Does a Texas city have to make every job in its fire department a civil service position, or can it hire regular non-civil-service staff for work supervised by the fire chief?

Texas AG Opinion JM-515: Fire Department Civil Service Positions

Plain-English summary

The chairman of the House Committee on Urban Affairs asked whether a city may hire non-civil-service personnel for positions supervised by the fire chief, under section 2 of article 1269m, the Firemen's and Policemen's Civil Service Act. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

JM-515 concluded that article 1269m does not require a city to create civil service positions for all the activities of a fire department listed in section 2. The history of the statute drove the answer. When the act was first passed in 1947, courts read it to give civil service status automatically to all fire and police department employees. But a 1957 amendment changed that: after 1957, offices and positions are established by ordinance of the city council, and failing to establish a position by ordinance no longer results in loss of civil service benefits for someone who otherwise qualifies. Texas courts have held that a city acting in good faith may abolish civil service positions no longer entitled to coverage, and the AG reasoned that a city may likewise, in good faith, decline to create them. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

The opinion also addressed a 1979 amendment that added a sentence listing activities like fire prevention, fire training, fire safety education, and fire administration. The AG concluded that sentence did not expand who counts as a "fireman." It says the term includes "firemen" who perform those functions, not "persons" or "personnel" who do. The legislative record backs this up: the House floor amended the bill to strike "personnel" and substitute "firemen." So a person in a fire department who performs a listed activity is not a fireman under section 2 unless he has earned civil service status under sections 9, 10, and 11 or qualifies under the original grandfather clause in section 24. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Article 1269m, V.T.C.S., has since been recodified into the Texas Local Government Code, where the municipal civil service provisions now live. Treat this page as historical context, not current legal advice, and check the current Local Government Code provisions before relying on any rule mentioned here.

Common questions

Does a city have to put every fire department job under civil service?

No. JM-515 concluded that article 1269m does not require a city to create civil service positions for all the activities of a fire department enumerated in section 2 of the act. Some activities can be staffed by non-civil-service personnel. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

How does a fire department position become a civil service position today?

By ordinance. Since the 1957 amendment, the governing body of a city establishes new civil service positions in the fire department by ordinance. The AG reasoned that a governing body acting in good faith may decline to create a civil service position, just as courts have allowed cities acting in good faith to abolish positions no longer entitled to coverage. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

Didn't the 1979 amendment listing fire prevention and training expand civil service coverage?

No. The AG read the 1979 sentence to describe functions performed by firemen, not to add a new class of covered people. It says the term "firemen" includes "firemen" who perform those functions, not "persons" or "personnel." The House floor deliberately replaced "personnel" with "firemen," which the AG treated as strong evidence the legislature did not mean to sweep in all staff who perform those activities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

When does someone performing fire-related duties count as a "fireman" with civil service protection?

Only if the person has earned civil service status by appointment in substantial compliance with sections 9, 10, and 11 of the act, or is entitled to it under the original grandfather clause in section 24. Performing a listed activity, by itself, does not make a person a fireman under section 2. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

How are civil service firefighter positions filled?

Through competitive examination. Section 9 requires eligibility lists for original positions in the fire and police departments to be created only through examinations based on the applicant's knowledge of and qualifications for firefighting and fire department work, and appointments must come from those exams. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

Background and statutory framework

The opinion is a statutory-construction exercise built on the legislative history of article 1269m. It started with the interpretive rule that the dominant consideration is legislative intent, derived from a general review of the entire enactment and read in context, citing City of Houston v. Morgan Guaranty International Bank, Nichols v. Aldine Independent School District, Holcombe v. Levy, and the AG's own opinions JM-504 (1986) and JM-505 (1986). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

The act was passed in 1947 as chapter 325 and originally defined "firemen" broadly as any member of a fire department drawing compensation, with an automatic-classification provision in section 12. Under that early version, courts (City of San Antonio v. Handley, City of Wichita Falls v. Cox, and the City of San Antonio cases at 338 S.W.2d) generally held all department employees received civil service status. The 1957 amendment redefined "firemen" to require appointment in substantial compliance with sections 9, 10, and 11 or entitlement under section 24, and replaced automatic classification with a rule that positions are established by ordinance. Courts then recognized that cities acting in good faith could abolish positions no longer covered (Welch v. Overton), while those whose status vested before 1957 kept their protection. The AG reasoned that the power to decline to create positions follows from the power to abolish them. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

Finally, the opinion parsed the 1979 amendment (reenacted without relevant change in 1985) that added a sentence listing fire suppression, prevention, training, safety education, maintenance, communications, medical emergency technology, photography, and administration. Reading the text ("includes firemen who perform") together with the floor amendment that struck "personnel" and inserted "firemen," the AG concluded the sentence did not enlarge the covered class or repeal the 1957 ordinance requirement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

Statutory provisions:

• V.T.C.S. art. 1269m (§§ 2, 9, 10, 11, 12, 24), the Firemen's and Policemen's Civil Service Act
• Acts 1947, 50th Leg., ch. 325; Acts 1957, 55th Leg., ch. 391; Acts 1979, 66th Leg., ch. 753; Acts 1981, 67th Leg., ch. 215; Acts 1985, 69th Leg., ch. 958

