. . *-a 

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MARK WHITE 

Attorney General 

Supreme Cawl Sulldlng 

P. 0. Sox 12548 

Austin. TX. 78711 

51214752501 

Telex 910@74-1387 

Telecopier 512f475JJ266 

IS07 MaIn St.. suite 1400 

DalIa% TX. 75201 

21411428044 

4S24.Afberla Ah, Suite 190 

ElPaso.TX. 7OBC6 

W32M4S4 

1220 Oallas Ave., Sulte 202 

Houston, TX. 77ow 

713m5oaSS 

SOS srmdwiy. Sum 312 

Lubbock, TX. ~79401 

806/7476238 

4202 N. Tenth, Suite S 

McAllal. TX. 18501 

5121(182-4547 

MO MaIn Plaza, suite 400 

San Antonio, TX. 78205 

512l225.4191 

An Equal Opporlunllyl 

Afflnnative ActIon Employec 

The Attorney General 

January 28, 1982 

Honorable Bill Presnal 

Chairman 

Committee on Appropriations 

House of Representatives 

Austin, Texas 78769 

of Texas 

Opinion No. WI-434 

Re: Minimum salaries of firemen under article 1269q. 

V.T.C.S. 

Dear Representative Presnal: 

You have sought our opinion with respect to the following 

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 

entitled to minimum compensation as established under the statute? 

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 

the city of Victoria approved a minimum salary of $1,050.00 per month 

for firemen. 

-Subsequent to the election, the city established a training and 

probationary program whereby a new employee in its fire department is 

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 

by the voters. The issue presented is whether the city can withhold 

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. 

Article 1269q. establishing minimum rates of pay, makes no 

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 

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