KP-0536

OCR transcription; preserved printed pages are authoritative

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TTOR
GENE
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TEXAS
KEN PAXTON ATTORNEY GENERAL OF TEXAS
September 30, 2026
The Honorable Ryan Guillen Chair, House Committee on Agriculture & Livestock Texas House of Representatives Post Office Box 2910 Austin, Texas 78768-2910
Opinion No. KP-0536
Re: Municipal authority over certain firefighter positions under the Texas Local Government Code (RQ-0609-KP)
Dear Representative Guillen:
You raise a series of questions related to civil service-classified firefighters currently assigned to serve at Valley International Airport ("VIA").1 As background, you explain that the City of Harlingen, a home-rule municipality, operates VIA pursuant to a certificate issued by the Federal Aviation Administration. Request Letter at 2. You tell us that in doing so, the City must provide aircraft rescue and firefighting ("ARFF") capabilities. Id. (referencing 14 C.F.R. § 139.319). The City complies with this mandate by assigning civil service-classified municipal firefighters to provide ARFF services. Id. You note, however, that the VIA board and airport director "have expressed interest in outsourcing" these services, "either by hiring non-civil service airport employees or by contracting with a private third-party provider." Id. at 3. To accomplish this, the firefighters currently assigned to work as ARFF personnel at VIA "would either be reassigned elsewhere within the [f]ire [d]epartment or subject to a reduction in force." Id.
Against this backdrop, you ask whether the City may eliminate the civil service-classified ARFF firefighter positions and create new ARFF firefighter positions outside the civil service system, or whether it may transfer the firefighters serving in the civil service-classified ARFF firefighter positions and fill the vacant positions with non-civil service employees or third-party contractors. Id. at 1. Assuming that the civil service-classified ARFF firefighters may be transferred, you also ask "[w]hether Chapter 143 of the Texas Local Government Code prohibits a municipal department such as the [VIA] ... from filling [the] ARFF vacancies with non-civil service personnel" or third-party contractors. Id. at 2. Lastly, you inquire as to whether a municipal airport's director has statutory authority to "remove" civil service-classified firefighters from their
1 See Letter from Hon. Ryan Guillen, Chair, H. Comm. on Agric. & Livestock, to Hon. Ken Paxton, Tex. Att'y Gen. at 1-2 (Aug. 1, 2025), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2025/ RQ0609KP.pdf ("Request Letter").

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ARFF positions and fill those positions with non-civil service employees or third-party contractors. Id.
Taken together, your four questions seek clarification regarding who has the authority to abolish or remove the City firefighters from their positions, and how vacancies resulting from those actions may be filled. See id. at 1-2. Significantly, however, your questions depend on the determination of disputed facts and the interpretation of several documents that our office does not construe. See Tex. Att'y Gen. Op. No. KP-0400 (2022) at 4 n.3. For example, in addition to adopting a civil service system, the City "has entered into a collective bargaining agreement with the" firefighters association.2 Request Letter at 2. And we understand that the City has entered into a memorandum of understanding with the VIA concerning the provision of fire personnel.3 We do not construe collective bargaining agreements or MOUs in the opinion process, however. See Tex. Att'y Gen. Op. No. KP-0479 (2025) at 2. Your questions also implicate certain City ordinances and City charter provisions, see Sossi Brief at 3-6, which we likewise do not construe in the opinion process, see Tex. Att'y Gen. Op. Nos. KP-0446 (2023) at 5, KP-0394 (2021) at 1.
While your questions relate to the City firefighters' provision of ARFF services, we lack general information regarding the fire department's organizational structure and how ARFF certification and airport duties are integrated into the City's civil service system. See generally Request Letter at 1-6. Indeed, it is unclear from the information provided to us whether the City's fire department has designated "ARFF firefighter positions," see, e.g., id. at 3, or whether certain firefighters merely "provide ARFF services at VIA" while performing other firefighter duties, as you indicate elsewhere in your letter, id. at 2. There are also multiple disputes about certain underlying facts that could impact any legal conclusion. For one, you tell us that the VIA "functions as a department of the [C]ity" and that "its operational oversight is semi-autonomous," id., yet in contrast, the VIA maintains that its board has "full supervision, control, and authority over the operation and maintenance of" the VIA "and all supporting properties," Esterly Brief at 2. But "this office cannot resolve disputed facts." Tex. Att'y Gen. Op. No. KP-0479 (2025) at 2.4
2 You and several briefers offer conflicting positions on the applicability of the CBA to the circumstances herein. Compare, Request Letter at 3, with Brief from George McShan, Airport Bd. Chairman, Valley Int'l Airport, to Off. of the Tex. Att'y Gen., Op. Comm. at 5-6 (Sept. 4, 2025) ("McShan Brief") (on file with the Op. Comm.), and Brief from Marv Esterly, Dir. of Aviation, Valley Int'l Airport, to Off. of the Tex. Att'y Gen., Op. Comm. at 2, 4 (Aug. 27, 2025) ("Esterly Brief") (on file with the Op. Comm.).
3 Multiple briefers likewise take different positions on the interpretation of this document and whether it is binding on the parties. Compare, Brief from Mark E. Sossi, Harlingen City Att'y, to Hon. Ken Paxton, Tex. Att'y Gen. at 4-5 (Aug. 25, 2025) ("Sossi Brief'') (on file with the Op. Comm.), with Esterly Brief at 2-5, and McShan Brief at 4-5.
4 We also note that you and the City support several key arguments and legal propositions with citations to case authorities that do not appear to exist. You suggest, for example, that a civil service "position may not be eliminated solely to remove the incumbent from civil service protection or to contract out a function historically performed by civil service personnel," citing to "City of Galveston v. Firefighters' Loc. Union No. 571, 233 S.W.3d 527, 532 (Tex. App .- Houston [14th Dist.] 2007, pet. denied)" in support of that proposition. Request Letter at 3. But the decision to which you refer is not available at the citation you provide, nor did our search for the decision yield any results. The same is true for "City of San Antonio v. Guerra, 976 S.W.2d 814, 816-17 (Tex. App .- San Antonio (continued ... )