Cases:

• City of Houston v. Morgan Guaranty International Bank, 666 S.W.2d 524, 529 (Tex. App. - Houston [1st Dist.] 1983, writ 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.)
• City of San Antonio v. Handley, 308 S.W.2d 608 (Tex. Civ. App. - San Antonio 1957, writ ref'd)
• City of Wichita Falls v. Cox, 300 S.W.2d 317 (Tex. Civ. App. - Fort Worth 1957, writ ref'd n.r.e.)
• City of San Antonio v. Hahn, 274 S.W.2d 162 (Tex. Civ. App. - Austin 1954, writ ref'd n.r.e.)
• City of San Antonio v. Wiley, 252 S.W.2d 471 (Tex. Civ. App. - San Antonio 1952, writ ref'd n.r.e.)
• City of San Antonio v. Wallace, 338 S.W.2d 153 (Tex. 1960)
• City of San Antonio v. Kneupper, 338 S.W.2d 121 (Tex. 1960)
• City of San Antonio v. Carr, 338 S.W.2d 122 (Tex. 1960)
• Welch v. Overton, 416 S.W.2d 879 (Tex. Civ. App. - Texarkana 1967, writ ref'd n.r.e.)

The opinion also cited Attorney General Opinions JM-325 (1985), JM-504 (1986), and JM-505 (1986).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0515
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0515.pdf

Original opinion text

Best-effort transcription from a scanned PDF via OCR. Minor OCR errors may remain; the linked PDF is authoritative.

The Attorney General of Texas

July 10, 1986

JIM MATTOX
Attorney General

Honorable George Pierce
Chairman
Committee on Urban Affairs
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-515

Re: Whether a city may hire non-civil service personnel in positions which are supervised by the fire chief

Dear Representative Pierce:

You ask for an interpretation of section 2 of article 1269m, V.T.C.S., and whether 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 International Bank, 666 S.W.2d 524, 529 (Tex. App. - Houston [1st Dist.] 1983, writ 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 10,000 inhabitants originally was enacted by the Fiftieth Legislature in 1947 as chapter 325. Section 2 of that act initially defined "Firemen" as

any member 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

[a]ll offices and positions in the Fire Department or Police Department shall be established by ordinance of the City Council or governing body, provided, however, if the officer or employee shall have been permitted to serve the six (6) months probationary 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 office 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 service status under that system. See City of San Antonio v. Handley, 308 S.W.2d 608 (Tex. Civ. App. - San Antonio 1957, writ ref'd); City of Wichita Falls v. Cox, 300 S.W.2d 317 (Tex. Civ. App. - Fort Worth 1957, writ ref'd n.r.e.); City of San Antonio v. Hahn, 274 S.W.2d 162 (Tex. Civ. App. - Austin 1954, writ ref'd n.r.e.); City of San Antonio 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.2d 153 (Tex. 1960); City of San Antonio v. Kneupper, 338 S.W.2d 121 (Tex. 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 of article 1269m was amended to redefine "firemen" as

[a]ny member of the 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, § 2, at 1171. That enactment also replaced the cited language 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 Department 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 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, id.; Fox v. Purcell, 306 S.W.2d 814 (Tex. Civ. App. - Fort Worth 1957, no writ), per curiam. The courts also have held that home rule cities acting in good faith may abolish the civil service status of positions no longer entitled to coverage under article 1269m as amended in 1957. City of San Antonio v. Wallace, id.; City of San Antonio v. Kneupper, id.; Welch v. Overton, 416 S.W.2d 879 (Tex. Civ. App. - Texarkana 1967, writ ref'd n.r.e.). 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, fire prevention, fire training, fire safety education, fire maintenance, fire communications, fire medical emergency technology, fire photography, or fire administration. (Emphasis added).

Acts 1979, 66th Leg., ch. 753, § 2, at 1856. In 1985, the legislature reenacted section 2 without change to the first two sentences, which are the provisions that relate to firemen. Acts 1985, 69th Leg., ch. 958, § 21, 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 "firemen" who perform the named functions, some of which are not firefighting in the usual sense. The legislature could not have intended the term to include all "personnel" who perform the enumerated functions, 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 Bill No. 1325, adopted May 21, 1979. A person within a fire department who performs an activity listed in section 2 is not a "fireman" under that section unless the person has earned civil service status as provided by sections 9, 10, and 11 or is entitled to it under the original grandfather clause of 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 status. See, e.g., City of San Antonio v. Handley, id. The amendment to section 12 was designed to provide that a particular position is not covered by civil service unless it is so established by ordinance. The 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, § 12, at 1858. To construe the 1979 amendment to section 2 to require that each of the listed activities be filled only by employees having civil service status would effectively 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 part, that

[a]ll eligibility lists for applicants for original positions in the Fire and Police Departments shall be created 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 such 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 by ordinance establishes any new civil service positions in the fire department.

SUMMARY

The Firemen's and Policemen's Civil Service Act, article 1269m, V.T.C.S., does not require a city to create civil service positions for all the activities of a fire department that are enumerated in section 2 of that act.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General