Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MAl-lOX June 13, 1985
Attorney General
Bonorabla Dale Eama. Opinion No. JM-325
suprsma Court Buitdlnq
P. 0. Box 12548
Johnson County Attorney
Austin. TX. 78711.2s 1st Floor Courthowe RLE: Whether a city police depart-
5lW7~2501 Cleburue, Texas 16031 mant dispatcher ia coverad by civil
Telex 9101874.1367 service protection under article
T&coDler 512147M~
12691. V.T.C.S.
714 J.CkSO”. Suite 700 Dear Mr. llama:
Dallas.lx
752024506
21417428S44 You have ask& the following ,thrce queatlous regarding the city
of Clebtinie’s police departmane:
4S24 A,t,efla Ave., .%lt* 160
EI PSSO. TX. 799052793 1. Whether a police department dispatcher’s
WY53S3484 positiou 1s entitled to civil service coverage
under artkle 1269~. V.T.C.S.
1001 Texas. Suite 700
2. II’ such position is already covered by
Houston. TX. 77002~3111
713/223-5356 article 1269m. cau the city council rkmove the
position from civil service coverage?
806 Broadway. Suite 312 3. If’ it is not legally poasible to remoxe the
ClJbbock, TX. 79401347s
diapatcL:r poritlon from civil sen+ze coverage is
am747-5238
section $1, paragraph 5 of article 1269m unconsti-
tutional as applied to a police dirpartment dis-
4309 N. Tenth. SuiteS patcher’@, positlout. 2
McAIlen. TX. 7850%1685
51me.2a47
The statute gtnrernlug fireman’s and policeman’s civil sewIce iu
cities of over 10,000 inhabitants was originally enacted as chapter
200 M&l Plus, Sub *oo __ 325 of the Acts oii the Fiftieth ~Legislature. Acts 1947. 50th Leg..
tan Antonio. TX. 782C527W ch. 325, at 550. fection 2 thereof initially defined “policeman” as
.512/2254181
any member of the Police Department vho dreve
An Equal OpportunttY~ compensation for his setvices ae a mamber of said
Aillrm~tlvs
*ction EmPtoYer Departumt.
Acts 1947. 50th Leg., ch. 325. I2. at 551. The second paragraph of
section 12 of article 1269m; aa originally enacted, provided that
[all1 offices and positions in the Fire Department
or Police Department shall be established by
ordinance of the City Council or governing body,
p. 1485
Honorable Dale llama - Page 2 ((m-325)
provided, bowever, lf the officer or employee
ahsll have been perr~ltted to serve the six (6)
months probationary period, the service of said
officer or employee shall ipao facto constitute
the creation of the mid position or office under
a civil service clawif ication.
Acte 1947, 50th Leg., ch. 325. 112, at 554. On the basis of these
provlsious it was generally lwld that all employee8 of the police
department in cities which adopted the civil eemice system created by
the act were given civil service status under that system. See City
of San Antonio v. Dandley, X)8 S.W.2d 608 (Tex. Civ. App. - San
Antonio 1957, writ ref’d); City of Wichita Palle v. Cox. 300 S.W.2d
317, (Tex. Civ. App - Fort WoX 1957, writ ref’dm City of San
Antonio v. Eahn, 274 S.W.2d 162 (Tex. Civ. App. - Auetiu 1954, writ
ref’d n.r.e.); City of San Antonio v. Wiley, 252 S.U.Zd 471 (Tex. Civ.
APP . - San Autonio 1952, wriF ref’d n.r.e.). See also City of San
Antonio v. Wallace. 338 S.W.2d 153 (Tax. 1960); City of San Antonio v.
Kneupper. 338 S.W.2d 121 (Tex. 1960); City of San Antonio v. Carr. 338
S.W.2d 122 (Tex. 1960).
In 1957, section 2 vas mended to redefine “policeman” as
[a]ny member of the Police Department appointed to
such position In substantial compliance vith the
prwiaions of Sections 9, 10. end 11 of this Act.
or entitled to Civil Service Status under Section
24 of this Act.
Acts 1957. 55th Leg., ch. 391. 61, at 1171. Thst enactment slso
replaced the -cited language of the second paragraph of section 12
providing for automatic classlficatiou of employees vith the following
language :
All offices aud positions in the Fire Depart-
ment or Police ‘Depcztment ahall 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 shell not result in the loas of Civil
Service benefits mder this Act by auy person
appointed to such position in substanttil com-
pliance with the p~ccrvisioas of Sections 9, 10 and
11 of this Act, m entitled to Civil Service
Status under Sectics. 24 of this Act.
Acts 1957, 55th Leg., ch. 39’1., 13. at .1172. It has been clearly held
that employees vhose civil smvice status was established prior to the
1957 amendment retained the f,Jll protection of that statute. City of
p. 1486
f
Honorable Dale Hanns - Page 3 (JM-325)
San Antonio v. Aandley. 308 !;.U.26 at 611; Cox v. Russell, 306 S.U.2d
814 (Tex. Civ. App. - Fort Worth 1957. no writ). per curiau. On the
other hand, it has also been well established thst a hone rule city
acting in good faith may sbolish the civil service atatus of positions
no longer entitled to coverage under article 1269n. as amended in
1957. City of San Antonio v. Wallace. 338 S.U.2d at 156; City of San
Antonio v. Kneupper. 338 S.V?Zd at 121; Welch v. Overton, 416 S.W.2d
879 (Tex. Civ. App. - Texarkana 1967. writ ref’d n.r.e.).
The city of Cleburne if a hone rule city entitled to adopt the
civil service system of article 12690. When it did so in 1955 it
Included, as the court deciskns Indicate vas correct at the time. the
position of police department dispatcher under its civil service
system. On the basis of the ‘1957 amendments to article 1269m and the
subsequent court decisions. ICleburne may renbve such position from
civil service coverage in the future so long as It does so in good
faith and does not purport to affect the protected status of employees
whose civil service ststus has been previously fixed. See City of San
Antonio v. Dandley. 308 S.F’.2d at 611. On the basisof this con-
clusion we have no need to deal with your third question.
While current employees in the position of
police department dispatcher nay not have their
civil service protection eliminated. the city of
Clebume nay remove the position of police depart-
ment dispatcher f,com the coverage of its civil
service system for the future.
J k Very truly
JIM
A
Attorney
yours
MAfTOX
General of Texas
TOM GREEN
First Assistant Attorney Gewral
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERTGRAY
Special Assistant Attorney General
RICK GILPIN
Chairman. Opinion Counaittee
p. 1487
i
Honorable Dale Eanna - Pale 4 W-325)
Pteparad by Colin J. Carl
Anslntant Attorney Genaral
APPROVED:
OPINION COWITl'EPs
Rick Gilpin, Chairmen
Colin Carl
Sussn Garrison
Tony Gufllory
Jim Moallinger
Jennifer Riggs
Nancy Sutton
BNC~ Youngblood
P. 1488