Richard W. LEE, et al., Petitioners, v. The CITY OF HOUSTON, et al., Respondents.
No. C-8285.
Supreme Court of Texas.
March 6, 1991.
Rehearing Overruled April 24, 1991.
807 S.W.2d 290
Clarence A. West, John E. Fisher, Jerry E. Smith, Robert J. Collins, Houston, for respondents.
OPINION
MAUZY, Justice.
This cause requires us to examine the scope of the Fire Fighters’ and Police Officers’ Civil Service Act, formerly
The aсtions 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
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.
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
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
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
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
We recognize that this holding may not resolve all doubts as to whether the Act covers particular positions. However, the legislaturе‘s failure to draw a bright line does not, in itself, authorize a court to draw one of its own. It is the obligation of the legislature, rather than the courts, to develop a workable definition of “police officer.” See
When the duties of a particular position fall outside the scope of the Act, the City may abolish the position, provided it does so in good faith. Moncrief v. Tate, 593 S.W.2d 312 (Tex.1980). As long as the position remains within the civil service system, however, any person holding the position is entitled to the full protection of the Act.
One critical aspect of civil service protection is the right to seek promotion by way of competitive examinations.
Evidence in the present case indicates that the City “declassified” certain top-level job assignments within the HPD. The trial court found that four newly-hired, unclassified employees were performing the same duties, and exercising the same supervisory responsibilities, as deputy chiefs of police, while five others assumed the duties and responsibilities of lieutenants. The unclassified employees occupy positions which involve the supervision of classified police and which are thus integral parts of the HPD‘s civil service hierarchy. Accordingly, the placement of unclassified employees in those positions contravened the Act.
We do not hold that every high-level position in a police department must be held by a classified employee. If a particular job assignment requires no knowledge of police work and work in the police department, and entails no supervision of classified officers, the position need not be classified. Thus, the Act does not necessarily рrohibit the vertical declassification of certain subdivisions within the department. Nor does the Act prohibit the holder of a police license from assuming a job assignment outside of the civil service system, when the assignment requires no knowledge of police work and work in the police department, as defined above.
The Act does, however, prohibit horizontal declassification across upper levels of bureaucratic subdivisions, when classified employees hold subordinate positions within those subdivisions. The removal of such upper-level positions from the civil service system would expose critical job assignments to political influence, and would obstruct the upward progress of classified
We hold that the challenged placements contravened the Act‘s requirement that all covered positions be filled in accordance with the statutory terms.
Dissenting opinion by GONZALEZ, J., joined by CORNYN, J.
GONZALEZ, Justice, dissenting opinion.
Does the law mandate that a police officer who knows nothing about mechanics be promoted over a civilian master mechanic to be head of the automobile fleet maintenance department of the City of Houston Police Department (HPD)? Did the legislature mandate that only a police officer can supervise other police officers, even if the task at hand requires no special law enforcement skills, or that only a police officer can be in charge of the police computer department, police garage, or Police Training Academy? These absurd consequences flow as a result of the majority opinion and are not supported by logic, prior case law, the statute, or the history of the statute.
I agree with the court of appeals that the Firemen‘s and Policemen‘s Civil Service Act1 (the Act) applies only to positions requiring performance of traditional law enforcement duties such as making arrests, enforcing the law and conducting investigations. Moreover, I do not believe that there has been a showing that any “classified position” has been lost. No one lost their job as a result of the ordinances, and the number of positions within a classifica
The Act provides for the classification of all policemen within the department, and for the promotion of policemen according to their position on eligibility lists compiled from the results of competitive examinations. The Act provides that, except for a few narrow exceptions, “an existing position or classification or a position or classification created in the future either by name or by increase in salary may be filled only from an eligibility list that results from an examination hеld in accordance with this chapter.” Code
In recent years, the trend in the HPD has been to “civilianize” the police department: that is, to hire additional civilians throughout the department for managerial and technical roles in order to free up trained police officers for the police work that only classified law enforcement personnel can do. The city ordinances have ranked Houston police officers below the non-classified chief of police in the following classifications, from highest to lowest rank: assistant chief, deputy chief, captain, lieutenant, sergeant, police officer, and probationary police officer. In my opinion, these are the career ladder positions that the Act endeavors to protect.
The city ordinances that the petitioners assert are in conflict with the Act were passed between 1982-1985.3 These ordinances created nine “civilian” departments or job assignments encompassing some of the duties formerly performed by classified police officers. The ordinances created four police administrator divisions: Planning and Research, Crime Information Center, Police Garage, and the Police Training Academy. The duties assumed by police administrators were formerly assigned to captains. The ordinances also created the following job assignments: two assistant police administrators; urban policy planner IV, an administrative assistant IV, and an education coordinator in the police academy, each of which is roughly equal in salary and assignment to positions held by a lieutenant.
