                      November 30, 1990



Mr. Ray L. Goad             Opinion No.   .JM-1251
Executive Director
Commission on Fire          Re: Whether volunteer fire de-
  Protection Personnel      partment personnel are subject
  Standards and Education   to   requirements   established
9800 N. Lamar Blvd.         under Government Code chapter
Austin, Texas 78753         416 by the Commission on Fire
                            Protection Personnel Standards
                            and   Education,   and related
                            questions (RQ-2076)
Dear Mr. Goad:
     You ask:
          Are volunteer fire departments,      which
       receive compensation    for their    services
       through a contract to provide fire protection
       services for a governmental body, that also
       has a paid fire department, required to train
       their personnel to meet minimum training
       standards promulgated by [the Commission on
       Fire Protection Personnel Standards and Edu-
       cation]?
     Chapter 416 of the Government Code provides generally
for the authority of the Commission on Fire Protection Per-
sonnel Standards and Education [the %ommission*@].   Section
416.031 provides that a "fire department" may not employ a
person, except on a temporary or probationary basis, unless
he has completed a commission-approved training'course and
met other requirements established by the        commission.
Section 416.007(8) of the Government Code empowers the com-
mission to
      establish minimum educational, training, PM-
      sical, mental, and moral standards for admfs-
      sion to employment as fire orotection oerson-
      m   in a permanent, temporary, or probationary
      status and for advanced or specialized fire


                                  .



                             P. 6666
Mr. Ray L. Goad - Page 2      (JM-1251)




       pv                        positions.        (Emphasis
              .
See also ie, 55 416.022 (commission may establish training
requirements for "fire protection personnel or recruits"),
416.031(b)(commission may establish training and     other
standards for "fire protection personnel").
     Section 416.001(4), in subparts (A), (B), and (C), de-
fines "fire protection personnel,M for purposes of    chapter
416, to include, respectively, nfire and arson investi-
gators," "aircraft crash and rescue fire protection person-
nel," and certain employees of local fire departments.     We
assume that the personnel you are concerned about are not
fire and arson investigators or aircraft crash and rescue
personnel.   Subpart (C) provides that fire        department
employees are included within the definition of the term
"fire protection personnel" if they are
       permanent, fully paid, full-time fire deDe
       rent emolovees who     are not    secretaries,
       stenographers, clerks, budget analysts, or
       similar support staff persons or other admin-
       istrative 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 fire prevention and
            suppression. (Emphasis added.)
"Fire department" is defined in subsection (3) as




                                  P. 6667
Mr. Ray L. Goad - Page 3   (JM-1251)




       a deDartment of a lo al aovernment with perma-
       nent, fully paid, f&-time   employees organiz-
       ed to prevent or suppress fires.     (Emphasis
       added.)
     We find no statutory authorization for the establish-
ment of volunteer fire departments as "departments of local
government" within the meaning of the section 416.001(3)
definition of fire departments. Assuming the volunteer fire
departments you are concerned about are not lldepartments of
local government," they would not be "fire departments" for
purposes of the provisions of chapter 416.      Thus, their
personnel would not, by reason of their volunteer fire
department employment, fall within the ambit of section
416.031, requiring appointees of "fire departments" to meet
training and other requirements established by the commis-
sion. Nor would. they fall within the definition of "fire
protection personnel" in section 416.001(4)(C) since they
are not "fire department employees11within the meaning of
that provision. They would thus not be subject to commis-
sion 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 fire departments as political subdivisions).   But
see Attorney General Opinion JW-821 (1987) (volunteer fire
department may be llgovernmental body" for purposes of Open
Records Act, V.T.C.S. art. 6252-17a).
     We find no provision in chapter 416 or elsewhere in
state law which subjects employees of volunteer fire depart-
ments -- where the latter are not "departments of local
government" -- to the training requirements for "fire
protection personnel11 established by the commission under
chapter 416.
     You also ask:
         Do personnel who receive pay from a fire
      department (paid or volunteer), which may or
      may not be assigned fire fighting duties and
      who are employed to drive fire trucks to fire
      scenes, have to meet minimum standards of fire
      protection personnel?
     It follows from our response to your first question
that personnel of a volunteer fire department, where the
latter is not a "department of local government,w would not
be subject under section 416.031 to the training or other




                              p. 6668
Mr. Ray L. Goad - Page 4   (JM-1251)




requirements established by the commission for "appointees"
of "fire departments," since, again, volunteer fire depart-
ment personnel are not appointed by "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
protection personnel" established by the commission under
sections 416.007(8), 416.022, and 416.031(b), since, not
being "fire department employees," they are not "fire
protection personnelB1within the definition of that term in
section 416.001(4)(C).
     If the fire department employing the persons you ask
about is a "fire departmentB1within the definition of the
term in section 416.001(3) -- h,      a department of local
government, etc. -- those persons would, unless employed on
a temporary or probationary basis, be subject to the provi-
sions of.section 416.031(a) requiring that "fire department"
appointees meet commission requirements. Also,   where such
persons are full-time, fully paid, and "may . . . be as-
signed fire-fighting dutiesI1in the course of their employ-
ment, we think they would fall under the definition of "fire
protection personnel" 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
Opinion H-141 (1973) (employees of fire departments who
lSmayll
      be assigned fire-fighting duties 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) (county commissioners courts may
contract with "incorporatedB1volunteer fire departments for
fire protection in county territory outside municipalities),
the results we reach here, based on the applicable provi-
sions of law, would permit local governments to obtain the
services of firefighters from non-governmental entities
without those firefighters being subject to the commission-
requirements which 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




                              p. 6669
         ,



     ,
             Mr. Ray L. Goad - Page 5     (JM-2151)
(.




                     government, are not subject to the r;rdf;;-
                     ments of training established by the
                     sion on Fire Protection Personnel Standards
                     and Education under chapter 416 of the Gov-
                     ernment Code. A permanent, full-time, fully
                     paid employee of a fire department which is a
                     department of local government is subject to
                     commission requirements under chapter 416 if
                     the employee may be assigned firefighting
                     duties in the course of his employment.




                                                  JIM     MATTOX
                                                  Attorney General of Texas
             MARY KELLER
             First Assistant Attorney General
             LOU MCCREARY
             Executive Assistant Attorney General
             JUDGE ZOLLIE STEAKLEY
             Special Assistant Attorney General
             RENEA HICXS
             Special Assistant Attorney General
             RICK GILPIN
             Chairman, Opinion Committee
             Prepared by William Walker
             Assistant Attorney General




                                              p. 6670
