Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
.ruly10, 1986
JIM MATTOX
Attorney General
Supreme Court Building Honorable George Pierce Opinion No. JM-515
P. 0. BOX 12549
Austin, TX. 79711. 2548
Chairman
5121475-2501 Committee on Urban 9:Efairs Re: Whether a city may hire
Telex 9101974-1367 Texas Rouse of Representatives non-civil service personnel in
Telecopier 512i47502S6 P. 0. Box 2910 positions which are supervised
Austin, Texas 7876'3 by the fire chief
714 Jackson, Suite 700
Dallas, TX. 752024509 Dear Representative :?ierce:
21417428944
You ask for zin interpretation of section 2 of article 1269m,
V.T.C.S.. and whett.er a city may hire non-civil service personnel to
4924 Alberta Ave., Suite WI
El Paso, TX. 79305.2793
perform certain activities which are supervised by the fire chief. It
915/533-3494 is our opinion that ,theprovisions.of article.1269m. the Firemen's and
Policemen's Civil Service Act, do not require a city to create civil
service positions :for all activities of a fire department that are
ml Texas, Suite 700 enumerated in section 2 of that act.
,uston, TX. 77002.3111
713223-5896
No inflexible rule can be announced for the construction of
statutes. However, the dominant consideration in construing statutes
806 Broadway, Suite 312 is the intention of ,the legislature. That intention is derived from a
Lubbock. TX. 794013479 general review of an entire enactment. Statutory language must be
9061747-5238
read in the context of the entire act. See City of Houston v. Morgan
Guaranty Internatio@ Bank, 666 S.W.2d 524. 529 (Tex. App. - Houston
4303 N. Tenth, Suite S [let Dist.] 1983, weit ref'd n.r.e.); Nichols V. Aldine Independent
McAllen. TX. 78501-1885 School District, 356 S.W.2d 182, 184 (Tex. Civ. App. - Houston 1962,
512/SS2-4547 no writ); Holcombe v . Levy, 301 S.W.2d 507, 518 (Tex. Civ. App. -
Galveston 1957, writ ref d n.r.e.); Attorney General Opinion JM-504
200 Main Plaza, Suite 400 (1986). It is the duty of the courts to harmonize and give effect to
San Antonio, TX. 79205.2797 all provisions of statutes, if reasonably possible. - See Attorney
512/2254191 General Opinion JM-505 (1986).
An Equal Opportunity/
The statute governing firemen's and policemen's civil service in
Affirmative Action Employer cities of over lC,OOO inhabitants originally was enacted by the
Fiftieth Legislature in 1947 as chapter 325. Section 2 of that act
initially defined “E:Lremen” as
any membt:r of a Fire Department who draws com-
pensation for his services as a member of said
Department.
The second paragraph of section 12, chapter 325, provided that
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Honorable George Pierce - P,%ge2 (m-515)
[a]11 offices and positions in the Fire Department
or Police Department shall be established by
ordinance of the City Council or governing body,
provided, howeve:::,if the officer or employee
shall have been permitted to serve the six (6)
months probationr.ry period, the service of said
officer or employee shall ipso facto constitute
the creation of the said position or office under
a civil service classification.
Acts 1947, 50th Leg., ch. 325, at 550. In Attorney General Opinion
JM-325 (1985), this offi:s stated that on the basis of these
provisions it was generally held that all employees of the police
department in cities which adopted the civil service system created by
the act were given civil s::rvicestatus under that system. See City
of San Antonio v. Handle , 308 S.W.2d 608 (Tex. Civ. Appy San
Antonio lm Fity of Wichita Falls v. Cox, 300 S.W.2d
317 (Tex. Civ. App. - Fort 'Jorth 1957, writ ref'd n.r.e.); City of San
Antonio v. Hahn, 274 S.W.21 162 (Tex. Civ. App. - Austin 1954, writ
ref'd n.r.e.); City of San ,+ntoniov. Wiley. 252 S.W.2d 471 (Tex. Civ.
APP. - San Antonio 1952, writ. ref'd n.r,e.). See also City of San
Antonio v. Wallace, 338 S.W.:Zd153 (Tex. 1960);.City of San Antonio v.
Kneupper, 338 S.W.2d 121 (Tzr. 1960); City of San Antonio v~.Carr, 338
S.W.2d 122 (Tex. 1960). That interpretation was equally applicable to
employees of fire departments.
In 1957, section 2 cf article 1269m was amended to redefine
"firemen" as
[a]ny member of ,clleFire Department appointed to
such position in substantial compliance with the
provisions of Sections 9, 10, and 11 of this Act,
or entitled to Civil Service Status under Section
24 of this Act.
Acts 1957. 55th Leg., ch. 391, 92, at 1171. That enactment also
replaced the cited langua(:e of the second paragraph of section 12
providing for automatic classification of employees with the following
language:
All offices and positions in the Fire Depart-
ment or Police Dc:partmentshall be established by
ordinance of the City Council or governing body,
provided however~ that the failure of a City
Council or governing body to establish a position
by ordinance shall not result in the loss of Civil
Service benefits under this Act by any person
appointed to such position in substantial com-
pliance with the provisions of Sections 9. 10 and
p. 2362
Honorable George Pierce - Eage 3 (JM-515)
11 of this Act or entitled to Civil Service
Status under Section 24 of this Act.
