Untitled Texas Attorney General Opinion ( 2004 )

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ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 25,2004
The Honorable Susan D. Reed Opinion No. GA-0238
Bexar County Criminal District Attorney
Bexar County Justice Center Re: Whether deputy sheriffs are “police officers”
300 Dolorosa, Fifth Floor for purposes of Local Government Code chapter
San Antonio, Texas 78205-3030 174, The Fire and Police Employee Relations Act
(RQ-01 89-GA)
Dear Ms. Reed:
You ask whether deputy sheriffs are “police officers” for purposes of Local Government
Code chapter 174, The Fire and Police Employee Relations Act, TEX. Lot. GOV’T CODE ANN.
3s 174.001-,253 (Vernon 1999 & Supp. 2004); see also id. § 174.001 (Vernon 1999) (short title).’
The legislature enacted the statutory predecessor to chapter 174, former article 5154c-1, in
1973’ and then repealed and codified the former law in the Local Government Code without
substantive change in 1993.’ Chapter 174 provides fire fighters and police officers with the right to
organize for collective bargaining. See id. $5 174.002(b), ,023. A political subdivision is subject
to chapter 174 if(i) its governing body receives a petition to order an election for chapter 174’s
adoption for fire fighters, police officers, or both and (ii) a majority of the voters subsequently
approve chapter 174’s adoption at the election. See id. $5 174.051-,052. On chapter 174’s adoption
by a political subdivision, “tire fighters, police officers, or both are entitled to organize and bargain
collectively with their public employer regarding compensation, hours, and other conditions of
employment.” Id. 9 174.023.
‘Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General (Mar. 2,2004) (on tile with Opinion Committee, also avaihble af http://www.oag.state.tx.us)
[hereinafter Request Letter].
?%eAct ofApr. 25,1973,63d Leg., R.S., ch. 81,1973 Tex. Gen. Laws 151
‘See Act of May 12, 1993,73d Leg., RX, ch. 269, $5 4 (adopting Local Government Code chapter l74), 5
(repealing former article 515411-l), 6 (“This Act is intended as a recodification only, and no substantive change in the
law is intended by this Act.“), 1993 Tex. Gen. Laws 987, 1263, 1273.
The Honorable Susan D. Reed - Page 2 (GA-0238)
You explain that the Deputy Sheriffs Association of Bexar County presented a petition to
the Bexar County Commissioners Court to conduct an election to determine whether deputy sheriffs
“shall be entitled to collectively bargain with the County.” Request Letter, supra note 1, at 1. The
commissioners court called an election for May 15,2004, see id., at which a majority of the voters
voted to adopt chapter 174. See Bexar County Elections Dep’t-Past Election Report Files, available
athttp://www.bexar.org/election/Past Election-Report Files/pas-election-report files.html. You
ask whether deputy sheriffs are “police officers” entitled to collectively bargain under Local
Government Code chapter 174. See Request Letter, supra note 1, at 1.
Section 174.003 defines the term “police officer” to mean “a paid employee who is sworn,
certified, and full-time, and who regularly serves in a professional law enforcement capacity in the
police department of apolitical subdivision. The term does not include the chiefofthe department.”
TEX.Lot. GOV’T CODE ANN. 3 174.003(3) (Vernon Supp. 2004). With respect to the term “political
subdivision,” section 174.003(4) merely provides that the term “includes a municipality.” Id.
5 174.003(4). The term “public employer” means
the official or group of officials of a political subdivision whose duty
is to establish the compensation, hours, and other conditions of
employment of tire fighters, police officers, or both, and may include
the mayor, city manager, town manager, town administrator,
municipal governing body, director of personnel, personnel board,
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commissioners, or another official or combination of those persons.
Zd. 5 174.003(5). In addition, section 174.004 provides that “[tlhis chapter shall be liberally
construed.” Id. 5 174.004 (Vernon 1999).
Section 174.003’s definitions do not expressly include deputy sheriffs within the meaning
of “police officer” or counties within the meaning of “political subdivision.” See id. 5 174.003(3)-
(4) (Vernon Supp. 2004). As you note, however, several courts have concluded that chapter 174
applies to counties and county law enforcement officers.
In 198 1, the first court to consider the question held that chapter 174’s statutory predecessor,
former article 5 154c- 1, applied to deputy sheriffs. See Comm ‘rs Ct. ofEl Paso County v. El Paso
County Sheriffs Deputies Ass’n, 620 S.W.2d 900, 901 (Tex. Civ. App.-El Paso 1981, writ ref d
n.r.e.). Much like chapter 174, the former law applied to “each sworn certified full-time paid
employee, whether male or female, who regularly serves in a professional law enforcement capacity
in the police department of any city, town, or other political subdivision within the state, with the
sole exception of the chief of the department.“4 Noting that the evidence established that the deputy
sheriffs were sworn and certified and served in a professional law enforcement capacity, that
counties are political subdivisions under Texas law, and that the statute calls for a liberal
‘SeeActofApr. 25,1973,63dLeg.,R.S.,ch.81,§ 3,1973TexGen. Laws 151,152(adoptingartic1e5154c-I,
section 3(2) defining “policeman”).
