JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12549 

Austin, TX. 79711. 2548 

5121475-2501 

Telex 9101974-1367 

Telecopier 512i47502S6 

714 Jackson, Suite 700 

Dallas, TX. 752024509 

21417428944 

4924 Alberta Ave., Suite WI 

El Paso, TX. 79305.2793 

915/533-3494 

ml Texas, Suite 700 

,uston, TX. 77002.3111 

713223-5896 

806 Broadway, Suite 312 

Lubbock. TX. 794013479 

9061747-5238 

4303 N. Tenth, Suite S 

McAllen. TX. 78501-1885 

512/SS2-4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 79205.2797 

512/2254191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

.ruly 10, 1986 

Honorable George Pierce 

Chairman 

Committee on Urban 9:Efairs 

Texas Rouse of Representatives 

P. 0. Box 2910 

Austin, Texas 7876'3 

Dear Representative :?ierce: 

Opinion No. JM-515 

Re: Whether a city may hire 

non-civil service personnel in 

positions which are supervised 

by the fire chief 

You ask for zin interpretation of section 2 of article 1269m, 

V.T.C.S.. and whett.er a city may hire non-civil service personnel to 

perform certain activities which are supervised by the fire chief. It 

is our opinion that ,the provisions.of article.1269m. the Firemen's and 

Policemen's Civil Service Act, do not require a city to create civil 

service positions :for all activities of a fire department that are 

enumerated in section 2 of that act. 

No inflexible rule can be announced for the construction of 

statutes. However, the dominant consideration in construing statutes 

is the intention of ,the legislature. That intention is derived from a 

general review of an entire enactment. Statutory language must be 

read in the context of the entire act. See City of Houston v. Morgan 

Guaranty Internatio@ Bank, 666 S.W.2d 524. 529 (Tex. App. - Houston 

[let Dist.] 1983, weit ref'd n.r.e.); Nichols V. Aldine Independent 

School District, 356 S.W.2d 182, 184 (Tex. Civ. App. - Houston 1962, 

no writ); Holcombe v . Levy, 301 S.W.2d 507, 518 (Tex. Civ. App. - 

Galveston 1957, writ ref d n.r.e.); Attorney General Opinion JM-504 

(1986). It is the duty of the courts to harmonize and give effect to 

all provisions of statutes, if reasonably possible. - See Attorney 

General Opinion JM-505 (1986). 

The statute governing firemen's and policemen's civil service in 

cities of over lC,OOO inhabitants originally was enacted by the 

Fiftieth Legislature in 1947 as chapter 325. Section 2 of that act 

initially defined “E:Lremen” as 

any membt:r of a Fire Department who draws compensation for his services as a member of said 

Department. 

The second paragraph of section 12, chapter 325, provided that 

p. 2361 
Honorable George Pierce - P,%ge 2 (m-515) 

[a]11 offices and positions in the Fire Department 

or Police Department shall be established by 

ordinance of the City Council or governing body, 

provided, howeve:::, if the officer or employee 

shall have been permitted to serve the six (6) 

months probationr.ry period, the service of said 

officer or employee shall ipso facto constitute 

the creation of the said position or office under 

a civil service classification. 

Acts 1947, 50th Leg., ch. 325, at 550. In Attorney General Opinion 

JM-325 (1985), this offi:s stated that on the basis of these 

provisions it was generally held that all employees of the police 

department in cities which adopted the civil service system created by 

the act were given civil s::rvice status under that system. See City 

of San Antonio v. Handle , 308 S.W.2d 608 (Tex. Civ. Appy San 

Antonio lm Fity of Wichita Falls v. Cox, 300 S.W.2d 

317 (Tex. Civ. App. - Fort 'Jorth 1957, writ ref'd n.r.e.); City of San 

Antonio v. Hahn, 274 S.W.21 162 (Tex. Civ. App. - Austin 1954, writ 

ref'd n.r.e.); City of San ,+ntonio v. Wiley. 252 S.W.2d 471 (Tex. Civ. 

APP. - San Antonio 1952, writ. ref'd n.r,e.). See also City of San 

Antonio v. Wallace, 338 S.W.:Zd 153 (Tex. 1960);.City of San Antonio v. 

Kneupper, 338 S.W.2d 121 (Tzr. 1960); City of San Antonio v~. Carr, 338 

S.W.2d 122 (Tex. 1960). That interpretation was equally applicable to 

employees of fire departments. 

In 1957, section 2 cf article 1269m was amended to redefine 

"firemen" as 

[a]ny member of ,clle Fire Department appointed to 

such position in substantial compliance with the 

provisions of Sections 9, 10, and 11 of this Act, 

or entitled to Civil Service Status under Section 

24 of this Act. 

Acts 1957. 55th Leg., ch. 391, 92, at 1171. That enactment also 

replaced the cited langua(:e of the second paragraph of section 12 

providing for automatic classification of employees with the following 

language: 

All offices and positions in the Fire Department or Police Dc:partment shall be established by 

ordinance of the City Council or governing body, 

provided however~ that the failure of a City 

Council or governing body to establish a position 

by ordinance shall not result in the loss of Civil 

Service benefits under this Act by any person 

appointed to such position in substantial compliance with the provisions of Sections 9. 10 and 

p. 2362 
Honorable George Pierce - Eage 3 (JM-515) 

11 of this Act or entitled to Civil Service 

Status under Section 24 of this Act. 