Texas courts have held that persons whose civil service status was
established prior to the 1957 amendment, by virtue of being members of
the department who drew compensation for their services as a member of
the department, retained the protection of that statute. City of San
Antonio v. Handley, ,&; Cox v. Purcell, 306 S.W.2d 814 (Tex. Civ.
APP. - Fort Worth 19>7, niTwrit), per curiam. The courts also have
held that home rule cities acting in good faith may abolish the civil
service status of positic'ns no longer entitled to coverage under
article 1269m as amended :Ln 1957. City of San Antonio v. Wallace,
a; City of San Antonio J. Eneupper, id.; Welch v. Overton, 416
S.W.2d 879 (Tex. Civ. App. - Texarkanax67, writ ref'd n.r.e.1.
Since the governing body of a city by ordinance may abolish positions
of civil service employment if the city acts in good faith to promote
efficiency and the best interests of the city, presumably the
governing body, acting in good faith. also may fail to create
positions of civil service employment. See Attorney General Opinion
JM-325 (1985).
In 1979, the legislature again amended section 2 of article 1269m
by adding, as the second sentence, the following language:
The term --includes firemen who perform fire
suppression, firf,prevention, fire training, fire
safety education, fire maintenance, fire c&muni-
cations, fire med,ical emergency technology, fire
photography, or fire administration. (Emphasis
added).
Acts 1979, 66th Leg., ch. '753,82, at 1856. In 1985, the legislature
reenacted section 2 withou,: change to the first two sentences, which
are the provisions that re:.ateto firemen. Acts 1985, 69th Leg., ch.
958, 521, at 7040.
It is our opinion that the language added in 1979 does not alter
the basic definition of "firemen" in section 2 and does not add any
individual to the class of persons defined,as "firemen." The added
sentence does not state that the term "firemen" includes or means
"persons" who perform the enumerated activities, but states that the
term "firemen" includes ":i!iremen"who perform the named functions,
some of which are not firefighting in the usual sense. The legisla-
ture could not have intend'zdthe term to include all "personnel" who
perform the enumerated furctions, since House Bill No. 1325 of the
Sixty-sixth Legislature, which added the sentence in question, was
amended on the House Floor to strike "personnel" where it initially
appeared in the added sentence on the first page of the bill and to
substitute "firemen" for "personnel." Floor Amendment No. 2 to House
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Honorable George Pierce - Ps8e 4 UM-515)
Bill No. 1325, adopted May :!l. 1979. A person within a fire depart-
ment who performs an activ:ttylisted in section 2 is not a "fireman"
under ,that section unless ,rheperson has earned civil service status
as provided by sections 9, 1.0,and 11 or is entitled to it under the
original grandfather clause aofsection 24. If the Sixty-sixth Legisla-
ture intended the added sentence to change the definition, it easily
could have stated that the term "firemen" means persons or personnel
who perform the specified activities.
The history of article 1269m supports this conclusion. Prior to
the amendment of section 12 in 1957, a long line of cases had held
that, under the statute, all employees of a fire department were
entitled to civil service Zeus. See, e.g., City of San Antonio v.
Handley. J& The amendment to section 12 was designed to provide that
a particular position is nclt covered by civil service unless it is so
established by ordinance. I'hetitle to that amendment reads, in part:
by amending section 12 thereof by stopping the
creation in the future of new classified positions,
unless established by ordinance. . . .
Acts 1957, 55th Leg., ch. 391, at 1171.
The relevant portion of section 12 has not been altered since
1957, but'was reenacted without change in 1979 and 1981. Acts 1981,
67th Leg., ch. 215, $12, at 525; Acts 1979, 66th Leg., ch. 753, 512,'
at 1858. To construe-the 1979 amendment to section 2 to require that
each of the 14sted activities be filled only by employees having civil
service status would effeci:ivelyrepeal the 1957 amendment to section
12 and its subsequent reenactment.
Article 1269m requires vacancies in all civil service positions
to be filled as provided by sections 9, 10, and 11 of that act.
Section 9 provides, in par~t.that
tall1 eligibili:y lists for applicants for
original positior,sin the Fire and Police Depart-
ments shall be c;eated only as a result of such
~examinations. and no appointments shall ever be
made for any position
-- in such Departments except
as a result of ::uch examination, which shall be
based on the applicant's knowledge of and quali-
fications for fire fighting and work in the Fire
Department. . . . (Emphasis added).
We conclude. however, that article 1269m does not mandate that all the
activities of a'fire department enumerated in section 2 be performed
by civil service positions, Since 1957, the governing body of a city
p. 2364
i
Honorable George Pierce - P,nge5 (JM-515)
by ordinance establishes any new civil service positions in the fire
department.
SUMMARY
The Firemen's and Policemen's Civil Service
Act, article 126%. V.T.C.S., does not require a
city to create ciril service positions for all the
activities of a fire department that are
enumerated in sec,:ion2 of that act.
%$;;#j&
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney Gelera
MARY KELLER
c. Executive Assistant Attorne:rGeneral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
p. 2365