Case Information

*1 The Attorney General of Texas June 13, 1985 JIM MAl-lOX

Attorney General Bonorabla Dale Eama. Opinion No. JM-325

suprsma Court Buitdlnq Johnson County Attorney P. 0. Box 12548 1st Floor Courthowe RLE: Whether a city police depart- Austin. TX. 78711.2s Cleburue, Texas mant dispatcher ia coverad by civil 5lW7~2501 16031 Telex 9101874.1367 service protection under article T&coDler 512147M~ 12691. V.T.C.S. Dear Mr. llama: 714 J.CkSO”. Suite 700 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 1. Whether a police department dispatcher’s EI PSSO. TX. 799052793 positiou 1s entitled to civil coverage WY53S3484

under artkle 1269~. V.T.C.S.

1001 Texas. Suite 700 II’ such position is already covered by 2. Houston. TX. 77002~3111 1269m. cau the city council rkmove 713/223-5356 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. Suite S patcher’@, positlout. 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cities of over 10,000 inhabitants was originally enacted as chapter 200 M&l Plus, Sub *oo __ 325 of the Acts oii the Fiftieth ~Legislature.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 compensation for his setvices ae a mamber of said An Equal OpportunttY~ 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 The second paragraph of section 12 of article 1269m; aa originally enacted, provided that [all1 offices and positions in the Fire Department or Police Department shall be established by ordinance of City Council or governing body, *2 Honorable Dale llama - Page ((m-325)

provided, bowever, lf the officer or employee ahsll have been perr~ltted to serve 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 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 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 *3 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 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 service system of civil 12690. When it did so in 1955 it Included, as the court deciskns Indicate vas correct at the time. the of police department dispatcher under its civil system. On 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.

Very truly yours J k

A JIM MAfTOX Attorney General of Texas TOM GREEN

First Assistant Attorney Gewral

DAVID R. RICHARDS

Executive Assistant Attorney General

ROBERT GRAY

Special Assistant Attorney General

RICK GILPIN

Chairman. Opinion Counaittee

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