.. *-a

..

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 EqualOpporlunllyl 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 salariesof firemen under article 1269q. V.T.C.S. Dear RepresentativePresnal: You have sought our opinion with respect to the following question: Is a probationary firemen's trainee "a member of the fire department"within themeaning of article.1269q.V.T.C.S.. so as to be entitled to minimum compensationas establishedunder the statute? Article 1269q provides that certain qualifying cities may submit a referendum to'its voters establishingminimum rates of compensation for its firemen and policemen. Pursuant to this statute thevoters of the city of Victoria approved a minimum salary of $1,050.00per month for firemen. -Subsequentto the election, the city established a training and probationary programwhereby a new employee in its fire department is required to finish a course of instructionat the city's firefighting academy in addition to completing one year of service with the departmentbefore 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'sCivilService' Act. Article 1269q. establishing minimum rates of pay, makes no reference to an employee's status as determinedby article 1269m.but simply provides that the minimum salary as approved by the voters shallbe 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 authdritativelyby 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.. . -

. .I HonorableBill Presnal~-Page 2 (MW-434)

opinion relied on a number of decisions from other jurisdictions that had construed thewords "memberof the department" in similar statutes to include all employeeswhether or not commissioned law enforcement officers. Also, in City of Wichita Fallsv. 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 departmentwere "members of a police department" within the meaning of article 1269m and thus entitled to civil serviceprotectionunder 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 theminimumwage to cover all departmentalemployeeswhile restricting civil serviceprotection to firemenand 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 theminimum amount setby the voters in the most recent referendum.
Very trulyyours, 'A

MARK WHITE Attorney General of Texas JOHNW. FAINTER. JR. FirstAssistantAttorney General RICUARDE. GRAY III ExecutiveAssistant AttorneyGeneral

p. 1494HonorableBill Presnal - Page 3 (Mw-434)

Preparedby William 0. Goodman AssistantAttorney General APPROVED: OPINION COMMITTEE SusanL. Garrison, Chairman Jon Bible Rick Gilpin William 0. Goodman JimMoellinger

p. 1495