-                                                            ~. .~
                                    ATTORNEY GENERAL OF TEXAS
                                                 GREG         ABBOTT




                                                     August 25,2004



    The Honorable Susan D. Reed                                 Opinion No. GA-0238
    Bexar County Criminal District Attorney
    Bexar County Justice Center                                 Re: Whether deputy sheriffs are “police officers”
    300 Dolorosa, Fifth Floor                                   for purposes of Local Government Code chapter
    San Antonio, Texas 78205-3030                               174, The Fire and Police Employee Relations Act
                                                                (RQ-01 89-GA)

    Dear Ms. Reed:

           You ask whether deputy sheriffs are “police officers” for purposes of Local Government
    Code chapter 174, The Fire and Police Employee Relations Act, TEX. Lot. GOV’T CODE ANN.
    3s 174.001-,253 (Vernon 1999 & Supp. 2004); see also id. § 174.001 (Vernon 1999) (short title).’

             The legislature enacted the statutory predecessor to chapter 174, former article 5154c-1, in
     1973’ and then repealed and codified the former law in the Local Government Code without
    substantive change in 1993.’ Chapter 174 provides fire fighters and police officers with the right to
    organize for collective bargaining. See id. $5 174.002(b), ,023. A political subdivision is subject
    to chapter 174 if(i) its governing body receives a petition to order an election for chapter 174’s
    adoption for fire fighters, police officers, or both and (ii) a majority of the voters subsequently
    approve chapter 174’s adoption at the election. See id. $5 174.051-,052. On chapter 174’s adoption
    by a political subdivision, “tire fighters, police officers, or both are entitled to organize and bargain
    collectively with their public employer regarding compensation, hours, and other conditions of
    employment.” Id. 9 174.023.




               ‘Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable Greg Abbott,
    Texas Attorney General (Mar. 2,2004) (on tile with Opinion Committee, also avaihble af http://www.oag.state.tx.us)
    [hereinafter Request Letter].

             ?%eAct   ofApr.   25,1973,63d   Leg., R.S., ch. 81,1973   Tex. Gen. Laws 151

              ‘See Act of May 12, 1993,73d Leg., RX, ch. 269, $5 4 (adopting Local Government Code chapter l74), 5
    (repealing former article 515411-l), 6 (“This Act is intended as a recodification only, and no substantive change in the
    law is intended by this Act.“), 1993 Tex. Gen. Laws 987, 1263, 1273.
    The Honorable       Susan D. Reed - Page 2                (GA-0238)




             You explain that the Deputy Sheriffs Association of Bexar County presented a petition to
    the Bexar County Commissioners Court to conduct an election to determine whether deputy sheriffs
    “shall be entitled to collectively bargain with the County.” Request Letter, supra note 1, at 1. The
    commissioners court called an election for May 15,2004, see id., at which a majority of the voters
    voted to adopt chapter 174. See Bexar County Elections Dep’t-Past Election Report Files, available
    athttp://www.bexar.org/election/Past      Election-Report  Files/pas-election-report files.html. You
    ask whether deputy sheriffs are “police officers” entitled to collectively bargain under Local
    Government Code chapter 174. See Request Letter, supra note 1, at 1.

              Section 174.003 defines the term “police officer” to mean “a paid employee who is sworn,
    certified, and full-time, and who regularly serves in a professional law enforcement capacity in the
    police department of apolitical subdivision. The term does not include the chiefofthe department.”
    TEX.Lot. GOV’T CODE ANN. 3 174.003(3) (Vernon Supp. 2004). With respect to the term “political
    subdivision,” section 174.003(4) merely provides that the term “includes a municipality.”         Id.
    5 174.003(4). The term “public employer” means

                       the official or group of officials of a political subdivision whose duty
                       is to establish the compensation,       hours, and other conditions of
                       employment of tire fighters, police officers, or both, and may include
                       the mayor, city manager, town manager, town administrator,
                       municipal governing body, director of personnel, personnel board,
-
                       commissioners, or another official or combination of those persons.

    Zd. 5 174.003(5).  In addition, section 174.004 provides                 that “[tlhis chapter shall be liberally
    construed.” Id. 5 174.004 (Vernon 1999).

             Section 174.003’s definitions do not expressly include deputy sheriffs within the meaning
    of “police officer” or counties within the meaning of “political subdivision.” See id. 5 174.003(3)-
    (4) (Vernon Supp. 2004). As you note, however, several courts have concluded that chapter 174
    applies to counties and county law enforcement officers.

