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
.ruly10, 1986

HonorableGeorgePierce Chairman Committee on Urban 9:Efairs Texas Rouse of Representatives P. 0. Box 2910 Austin,Texas 7876'3
Dear Representative :?ierce: OpinionNo. JM-515
Re: Whether a city may hire non-civil servicepersonnel in positionswhich are supervised by the fire chief

You ask for zininterpretation of section 2 of article 1269m, V.T.C.S.. and whett.era city may hire non-civil service personnel to perform certainactivitieswhich are supervisedby the fire chief. It is our opinion that ,the provisions.ofarticle.1269m.the Firemen'sand Policemen's Civil ServiceAct, do not require a city to create civil service positions :forall activities of a fire department that are enumerated in section 2 of thatact.
No inflexible rule can be announced for the construction of statutes. However, the dominant consideration in construing statutes is the intentionof ,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 Houstonv. 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 SchoolDistrict, 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. SeeAttorney - GeneralOpinion JM-505 (1986). The statute governing firemen'sand 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 initiallydefined “E:Lremen” as

any membt:rof a Fire Department who draws compensation for his services as a member of said Department. The secondparagraph of section 12, chapter 325,provided that

p. 2361Honorable GeorgePierce - P,%ge2 (m-515)

[a]11officesand positions in the FireDepartment 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.ryperiod, 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 citieswhich adoptedthe civil service system createdby the act were given civil s::rvicestatus 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 'Jorth1957,writ ref'dn.r.e.); City of San Antonio v. Hahn, 274 S.W.21 162 (Tex. Civ. App. - Austin 1954,writ ref'dn.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 Antoniov. Wallace, 338 S.W.:Zd153 (Tex. 1960);.Cityof SanAntonio v. Kneupper, 338 S.W.2d 121 (Tzr. 1960);City of SanAntoniov~.Carr, 338 S.W.2d 122 (Tex. 1960). That interpretationwas equally applicable to employees of fire departments.
In 1957, section 2 cf article 1269m was amended to redefine "firemen"as

[a]nymember 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 thisAct.
Acts 1957. 55th Leg., ch. 391, 92, at 1171. That enactment also replaced the cited langua(:eof the second paragraph of section 12 providing for automaticclassificationof employeeswith the following language: All offices and positions in the Fire Department or Police Dc:partmentshall be establishedby ordinance of the City Council or governing body, provided however~ that the failure of a City Council or governingbody to establish a position by ordinance shallnot 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. 2362Honorable George Pierce - Eage 3 (JM-515)

11 of this Act or entitled to Civil Service Statusunder Section 24 of thisAct.
Texas courts have held that persons whose civil service status was establishedprior to the 1957amendment,by virtue of beingmembers of the departmentwho drew compensation for their servicesas amember 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 faithmay abolish the civil service status of positic'nsno longer entitled to coverage under article 1269m as amended :Ln 1957. City of San Antonio v. Wallace, a; City of San AntonioJ. Eneupper, id.; Welch v. Overton, 416 S.W.2d 879 (Tex. Civ. App. - Texarkanax67, writ ref'd n.r.e.1. Since the governingbody of a city by ordinancemay abolishpositions 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 legislatureagain 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,icalemergency 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:.ateto firemen. Acts 1985, 69th Leg., ch. 958, 521,at 7040.
It is our opinion that the language added in 1979does 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'zdthe 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 AmendmentNo. 2 to House

p. 2363HonorableGeorgePierce - Ps8e 4 UM-515)

Bill No. 1325, adoptedMay :!l.1979. A person within a fire department who performs an activ:ttylisted in section 2 is not a "fireman" under ,thatsection 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 grandfatherclause aofsection 24. If the Sixty-sixthLegislature intended the added sentence to change the definition, it easily could have stated that the term "firemen"means persons or personnel who perform the specifiedactivities. 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 12was designed toprovide that a particularposition is ncltcoveredby civil serviceunless it is so establishedby ordinance. I'he title to that amendmentreads, in part: by amending section 12 thereof by stopping the creation in the futureof new classifiedpositions, unless establishedby ordinance.
. . . Acts 1957, 55thLeg., ch. 391, at 1171. The relevant portion of section 12 has not been altered since 1957,but'was reenactedwithout 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 1979amendment to section 2 to require that each of the 14sted activitiesbe filled onlyby employeeshaving civil service statuswould effeci:ively repeal the 1957 amendment to section 12 and its subsequentreenactment. 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, inpar~t.that

tall1 eligibili:y lists for applicants for originalpositior,sin 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 ::uchexamination, which shall be based on the applicant's knowledge of and qualifications for fire fighting and work in the Fire Department.
. . . (Emphasisadded).
We conclude.however, that article 1269mdoesnot mandate that all the activities of a'fire department enumerated in section 2 be performed by civil servicepositions, Since 1957, the governingbody of a city

p. 2364i HonorableGeorge Pierce - P,nge5 (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 servicepositions for all the activities of a fire department that are enumerated in sec,:ion 2 of that act. 

# %$;;#j&

AttorneyGeneral of Texas
JACK HIGHTOWER First AssistantAttorneyGelera

c. MARY KELLER

ExecutiveAssistantAttorne:r General
RICK GILPIN Chairman,Opinion Committee Preparedby Nancy Sutton AssistantAttorney General

p. 2365