Untitled Texas Attorney General Opinion ( 1982 )

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The Attorney General of Texas
January 28, 1982
MARK WHITE
Attorney General
Honorable Bill Presnal Opinion No. WI-434
Supreme Cawl Sulldlng
P. 0. Sox 12548 Chairman
Austin. TX. 78711 Committee on Appropriations Re: Minimum salaries of fire-
51214752501 House of Representatives men under article 1269q.
Telex 910@74-1387 Austin, Texas 78769 V.T.C.S.
Telecopier 512f475JJ266
Dear Representative Presnal:
IS07 MaIn St.. suite 1400
DalIa% TX. 75201 You have sought our opinion with respect to the following
21411428044 question: Is a probationary firemen's trainee "a member of the fire
department" within the meaning of article.1269q. V.T.C.S.. so as to be
4S24.Afberla Ah, Suite 190
entitled to minimum compensation as established under the statute?
ElPaso.TX. 7OBC6
W32M4S4 Article 1269q provides that certain qualifying cities may submit
a referendum to'its voters establishing minimum rates of compensation
for its firemen and policemen. Pursuant to this statute the voters of
1220Oallas
Ave., Sulte
202
Houston,
TX.77ow the city of Victoria approved a minimum salary of $1,050.00 per month
713m5oaSS for firemen.
-Subsequent to the election, the city established a training and
SOSsrmdwiy. Sum 312
probationary program whereby a new employee in its fire department is
Lubbock, TX. ~79401
806/7476238 required to finish a course of instruction at the city's firefighting
academy in addition to completing one year of service with the
department before the employee is paid the minimum salary established
4202 N. Tenth, Suite S by the voters. The issue presented is whether the city can withhold
McAllal. TX. 18501
5121(182-4547
the minimum salary from an employee because he is a probationary
non-certified fireman within the meaning of article 1269m, V.T.C.S..
the Firemen's and Policemen's Civil Service'Act.
MO MaIn Plaza, suite 400
San Antonio, TX. 78205 Article 1269q. establishing minimum rates of pay, makes no
512l225.4191
reference to an employee's status as determined by article 1269m. but
simply provides that the minimum salary as approved by the voters
An Equal Opporlunllyl shall be paid to "each member of the fire department." The operative
Afflnnative ActIon Employec language "each member of the fire department" finds no further
elaboration in the statute and has never been construed
authdritatively by Texas -courts.
Bowever, in Attorney General Opinion 'O-4859 (1942) it was
determined that "rookie policemen" and "jail matrons" were "members
of" the police department within the meaning of article 1583 of the
former Texas Penal Code, the predecessor to article 1269q. The
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Honorable Bill Presnal~- Page 2 (MW-434)
opinion relied on a number of decisions from other jurisdictions that
had construed the words "member of the department" in similar statutes
to include all employees whether or not commissioned law enforcement
officers.
Also, in City of Wichita Falls v. Cox. 300 S.W.2d 317 (Tex. Civ.
APP. - Fort Worth 1957). the Court of Civil Appeals ruled that
non-commissioned employees of a police department were "members of a
police department" within the meaning of article 1269m and thus
entitled to civil service protection under the statute. Subsequent to
this opinion the legislature amended article 1269m to restrict its
coverage to commissioned peace officers and firefighters and exclude
all other department employees from civil service protection. See
City of San Antonio v. Carr, 338 S.W.2d 122 (Tex. 1960). It is-z
some significance that the legislature did not, however, choose to
amend former article 1583 of the Texas Penal Code [present article
1269q1. It left intact the nearly identical language, "each member,"
and one can reasonably infer therefrom that the legislature intended
the minimum wage to cover all departmental employees while restricting
civil service protection to firemen and policemen.
Given the plain meaning of the words "each
member". and the legislature's conduct in this
matter, we reaffirm the opinion of this office on
O-4859 (1942) and hold that, when a minimum wage
is adopted pursuant to article 1269q. it must be
applied to all employees of a police or fire
department. Thus, in the instant case, it would
be a violation of article 1269q not to pay
probationary employees of the Victoria Fire
Department the minimum amount set by the voters in
the most recent referendum.
Very truly yours, 'A
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER. JR.
First Assistant Attorney General
RICUARD E. GRAY III
Executive Assistant Attorney General
p. 1494
Honorable Bill Presnal - Page 3 (Mw-434)
Prepared by William 0. Goodman
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
William 0. Goodman
Jim Moellinger
p. 1495