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For these reasons, we cannot address your questions in a comprehensive manner, nor can we affirm the validity of any particular action taken by the City or the VIA. We will, however, attempt to provide general guidance regarding some of the purely legal issues involved. Specifically, we will address the abolishment of civil service positions, how vacancies in civil service positions arise, and how those positions must be filled. The information provided here is not intended to affirm the validity of any particular action taken by the City or the VIA.
The Fire Fighter and Police Officer Civil Service Act
We begin with a brief overview of Local Government Code Chapter 143, otherwise known as the Fire Fighter and Police Officer Civil Service Act ("the Act"). See City of Houston v. Clark, 197 S.W.3d 314, 315 (Tex. 2006). See generally TEX. LOC. GOV'T CODE §§ 143.001 -. 403. The Legislature enacted this chapter "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). The Act achieves this aim by providing that "positions in the fire and police departments of municipalities governed by [C]hapter 143 are classified, receive civil service protection, and are filled from promotion eligibility lists based on objective, merit-based qualifications and competitive testing." City of Round Rock v. Whiteaker, 241 S.W.3d 609, 617 (Tex. App .- Austin 2007, pet. denied) (citing TEX. LOC. GOV'T CODE § 143.021).
Relevant here, the Act applies to firefighters. See TEX. LOC. GOV'T CODE § 143.021(a). The Act defines "[f]ire fighter" in relevant part as "a member of a fire department who was appointed in substantial compliance with" Chapter 143. Id. § 143.003(4). This definition further specifies that the term "applies only to an employee of a fire department whose position requires substantial knowledge of fire fighting and who has met the requirements for certification by the Texas Commission on Fire Protection under Chapter 419[] [of the] Government Code." Id. § 143.003(4)(A). This includes an employee who performs fire suppression, fire prevention, fire training, fire safety education, fire maintenance, fire communications, fire medical emergency technology, fire photography, fire administration, or fire arson investigation. Id. § 143.003(4)(A)(i)-(x).
"Municipalities are not automatically governed by [C]hapter 143." Whiteaker, 241 S.W.3d at 617. Rather, the Act applies to certain municipalities with "a population of 10,000 or more" that "ha[ve] a paid fire department or police department[] and . . . ha[ve] voted to adopt" the Act. TEX. LOC. GOV'T CODE § 143.002(a)(1). You indicate that the City adopted the Act in 1990. Request Letter at 2. The Act thus governs the City, see Wilson v. Andrews, 10 S.W.3d 663, 668 (Tex. 1999),
1998, pet. denied)," which the City cites in its brief to illustrate "that municipal officials outside the chain of command of a Chapter 143 department lack authority to circumvent or supplant the powers granted to the department head." Sossi Brief at 5. This is only a small sample of the phantom citations we encountered in our review of the request letter and briefing in this matter. Citation to nonexistent case law is "a hallmark of generative AI use." Holmes v. Univ. of Tex. at Austin, No. 1:24-CV-1135-RP, 2026 WL 297630, at *5 (W.D. Tex. Feb. 4, 2026). As the Texas Committee on Professional Ethics explained in a recent advisory opinion, lawyers have an ethical obligation to independently verify generative AI outputs in their work product, and their failure to do so could run afoul of Texas State Disciplinary Rules of Professional Conduct, including but not limited to "Rule 1.01 (Competent and Diligent Representation), Rule 3.01 (Meritorious Claims and Contentions), Rule 3.03 (Candor Toward the Tribunal), and Rule 3.04 (Fairness in Adjudicatory Proceedings)." Tex. Comm. on Prof'1 Ethics, Op. 705, 88 Tex. B.J. 310, 312 (2025); TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.01, 3.01, 3.03, 3.04.

