Case Information

*1 . . *-a of Texas

The Attorney General January 28, 1982

MARK WHITE

Attorney General Opinion No. WI-434 Honorable Bill Presnal

Supreme Cawl Sulldlng Chairman P. 0. Sox 12548 Committee on Appropriations Re: Minimum salaries of fire- Austin. TX. 78711 House of Representatives men under article 1269q. 51214752501 Telex 910@74-1387 Austin, Texas 78769 V.T.C.S. Telecopier 512f475JJ266 Dear Representative Presnal:

IS07 MaIn St.. suite 1400

You have sought our opinion with respect to the following DalIa% TX. 75201 question: Is a probationary firemen's trainee "a member of the fire 21411428044

department" within the meaning of article.1269q. V.T.C.S.. so as to be entitled to minimum compensation as established under the statute? 4S24.Afberla Ah, Suite 190 ElPaso.TX. 7OBC6 Article 1269q provides that certain qualifying cities may submit W32M4S4 a referendum to'its voters establishing minimum rates of compensation for its firemen and policemen. Pursuant to this statute the voters of 1220 Oallas Ave., Sulte 202 the city of Victoria approved a minimum salary of $1,050.00 per month Houston, TX. 77ow for firemen. 713m5oaSS -Subsequent to the election, the city established a training and SOS srmdwiy. Sum 312 probationary program whereby a new employee in its fire department is Lubbock, TX. ~79401 required to finish a course of instruction at the city's firefighting 806/7476238 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 the minimum salary from an employee because he is a probationary 5121(182-4547 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 shall be paid to "each member of the fire department." The operative An Equal Opporlunllyl language "each member of the fire department" finds no further Afflnnative ActIon Employec

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 *2 . - . .I 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

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