In 1986, the city council passed City Ordinance 86-1278, which implemented a plan for reorganization by creating four new bureaus in HPD: Management Information, Fleet Maintenance, Career Development, and the Office of Planning and Research. The duties and functions of these bureaus were taken from other departments which were assumed into these new bureaus and four civilian administrators were promoted to head these bureaus. Before this reorganization, bureaus were traditionally headed by deputy chiefs.
The petitioners in this case are HPD police officers of various ranks who are at or near the top of the promotion eligibility list for their respective rank. They allege that the hiring of civilians to fill the new positions violates the Act and assert that had the Act been followed, each would have been promoted either into one of the newly created job assignments or into one of the positions vacated by officers who were themselves рromoted.
The petitioners argued in their application for writ of error that the mandatory promotion procedures of the Act govern all positions in the HPD,4 not merely those which entail traditional law enforcement duties. The Act provides:
The commission shall provide for the classification of all fire fighters and police officers. [
Code section 143.021(a) .]5[A]n existing position or classification or a position or classification created in the future either by name or by increase in salary may be filled only from an eligibility list that results from an examination held in accordance with this chapter.” [
Code section 143.021 .]6An eligibility list for a beginning position in the fire or police department may be created only as a result of a competitive examination held in the presence of each applicant for the position.... A person may not be appointed to the fire or police department except as a result of the examination. [
Code section 143.025(b) .]7
Each person employed by the police department who is a member of the technical or communications class is eligible
Each provision of this chapter relating to eligibility lists, examinations, appointments, and promotions applies to the appointment or promotion of members of the technical, communications, and uniformed and detective classes within the member‘s respective class. [
The petitioners assert that the court of appeals’ construction of “classified positions” as only those positions which require the performance of police work, cannot be harmonized with the broad language of these sections. I disagree. The Act provides that each “police officer is classified as prescribed by this subchapter and has civil service protection.”
The majority declares that this definition is circular, arguing that the Act can be avoided by not requiring any standards of applicants. But the fact that the Act can be given one absurd construction does not justify the opposite extreme. From the legislative history and case law concerning who was covered by the Act formerly, along with an analysis of the requirements to become a “police officer” covered by the Act, we can determine the intended scope of the Act.
The earliest predecessor to this section, Article 1269m, section 2, broadly defined “policeman” as “any member of the police department who draws compensation for his services as a member of said department.”12 Act of June 2, 1947, ch. 325, § 2, 1947 Tex.Gen.Laws 550, 551. This definition was construed by some courts to include: juvenile social workers, switchboard operators, linemеn, clerks, mechanics and other employees incidental to the operation of the police department. See City of San Antonio v. Handley, 308 S.W.2d 608 (Tex.Civ.App.—San Antonio 1958, writ ref‘d); City of Wichita Falls v. Cox, 300 S.W.2d 317 (Tex.Civ.App.—Fort Worth 1957, writ ref‘d n.r.e.); City of San Antonio v. Hahn, 274 S.W.2d 162 (Tex.Civ.App.—Austin 1954, writ ref‘d n.r.e.); City of San Antonio v. Wiley, 252 S.W.2d 471 (Tex.Civ.App.—San Antonio 1952, writ ref‘d n.r.e.).
In reaction to these cases, the legislature narrowed the scope of coverage of the Act by changing the definition of “policeman.” In 1957, Section 2 of the Act was amended to define “policeman” as “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 1957, ch. 391, § 1, 1957 Tex.Gen.Laws 1171. Sections 9, 10, and 11 provided some of the qualifications for entry positions as a policeman. After the 1957 amendment, the Act mandates that we look to the qualifications for appointment to the beginning position of police officer to determine the Act‘s coverage.13
The majority concludes that because the Act includes a requirement that applicants bе tested on their knowledge of “police work and work in the police department,” we must expand the Act‘s coverage beyond traditional law enforcement positions. This section suggests that a good officer has to know something of the department bureaucracy, but does not mean that department bureaucrats must be police officers. Otherwise, it can just as easily be argued that since the statute requires that all applicants must be able to speak English14, all English speakers are covered by the Act.
Finally the Act requires all beginning police officers to meet the “legal requirements necessary to become eligible for future licensure by the [Texas] Commission on Law Enforcement Officers Standards and Education.”
