November 30, 1990

Mr. Ray L. Goad Executive Director Commission on Fire Protection Personnel Standards and Education 9800 N. Lamar Blvd. Austin, Texas 78753 OpinionNo. .JM-1251
Re: Whether volunteer fire department personnel are subject to requirements established under Government Code chapter 416 by the Commission on Fire Protection Personnel Standards and Education, and related questions (RQ-2076)
DearMr. Goad:
You ask:
Are volunteer fire departments, which receive compensation for their services through a contract to provide fireprotection services for a governmentalbody, that also has a paid firedepartment, required to train their personnel to meet minimum training standardspromulgatedby [theCommission on Fire Protection Personnel Standards and Education]? Chapter 416 of the Government Code provides generally for the authority of the Commission on Fire Protection Personnel Standards and Education [the %ommission*@]. Section 416.031provides that a "fire department"may not employ a person, except on a temporary or probationarybasis, unless he has completed a commission-approvedtraining'course and met other requirements established by the commission. Section 416.007(8) of the Government Code empowers the commission to

establishminimum educational,training, PMsical,mental, andmoral standards for admfssion to employment as fire orotection oersonm in a permanent, temporary, or probationary status and for advanced or specialized fire

.

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pv positions. (Emphasis

. See also ie, 55 416.022 (commissionmay establish training requirements for "fire protectionpersonnel or recruits"), 416.031(b)(commission may establish training and other standards for "fireprotectionpersonnel"). Section 416.001(4), in subparts (A), (B),and (C), defines "fireprotectionpersonnel,M forpurposes of chapter 416, to include, respectively, nfire and arson investigators," "aircraft crash and rescue fireprotection personnel," and certain employees of local fire departments. We assume that the personnel you are concerned about are not fire and arson investigatorsor aircraft crash and rescue personnel. Subpart (C) provides that fire department employees are includedwithin the definition of the term "fireprotectionpersonnel" if they are permanent, fullypaid, full-timefire deDe rent emolovees who are not secretaries, stenographers, clerks, budget analysts, or similar support staffpersons or other administrative employees and who are assigned duties in one or more of the following categories: (i) fire suppression: (ii) fire inspection: (iii) fire and arson investigation; (i-4 marine fire fighting;

w aircraft crash fire fighting and rescue: (vi) fire training: (vii) fire education; (viii) fire administration:and (ix) any other position necessarily or customarily related to fireprevention and suppression. (Emphasisadded.) "Firedepartment" is defined in subsection (3)as

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a deDartment of a lo al aovernmentwith permanent, fullypaid, f&-time employees organized to prevent or suppress fires. (Emphasis added.)
We find no statutory authorization for the establishment of volunteer fire departments as "departmentsof local government"within the meaning of the section 416.001(3) definition of fire departments. Assuming the volunteer fire departmentsyou are concerned about are not lldepartmentsof local government," they would not be "fire departments" for purposes of the provisions of chapter 416. Thus, their personnelwould not, by reason of their volunteer fire department employment, fall within the ambit of section 416.031, requiring appointees of "firedepartments" to meet training and other requirements establishedby the commission. Nor would. they fallwithin the definition of "fire protectionpersonnel" in section 416.001(4)(C) since they are not "fire department employees11 within the meaning of that provision. They would thus not be subject to commission training standards for "fire protection personnel, promulgated under sections 416.007(8), 416.022, and 416.031(b). m Attorney General Opinion JW-1209 (1990), at 6 n.3 (no provision for establishment of volunteer firedepartments as political subdivisions). But see Attorney General Opinion JW-821 (1987) (volunteer fire departmentmay be llgovernmentalbody" forpurposes of Open Records Act, V.T.C.S. art. 6252-17a).
We findno provision in chapter 416 or elsewhere in state lawwhich subjects employees of volunteer fire departments -- where the latter are not "departments of local government" -- to the training requirements for "fire protectionpersonnel11 establishedby the commission under chapter 416.
You also ask:
Do personnelwho receivepay from a fire department (paidor volunteer),which may or may not be assigned fire fightingduties and who are employed to drive fire trucks to fire scenes, have to meet minimum standards of fire protectionpersonnel?
It follows from our response to your first question that personnel of a volunteer fire department,where the latter is not a "departmentof local government,wwould not be subjectunder section 416.031 to the training or other

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requirementsestablishedby the commission for "appointees" of "firedepartments," since, again,volunteer fire department personnel are not appointedby "fire departmentsB1 as the term is defined in section 416.001(3). Nor would they be subject to the training and other standards for "fire protectionpersonnel" establishedby the commission under sections 416.007(8), 416.022, and 416.031(b), since, not being "fire department employees," they are not "fire protectionpersonnelB1 within the definition of that term in section 416.001(4)(C). If the fire department employing the persons you ask about is a "firedepartmentB1 within the definition of the term in section 416.001(3) --h, a department of local government, etc. -- those personswould, unless employed on a temporary or probationarybasis, be subject to the provisions of.section 416.031(a)requiring that "fire department" appointeesmeet commission requirements. Also, where such persons are full-time, fully paid, and "may
. . .be assigned fire-fightingdutiesI1in the course of their employment, we think they would fall under the definition of "fire protectionpersonnel" in section 416.001(4)(C) so as to make them subject to the requirements for "fire protection personnel" established by the commission under sections 416.007(8), 416.022, and 416.031(b). &R Attorney General OpinionH-141 (1973) (employeesof fire departments who lSmayll be assigned fire-fightingduties are subject to the training requirements of the commission).
We acknowledge that to the extent that cities or other units of local government may contract for fire protection services rather than provide them directly, see. e.a,, Local Gov't Code 5 352.001(c) (countycommissioners courts may contractwith "incorporatedB1 volunteer fire departments for fireprotection in county territory outsidemunicipalities), the resultswe reachhere, based on the applicable provisions of law,would permit local governments to obtain the services of firefighters from non-governmental entities without those firefightersbeing subject to the commissionrequirementswhich would generally apply to them if they were employed directly by the local governments* fire departments. Whether, as a policy matter, this situation needs to be addressed is, of course, for the legislature and not this office to decide.

Personnel of a volunteer fire department, where the latter is not a department of local

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government, are not subject to the r;rdf;;- ments of training establishedby the sion on Fire Protection Personnel Standards and Educationunder chapter 416 of the Government Code. A permanent, full-time, fully paid employee of a firedepartmentwhich is a department of local government is subject to commission requirementsunder chapter 416 if the employee may be assigned firefighting duties in the course of his employment.

JIM MATTOX Attorney General of Texas
MARY KELLER FirstAssistant Attorney General
LOU MCCREARY ExecutiveAssistant Attorney General
JUDGE ZOLLIE STEAKLEY SpecialAssistant Attorney General
RENEA HICXS SpecialAssistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by William Walker AssistantAttorney General

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