The Honorable Susan D. Reed - Page 3 (GA-0238)
construction, see id. at 901-02, the court determined that “it must be concluded that deputy sheriffs
and their public employer, counties, are included and covered by the Act,” id. at 902. The court
expressly considered and disapproved Attorney General Opinion H-918 (1976), which had
concluded that former article 5 154c-1 didnot applyto sheriffs’ departments. See id. (“The reasoning
and lack of authorities in that opinion leaves us unpersuaded.“).
In addition, two subsequent cases, Webb County v. Webb CountyDeputiesAss ‘n, 768 S.W.2d
953 (Tex. App.-San Antonio 1989, no writ), and El Paso County Sheriffs Deputies’ Ass’n Y.
Samaniego, 803 S.W.2d 435 (Tex. App.-El Paso 1991, no writ), concluded that former article
5154c-1 applied to county-employed detention officers and jailers who were sworn, certified, and
serving in a professional law enforcement capacity. See Webb County, 768 S.W.2d at 955,
Sumaniego, 803 S.W.2d at 437. The former law’s 1993 repeal and codification has not affected
these holdings. SeeLeev. ElPaso County, 965 S.W.2d 668,672 n.14 (Tex. App.-El Paso 1998, pet.
denied) (“In 1973, the Legislature granted fire fighters and police officers the right to collectively
bargain and organize. The newest version of the statute, the Fire and Police Employees Relations
Act allows tire fighters and police officers to form an association to represent them in
negotiations and disputes between them and their public employers. Although sheriffs and officers
of sheriffs departments are not specifically covered by the Act, this court has interpreted the Act to
include sheriffs departments.“).
You suggest, however, that a more recent case construing former article 5 154c-1, City of Sun
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Antonio v. San Antonio Park Rangers Ass’n, 850 S.W.2d 189 (Tex. App.San Antonio 1992, writ
denied), indicates that chapter 174 does not apply to counties and deputy sheriffs. In Sun Antonio
Park Rangers Ass ‘n, the court considered whether city park rangers were entitled to collectively
bargain under former article 5 154c-1. The court concluded that the park rangers were not subject
to the statute because they were not employed by the city’s police department and therefore did not
fall within the statutory definition’s scope:
[W]e hold that “in the police department” excludes San Antonio Park
Rangers. The ordinary meaning of the term “the” connotes a singular
entity. The San Antonio Park Rangers Department is a separate entity
from the San Antonio Police Department. Therefore, “the police
department” must mean the San Antonio Police Department but not
the San Antonio Park Rangers.
San Antonio Park Rangers Ass’n, 850 S.W.2d at 192-93.
We disagree that San Antonio ParkRangers Ass’n is dispositive here. While the court cited
legislative testimony from the former law’s 1973 enactment suggesting that the legislature may not
have intended the statute to apply to a sheriffs office, see id. at 192, the issue whether the former
law applied to counties or deputy sheriffs was not before the court. This office is bound by the court
decisions that address the issue and directly hold that former article 5154c-1 applies to counties,
deputy sheriffs, and other county law enforcement officers. Moreover, in the years since the first
The Honorable Susan D. Reed - Page 4 (GA-0238)
such court holding in 198 1, no court has disagreed with these holdings,’ nor has the legislature acted
to amend former article 5154c-1 or chapter 174 to exclude counties or deputy sheriffs from the law’s
scope. Accordingly, we must conclude that chapter 174 of the Local Government Code applies to
counties and deputy sheriffs and that deputy sheriffs are “police officers” within its scope.
‘In San Antonio Park Rangers Ass ‘n, the court distinguished Webb Counfy on the basis that the only question
on appeal in that case was whether Webb County detention ofkers and jailers were included in the existing collective
bargaining unit for deputy sheriffs. See San Antonio Park Rangers Assh, 850 S.W.2d at 193. The court did not
disapprove of the holding in Webb County or the other cases that former article 5 154~1 applies to counties 01 deputy
sheriffs.
The Honorable Susan D. Reed - Page 5 (GA-0238)
SUMMARY
Chapter 174 of the Local Government Code, The Fire and
Police Employee Relations Act, applies to counties and deputy
sheriffs. Deputy sheriffs are “police officers” under the Act.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, O&ion Committee