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and subjects the City "to the restrictions imposed" therein. Greater New Braunfels Home Builders Ass'n v. City of New Braunfels, 240 S.W.3d 302, 307 (Tex. App .- Austin 2007, pet. denied).
Abolishment
Your first question concerns the abolishment of civil service-classified firefighter positions.5 See Request Letter at 1. Subsection 143.021(a) of the Act requires a "municipality's governing body" to establish "classifications" for firefighters by ordinance and to "prescribe the number of positions in each classification." TEX. LOC. GOV'T CODE § 143.021(a). In doing so, a "governing body can create new positions or, within certain limitations, abolish them." Carr v. City of Fort Worth, 266 S.W.3d 116, 121 (Tex. App .- Fort Worth 2008, pet. denied). Indeed, subsection 143.085(a) specifically recognizes that "a municipality's governing body" may "adopt[] an ordinance that ... abolishes a fire ... department position." TEX. LOC. GOV'T CODE § 143.085(a). But it is well settled that a municipality that wishes to abolish a civil service position must do so "in good faith." City of San Antonio v. Wallace, 338 S.W.2d 153, 156-57 (Tex. 1960).
A municipality seeking to demonstrate that it abolished a civil service position in good faith "must show that civilianization would be more satisfactory to the public in general, that it will result in something more than monetary savings, and that the duties of the classified personnel were not merely transferred to others." Int'l Ass'n of Firefighters Loc. 624 v. City of San Antonio, 822 S.W.2d 122, 128 (Tex. App .- San Antonio 1991, writ denied) (collecting cases). Meeting this burden requires more than a "self-serving declaration" of the benefits of abolishment; rather, a municipality must provide "pertinent facts relating to the economy and efficiency of the change." Kiel v. City of Houston, 558 S.W.2d 69, 72 (Tex. App .- Houston [14th Dist.] 1977, writ ref'd n.r.e.). Accordingly, the City's governing body may abolish civil service-classified firefighter positions by enacting an ordinance to that effect, see TEX. LOC. GOV'T CODE §§ 143.021(a), .085, so long as it does so in good faith, see City of San Antonio v. San Antonio Firefighters' Ass'n, Loc. 624, 533 S.W.3d 527, 540 (Tex. App .- San Antonio 2017, pet. denied).
Vacancies
Some of your questions concern vacating or filling civil service-classified firefighter positions. See Request Letter at 2-3. In contrast to the abolishment of a civil service position, which occurs when such a position is eliminated, see supra p. 4, a vacancy in a civil service position "occurs when an existing position is vacated or a newly created position is established by ordinance," City of Fort Worth v. Nyborg, 999 S.W.2d 451, 455 (Tex. App .- Fort Worth 1999, pet. denied). As with abolishment, subsection 143.085(a) recognizes that a municipality's governing body may vacate a fire department position by ordinance. TEX. LOC. GOV'T CODE § 143.085(a). A position also may be vacated by "resignation," "retirement," "death," "promotion," or "issuance of an indefinite suspension in accordance with [subsection] 143.052(b)." Id. § 143.036(a)(1)-(5). The "[d]epartment head"-meaning "the chief or head of a fire ... department or that person's equivalent," id. § 143.003(2) is the individual vested with
5 While you reference "eliminat[ing]" civil service-classified positions, we understand you to mean "abolishing" those positions and respond accordingly. Request Letter at 1.