             In 198 1, the first court to consider the question held that chapter 174’s statutory predecessor,
    former article 5 154c- 1, applied to deputy sheriffs. See Comm ‘rs Ct. ofEl Paso County v. El Paso
    County Sheriffs Deputies Ass’n, 620 S.W.2d 900, 901 (Tex. Civ. App.-El Paso 1981, writ ref d
    n.r.e.). Much like chapter 174, the former law applied to “each sworn certified full-time paid
    employee, whether male or female, who regularly serves in a professional law enforcement capacity
    in the police department of any city, town, or other political subdivision within the state, with the
    sole exception of the chief of the department.“4 Noting that the evidence established that the deputy
    sheriffs were sworn and certified and served in a professional law enforcement capacity, that
    counties are political subdivisions under Texas law, and that the statute calls for a liberal




             ‘SeeActofApr.     25,1973,63dLeg.,R.S.,ch.81,§      3,1973TexGen.   Laws 151,152(adoptingartic1e5154c-I,
    section 3(2) defining “policeman”).
     The Honorable   Susan D. Reed - Page 3         (GA-0238)




     construction, see id. at 901-02, the court determined that “it must be concluded that deputy sheriffs
     and their public employer, counties, are included and covered by the Act,” id. at 902. The court
     expressly considered and disapproved Attorney General Opinion H-918 (1976), which had
     concluded that former article 5 154c-1 didnot applyto sheriffs’ departments. See id. (“The reasoning
     and lack of authorities in that opinion leaves us unpersuaded.“).

              In addition, two subsequent cases, Webb County v. Webb CountyDeputiesAss        ‘n, 768 S.W.2d
     953 (Tex. App.-San Antonio 1989, no writ), and El Paso County Sheriffs Deputies’ Ass’n Y.
     Samaniego, 803 S.W.2d 435 (Tex. App.-El Paso 1991, no writ), concluded that former article
     5154c-1 applied to county-employed      detention officers and jailers who were sworn, certified, and
     serving in a professional law enforcement capacity. See Webb County, 768 S.W.2d at 955,
     Sumaniego, 803 S.W.2d at 437. The former law’s 1993 repeal and codification has not affected
     these holdings. SeeLeev. ElPaso County, 965 S.W.2d 668,672 n.14 (Tex. App.-El Paso 1998, pet.
     denied) (“In 1973, the Legislature granted fire fighters and police officers the right to collectively
     bargain and organize. The newest version of the statute, the Fire and Police Employees Relations
     Act         allows tire fighters and police officers to form an association to represent them in
     negotiations and disputes between them and their public employers. Although sheriffs and officers
     of sheriffs departments are not specifically covered by the Act, this court has interpreted the Act to
     include sheriffs departments.“).

              You suggest, however, that a more recent case construing former article 5 154c-1, City of Sun
-.
     Antonio v. San Antonio Park Rangers Ass’n, 850 S.W.2d 189 (Tex. App.San Antonio 1992, writ
     denied), indicates that chapter 174 does not apply to counties and deputy sheriffs. In Sun Antonio
     Park Rangers Ass ‘n, the court considered whether city park rangers were entitled to collectively
     bargain under former article 5 154c-1. The court concluded that the park rangers were not subject
     to the statute because they were not employed by the city’s police department and therefore did not
     fall within the statutory definition’s scope:

                     [W]e hold that “in the police department” excludes San Antonio Park
                     Rangers. The ordinary meaning of the term “the” connotes a singular
                     entity. The San Antonio Park Rangers Department is a separate entity
                     from the San Antonio Police Department.       Therefore, “the police
                     department” must mean the San Antonio Police Department but not
                     the San Antonio Park Rangers.

     San Antonio Park Rangers Ass’n, 850 S.W.2d at 192-93.

               We disagree that San Antonio ParkRangers Ass’n is dispositive here. While the court cited
     legislative testimony from the former law’s 1973 enactment suggesting that the legislature may not
     have intended the statute to apply to a sheriffs office, see id. at 192, the issue whether the former
     law applied to counties or deputy sheriffs was not before the court. This office is bound by the court
     decisions that address the issue and directly hold that former article 5154c-1 applies to counties,
     deputy sheriffs, and other county law enforcement officers. Moreover, in the years since the first
The Honorable      Susan D. Reed - Page 4             (GA-0238)




such court holding in 198 1, no court has disagreed with these holdings,’ nor has the legislature acted
to amend former article 5154c-1 or chapter 174 to exclude counties or deputy sheriffs from the law’s
scope. Accordingly, we must conclude that chapter 174 of the Local Government Code applies to
counties and deputy sheriffs and that deputy sheriffs are “police officers” within its scope.




          ‘In San Antonio Park Rangers Ass ‘n, the court distinguished Webb Counfy on the basis that the only question
on appeal in that case was whether Webb County detention ofkers and jailers were included in the existing collective
bargaining unit for deputy sheriffs. See San Antonio Park Rangers Assh, 850 S.W.2d at 193. The court did not
disapprove of the holding in Webb County or the other cases that former article 5 154~1 applies to counties 01 deputy
sheriffs.
The Honorable   Susan D. Reed - Page 5       (GA-0238)




                                     SUMMARY

                         Chapter 174 of the Local Government Code, The Fire and
                Police Employee Relations Act, applies to counties and deputy
                sheriffs. Deputy sheriffs are “police officers” under the Act.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, O&ion   Committee