This common sense interpretation is consistent with the legislative and judicial history of the Act. Favoring a statutory construction without discriminatory implications, I am convinced that it is the nature of the job and not the qualifications of one‘s subordinates that determines whether a supervisor must be a police officеr. If an officer is performing a job that does not require traditional law enforcement skills, it makes no sense to require that his or her supervisor must be a law officer. I would hold that it is only those supervisory positions which require the supervision of traditional law enforcement functions that are “classified” supervisory positions.
I disagree that the mere fact that a supervisor supervises classified police officers mandates that the supervisor must also be a police officer as defined by statute. In my opinion, the legislative and judicial history clearly indicates that the 1957 amendment operated as a legislative overruling of the pre-1957 constructions of the Act, and narrowed the scope of the application of the Act to police department employees who perform law enforcement duties.
Petitioners argue that the specific inclusion of specialty positions shows that the Act must have broader application.18 The fact that the legislature must affirmatively аct to extend the Act protection to a class of police department employees implies legislative intent that the Act does not automatically extend to all employees. Also, petitioners ignore the fact that the same statutes expressly preclude the exact “crossover promotions” which petitioners are now seeking:
A member of a particular class is not eligible for promotion to a position outside that class and lateral crossover by promotion by a member of one class to another class is prohibited. If a member of one class wants to change classes, the member must qualify and enter the new
class at the lowest entry level of that class.
Each provision of this chapter relating to eligibility lists, examinations, appointments, and promotions applies to the appointment or promotion of members of the technical, communications, and uniformed and detective classes within the members’ respective class.
Furthermore, as a matter of law there was not a fаilure to fill a vacancy within a classification in violation of the Act. The Act requires the city council to establish by ordinance the classification of police officers, and the number of positions in each classification.
In the absence of a clear definition of “police officers,” courts should determine the scope of the Act by viewing the statute as a whole. The Act applies to any position requiring a competitive examination.21 (Citations omitted.) Such an examination tests an applicant‘s “knowledge of and qualifications for . . . police work and work in the police department,” as well as the applicant‘s “general education and mental ability.” (Citations omitted.) We conclude, then, that the Act applies to any position requiring proficiency in all of those areas. If a particular position requires substantial knowledge of “police work and work in the police department,” then it must be classified.
At 294.
Who determines that a particular position requires knowledge of “police work and work in the police department?” The Mayor? City Council? Police Chief? Police Unions? Civil Service Commission? The Courts?
By its very nature, all supervisory positions require that the supervisor know something about the work he or she is supervising whether in the police department or elsewhere. Does today‘s opinion stand for the proposition that all supervisory positions within the police department will always be covered by the Act?
I am also concerned that the majority overestimates the effectiveness of its new standard. I disagree that “the standard we discern today should, in most cases, produce an unequivocal answer as to whether a particular position must be classified.” At 295. The majority‘s conclusion that “the duties of an ordinary clerk-typist in the police department do not require knowledge of police work and work in the police department” is not so obvious under this standard. It seems that all employees of the police department must have some knowledge of police work and work in the police department so a court could conclude that the clerk-typist position was classified under this standard. Furthermore, the argument that the conjunction “and,” at 294 n. 7, solves the problem misses the point—the proposed standard is still confusing and subject to broad interpretation.
The court of appeals’ common sense reading of the statute was much more likely to result in unequivocal answers as to whether a position was classified. The court of appeals’ standard established that only positions requiring performance of law enforcement duties or supervision of police officers performing law enforcement duties were classified. 762 S.W.2d at 187. Under this standard, there is no way a court could find that a clerk-typist position was classified. Thus, I agree with the court of appeals opinion and would аffirm the court of appeals judgment.
Finally, I am concerned with the procedural disposition of this case. The court “hold[s] that the challenged placements contravened the Act‘s requirement that all covered positions be filled in accordance with the statutory terms,” and “reverse[s] the judgment of the court of appeals and remand[s] the cause to the trial court for entry of judgment in accordance with this opinion.” At 296. This disposition is confusing. What does this mean? What is the trial court to do? The only guidance given to the trial court to determine if the positions are classified is the majority‘s so-called new standard: Whether the positions requires proficiency in “knowledge of and qualifications for police work and
There is no purpose in our remanding this cause to the trial court for it to “enter” (render) a judgment that we can render. Alternatively, if the trial court is to hear more evidence regarding whether the positions in question are classified in light of the court‘s new nebulous standard, then the whole case should be remanded, in the interest of justice, for new trial. Also, the court of appeals never reached the city‘s factual insufficiency points and today‘s opinion denies the city their right to a meaningful appellate review.