Texas courts have held that persons whose civil service status was 

established prior to the 1957 amendment, by virtue of being members of 

the department who drew compensation for their services as a member of 

the department, retained the protection of that statute. City of San 

Antonio v. Handley, ,&; Cox v. Purcell, 306 S.W.2d 814 (Tex. Civ. 

APP. - Fort Worth 19>7, niTwrit), per curiam. The courts also have 

held that home rule cities acting in good faith may abolish the civil 

service status of positic'ns no longer entitled to coverage under 

article 1269m as amended :Ln 1957. City of San Antonio v. Wallace, 

a; City of San Antonio J. Eneupper, id.; Welch v. Overton, 416 

S.W.2d 879 (Tex. Civ. App. - Texarkanax67, writ ref'd n.r.e.1. 

Since the governing body of a city by ordinance may abolish positions 

of civil service employment if the city acts in good faith to promote 

efficiency and the best interests of the city, presumably the 

governing body, acting in good faith. also may fail to create 

positions of civil service employment. See Attorney General Opinion 

JM-325 (1985). 

In 1979, the legislature again amended section 2 of article 1269m 

by adding, as the second sentence, the following language: 

The term -- includes firemen who perform fire 

suppression, firf, prevention, fire training, fire 

safety education, fire maintenance, fire c&munications, fire med,ical emergency technology, fire 

photography, or fire administration. (Emphasis 

added). 

Acts 1979, 66th Leg., ch. '753, 82, at 1856. In 1985, the legislature 

reenacted section 2 withou,: change to the first two sentences, which 

are the provisions that re:.ate to firemen. Acts 1985, 69th Leg., ch. 

958, 521, at 7040. 

It is our opinion that the language added in 1979 does not alter 

the basic definition of "firemen" in section 2 and does not add any 

individual to the class of persons defined,as "firemen." The added 

sentence does not state that the term "firemen" includes or means 

"persons" who perform the enumerated activities, but states that the 

term "firemen" includes ":i!iremen" who perform the named functions, 

some of which are not firefighting in the usual sense. The legislature could not have intend'zd the term to include all "personnel" who 

perform the enumerated furctions, since House Bill No. 1325 of the 

Sixty-sixth Legislature, which added the sentence in question, was 

amended on the House Floor to strike "personnel" where it initially 

appeared in the added sentence on the first page of the bill and to 

substitute "firemen" for "personnel." Floor Amendment No. 2 to House 

p. 2363 
Honorable George Pierce - Ps8e 4 UM-515) 

Bill No. 1325, adopted May :!l. 1979. A person within a fire department who performs an activ:tty listed in section 2 is not a "fireman" 

under ,that section unless ,rhe person has earned civil service status 

as provided by sections 9, 1.0, and 11 or is entitled to it under the 

original grandfather clause aof section 24. If the Sixty-sixth Legislature intended the added sentence to change the definition, it easily 

could have stated that the term "firemen" means persons or personnel 

who perform the specified activities. 

The history of article 1269m supports this conclusion. Prior to 

the amendment of section 12 in 1957, a long line of cases had held 

that, under the statute, all employees of a fire department were 

entitled to civil service Zeus. See, e.g., City of San Antonio v. 

Handley. J& The amendment to section 12 was designed to provide that 

a particular position is nclt covered by civil service unless it is so 

established by ordinance. I'he title to that amendment reads, in part: 

by amending section 12 thereof by stopping the 

creation in the future of new classified positions, 

unless established by ordinance. . . . 

Acts 1957, 55th Leg., ch. 391, at 1171. 

The relevant portion of section 12 has not been altered since 

1957, but'was reenacted without change in 1979 and 1981. Acts 1981, 

67th Leg., ch. 215, $12, at 525; Acts 1979, 66th Leg., ch. 753, 512,' 

at 1858. To construe-the 1979 amendment to section 2 to require that 

each of the 14sted activities be filled only by employees having civil 

service status would effeci:ively repeal the 1957 amendment to section 

12 and its subsequent reenactment. 

Article 1269m requires vacancies in all civil service positions 

to be filled as provided by sections 9, 10, and 11 of that act. 

Section 9 provides, in par~t. that 

tall1 eligibili:y lists for applicants for 

original positior,s in the Fire and Police Departments shall be c;eated only as a result of such 

~examinations. and no appointments shall ever be 

made for any position in such Departments except -- 

as a result of ::uch examination, which shall be 

based on the applicant's knowledge of and qualifications for fire fighting and work in the Fire 

Department. . . . (Emphasis added). 

We conclude. however, that article 1269m does not mandate that all the 

activities of a'fire department enumerated in section 2 be performed 

by civil service positions, Since 1957, the governing body of a city 

p. 2364 
i 

Honorable George Pierce - P,nge 5 (JM-515) 

by ordinance establishes any new civil service positions in the fire 

department. 

SUMMARY 

The Firemen's and Policemen's Civil Service 

Act, article 126%. V.T.C.S., does not require a 

city to create ciril service positions for all the 

activities of a fire department that are 

enumerated in sec,:ion 2 of that act. 

%$;;#j& 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney Gelera 

c. 

MARY KELLER 

Executive Assistant Attorne:r General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Nancy Sutton 

Assistant Attorney General 

p. 2365