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the authority to make a promotional appointment; thus, he or she may vacate a position by promoting the firefighter who held that position, see id. § 143.036(e) (f). The department head also has the authority to order the indefinite suspension of a firefighter under his or her "supervision or jurisdiction for the violation of a civil service rule" in a municipality with a population of less than 1.5 million people.6 Id. § 143.052(b). And the civil service commission in a municipality with a population of less than 1.5 million people may likewise vacate a position by "permanently dismiss[ing]" a "suspended fire fighter" following a hearing on his or her appeal from a disciplinary suspension. Id. § 143.053(e)(1); see also id. § 143.053(g) (stating that "[t]he commission may ... dismiss a fire fighter ... only for violation of civil service rules and only after a finding by the commission of the truth of specific charges against the fire fighter").
Vacancies "must be filled according to the procedure outlined in the . . . Act." City of San Antonio v. Bullock, 34 S.W.3d 650, 660 (Tex. App .- San Antonio 2000, pet. denied). As a preliminary matter, municipal fire department positions that fall within the definition of "firefighter" under subsection 143.003(4) must be classified and, thus, may not be filled with non- civil service employees or contractors. See Int'l Ass'n of Firefighters, 822 S.W.2d at 129-30; TEX. LOC. GOV'T CODE § 143.003(4). Rather, a vacant position filled within one year "must be filled from the [fire department's] reinstatement list," and "[a]ppointments from the reinstatement list" are to "be made in order of seniority." TEX. LOC. GOV'T CODE § 143.085(a). "Only after the reinstatement list is exhausted[] may other firefighters be considered for the vacancy." Bullock, 34 S.W.3d at 659; see TEX. LOC. GOV'T CODE § 143.085(a). At that point, a firefighter may be appointed to the position "from an eligibility list." TEX. LOC. GOV'T CODE § 143.085(b).
You also inquire about whether "a municipal department such as the [VIA]" or "the [a]irport [d]irector of a municipal airport" has statutory authority to fill vacant civil service- classified firefighter positions. Request Letter at 2. Put simply, they have no such authority.7 Just as the Act gives a municipality's civil service commission and department heads authority related to the removal of employees from civil service positions, see supra p. 5, the Act "prescribes specific procedures for [them] ... to fill civil service positions." Tex. Att'y Gen. Op. No. GA- 0325 (2005) at 2. Specifically, section 143.026, which establishes the procedure for filling "a beginning position," provides that "the department head" "shall request in writing from the [civil service] commission the names of suitable persons from the eligibility list" when a vacancy in such a position occurs, TEX. LOC. GOV'T CODE § 143.026(a), and that the municipality's "chief executive" "shall [generally] appoint the person having the highest grade" on the eligibility list, id. § 143.026(b). Subsection 143.036(e), which concerns promotional appointments to civil service
6 The City falls within this population threshold. See U.S. CENSUS BUREAU, https://data.census.gov/ profile?g=160XX00US4832372 (last visited Mar. 10, 2026) (listing the City's population as of the last federal decennial census as 71,829); see also TEX. GOV'T CODE § 311.005(3) (defining "[p]opulation" for statutory construction purposes as "the population shown by the most recent federal decennial census").
7 VIA asserts that it is not subject to the Act and that the ARFF firefighters "are not fire department classifications under [subsection] 143.003(4), which requires [Harlingen Fire Department membership]." Esterly Brief at 5. As a result, VIA suggests that the airport director may discontinue the MOU and "arrang[e] for alternative measures as necessary to meet FAA requirements under [title] 14 [of the Code of Federal Regulations subsection] 139.319(a)," including the provision of ARFF services with non-civil service staff or third-party contractors. Id. We take no position on the issue of whether VIA or the airport director may discontinue the MOU, as it is beyond the scope of the questions raised by the requestor. See Request Letter at 1-2.

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positions, directs that "the department head shall fill [a] vacancy by permanent appointment from the eligibility list." Id. § 143.036(e). Plainly, the VIA board and airport director are not among the individuals vested with statutory authority to fill civil service positions under these provisions. See id. §§ 143.026(a)-(b), .036(e).
Finally, you inquire about the provision of ARFF services with non-civil service employees or third-party contractors. See Request Letter at 1-2. As discussed above, we lack information regarding the specific arrangement under which these services would be provided, see supra p. 2, and thus, offer no opinion as to whether any circumstances exist in which the City could provide ARFF services with non-civil service employees or third-party contractors. We note generally, however, that subsection 419.087(f) of the Government Code requires "[a] local government which provided fire protection for its citizens utilizing a fire department and fire protection personnel as of May 31, 1997" and that wishes to "provide fire protection by utilizing an organization which is not a local government, a department of local government, or a state or federal agency and which provides fire protection for the local government for profit under a contract or other agreement" to obtain "approval of a majority of the voters at an election called for that purpose." TEX. GOV'T CODE § 419.087(f). The City, as a municipality, is a local government for purposes of this provision, see id. §§ 419.021(4), .087(a), and has provided ARFF services using City firefighters since 1990, Request Letter at 2. Accordingly, the City is subject to this provision and should be mindful of its requirements when making decisions related to the provision of fire protection services.

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SUMMARY

The Fire Fighter and Police Officer Civil Service Act
authorizes a municipality’s governing body to abolish civil service-
classified positions in the municipality’s fire department, but
abolishment must be done in good faith. A municipality’s civil
service commission and department head have authority under the
Act to vacate classified firefighter positions under certain
circumstances, and they may fill vacant classified firefighter
positions in compliance with the procedures set forth in the Act. The
Act does not confer such authority to the Valley International
Airport board or airport director.

Very truly yours,

nn

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

RALPH MOLINA
Deputy First Assistant Attorney General

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

MICHAEL C. COTTON
Chair, Opinion Committee