In conclusion, the majority‘s convoluted opinion muddles the law and is micro management at its worst. Absent corrective legislation, the court‘s failure to give clear guidance to the bench and bar will not only serve to keep this case and others like it in the courts for some time to come but will also thwart the Act‘s purpose of facilitating efficient police and fire departments.
For all of these reasons, I dissent.
CORNYN, J., joins in this dissent.
OPINION ON MOTION FOR REHEARING
GONZALEZ, Justice, dissenting.
In its motion for rehearing, among other things, the City of Houston alleges that the court: (1) failed to apply the proper standard of review; (2) misinterpreted the purpose and significance of section 143.023(e) of the Fire Fighters’ and Police Officers’ Civil Service Act1 (the Act); (3) erred by judicially amending the Act to add words not expressly or necessarily implied in the language of the Act; and (4) that the majority opinion is internally inconsistent. I agree.
The constitution grants broad discretionary powers to home-rule cities subject to the limitation that ordinances must not be inconsistent with the constitution or other state statute.
A limitation on the power of home rule cities by general law or by charter may be either an express limitation or one arising by implication. “Such a limitation will not be implied, however, unless the provisions of the general law or of the charter are clear and compelling to that end.” [Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 649 (1951)]. The intention of the Legislature to impose such limitation must “appear with unmistakable clarity.” [City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.1964)].
523 S.W.2d 641, 645 (Tex.1975) (emphasis added). I agree with the City that the petitioners have failed to meet this rigorous burden.
The court holds that the Act proscribes the City‘s attempt to restructure the police department by ordinance. The City does not advocate an absurdist construction which would “nullify the Act as a whole.” 807 S.W.2d 292 n. 3. There is no dispute that the Act is clearly intended to protect traditional law enforcement positions. The issue here is whether the Act clearly extends coverage beyond such positions. The majority opinion does not demonstrate how this legislative intent appears “with unmistakable clarity.” To the contrary, it is replete with observations about the lack of a clear expression of legislative intent. For example the opinion states:
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 not clear.
807 S.W.2d at 291 (emphasis added).
With a 1957 amendment, however, the Act‘s definition of “policeman” [i.e., those covered by the Act] became less clear.... Thus, since 1957, the Act‘s most important definition has been circular.
807 S.W.2d at 291 (emphasis added).
Since the adoption of the new definition of “policeman,” the legislature has amended the statute at least thirty-two times. In none of those instances, however, did the legislature address the opaqueness of the statute‘s most basic provision. Until the legislature clearly defines the scope of the Fire Fighter‘s and Police Officers’ Civil Service System, courts will be left to apply the vague standard we discern today to increasingly complex bureaucracies.
807 S.W.2d at 294 n. 9 (emphasis added). Thus the court concedes that there is no evidence of a legislative intent that the Act must cover any supervisor of a сlassified officer.
In reaching its decision, the court announces a two-prong test, but fails to apply it to supervisors. Instead, the court announces an additional rule that categorically, supervisors of classified employees must themselves be covered by the Act. It does so based on a concept that “vertical declassification” is permissible while “horizontal” declassification is not. As the City correctly points out in its motion for rehearing, these concepts or categories are nowhere to be found in the language of the Act nor its legislative history. They are of the court‘s own creation.
The Act unmistakably expresses a policy of providing a career ladder for “police officers” free from political influence.
The majority‘s infringement on local autonomy is unwarranted absent a clear expression of legislative intent to that effect. For these reasons and those discussed in my earlier dissenting opinion, I would grant the motion for rehearing.
CORNYN, J., joins this opinion.
Notes
J. Mauzy: Counselor, are you taking the position that the state civil service law applies to every employee of the police department?
Attorney for Petitioners: No your honor, I am not.
J. Hecht: You do agree that there are some employees of the police department who are not covered by the statute, and now the squabble is which ones are which?
Attorney for Petitioners: I think that is a possible interpretation.
J. Hecht: In essence there are some employees of a police department who are not covered by the statute? That is your view?
Attorney for Petitioners: I think that probably is the correct interpretation.
A person who is 45 years of age or older may not be certified for a beginning position in a police department. A person who is 36 years of age or older and under 45 may not be certified as eligible for a beginning position in a police department unless the person has at least five years’ experience as a peace officer or at least five years’ of military experience.
The commission shall set the age and physical requirements for applicants for beginning and promotional positions in accordance with this chapter. The requirements must be the same for all applicants.
Moreover, there is no horizontal classification in the Act that is not satisfied by the Houston system of providing for the various ranks of the police officers. The Act does nothing more than require that classified police officers be permitted to advance in rank to the same extent after the reorganization of the department as before. The Houston ordinances satisfy this requirement.