goes, then the HPD will be unable to utilize the talents of civilians. The premise of that argument is invalid. Section 143.023(e) does not require that all applicants be licensed police officers. Rather, that section requires, by its terms, that applicants meet the requirements necessary to become eligible for future licensure. Any civilian meeting those requirements may apply for a beginning position; and once hired, that individual may become eligible for promotional positions. Under the Act, promotions are determined by performance on promotional examinations, for which any classified employee--licensed or unlicensed--may sit, as long as the employee meets certain basic requirements. Section 143.028.
Certainly, there might be instances in which a police department would prefer to hire someone from outside the department, rather than to promote from within. We must presume, however, that the legislature took that possibility into account when it created the Act. Our function is not to question the wisdom of the statute; rather, we must apply it as written. Jones v. Del Andersen and Associates, 539 S.W.2d 348, 351 (Tex.1976). Moreover, the legislature might reasonably have concluded that the goal of efficiency would be well served by requiring merit-based promotions within the department, rather than giving the department a free hand to hire from without. See Note, Absolute Preferences in Municipal Civil Service Appointments: The Unresolved Conflict With Municipal Discretion, 64 Mich.L.Rev. 891, 896-97 (1966).
Other provisions, in addition to section 143.023(e), indicate that the legislature intended the Act to have broader application than the court of appeals suggests. Section 143.025(b) requires all applicants to take tests based on "police work and work in the police department," suggesting that the Act's reach extends beyond the performance of traditional "police work." Section 143.102 gives the Chief of Police of a large municipality authority to appoint persons to certain command staff positions, 5 suggesting that the Act would otherwise require competitive testing for those...
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