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                                The Attorney          General of Texas
                                                 January 28, 1982
MARK WHITE
Attorney General


                              Honorable Bill Presnal                 Opinion No. WI-434
Supreme Cawl Sulldlng
P. 0. Sox 12548               Chairman
Austin. TX. 78711             Committee on Appropriations            Re: Minimum salaries of fire-
51214752501                   House of Representatives               men   under  article   1269q.
Telex 910@74-1387             Austin, Texas   78769                  V.T.C.S.
Telecopier 512f475JJ266

                              Dear Representative Presnal:
IS07 MaIn St.. suite 1400
DalIa% TX. 75201                   You have sought our opinion with respect to the following
21411428044                   question: Is a probationary firemen's trainee "a member of the fire
                              department" within the meaning of article.1269q. V.T.C.S.. so as to be
4S24.Afberla Ah, Suite 190
                              entitled to minimum compensation as established under the statute?
ElPaso.TX. 7OBC6
W32M4S4                            Article 1269q provides that certain qualifying cities may submit
                              a referendum to'its voters establishing minimum rates of compensation
                              for its firemen and policemen. Pursuant to this statute the voters of
1220Oallas
         Ave., Sulte
                   202
Houston,
       TX.77ow                the city of Victoria approved a minimum salary of $1,050.00 per month
713m5oaSS                     for firemen.

                                   -Subsequent to the election, the city established a training and
SOSsrmdwiy. Sum 312
                              probationary program whereby a new employee in its fire department is
Lubbock, TX. ~79401
806/7476238                   required to finish a course of instruction at the city's firefighting
                              academy in addition to completing one year of service with the
                              department before the employee is paid the minimum salary established
4202 N. Tenth, Suite S        by the voters. The issue presented is whether the city can withhold
McAllal. TX. 18501
5121(182-4547
                              the minimum salary from an employee because he is a probationary
                              non-certified fireman within the meaning of article 1269m, V.T.C.S..
                              the Firemen's and Policemen's Civil Service'Act.
MO MaIn Plaza, suite 400
San Antonio, TX. 78205             Article 1269q. establishing minimum rates of pay, makes no
512l225.4191
                              reference to an employee's status as determined by article 1269m. but
                              simply provides that the minimum salary as approved by the voters
An Equal Opporlunllyl         shall be paid to "each member of the fire department." The operative
Afflnnative ActIon Employec   language "each member of the fire department" finds no further
                              elaboration in     the   statute and    has  never   been   construed
                              authdritatively by Texas -courts.

                                   Bowever, in Attorney General Opinion 'O-4859 (1942) it was
                              determined that "rookie policemen" and "jail matrons" were "members
                              of" the police department within the meaning of article 1583 of the
                              former Texas Penal Code, the predecessor to article 1269q. The
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     Honorable Bill Presnal~- Page 2     (MW-434)




     opinion relied on a number of decisions from other jurisdictions that
     had construed the words "member of the department" in similar statutes
     to include all employees whether or not commissioned law enforcement
     officers.

          Also, in City of Wichita Falls v. Cox. 300 S.W.2d 317 (Tex. Civ.
     APP. - Fort Worth 1957). the Court of Civil Appeals ruled that
     non-commissioned employees of a police department were "members of a
     police department" within the meaning of article 1269m and thus
     entitled to civil service protection under the statute. Subsequent to
     this opinion the legislature amended article 1269m to restrict its
     coverage to commissioned peace officers and firefighters and exclude
     all other department employees from civil service protection. See
     City of San Antonio v. Carr, 338 S.W.2d 122 (Tex. 1960). It is-z
     some significance that the legislature did not, however, choose to
     amend former article 1583 of the Texas Penal Code [present article
     1269q1. It left intact the nearly identical language, "each member,"
     and one can reasonably infer therefrom that the legislature intended
     the minimum wage to cover all departmental employees while restricting
     civil service protection to firemen and policemen.



                   Given the plain meaning of the words "each
              member". and the legislature's conduct in this
              matter, we reaffirm the opinion of this office on
              O-4859 (1942) and hold that, when a minimum wage
              is adopted pursuant to article 1269q. it must be
              applied to all employees of a police or fire
              department. Thus, in the instant case, it would
              be a violation of article 1269q not to pay
              probationary employees of the Victoria Fire
              Department the minimum amount set by the voters in
              the most recent referendum.


                                             Very truly yours,   'A



                                             MARK      WHITE
                                             Attorney General of Texas

     JOHN W. FAINTER. JR.
     First Assistant Attorney General

     RICUARD E. GRAY III
     Executive Assistant Attorney General




                                        p. 1494
Honorable Bill Presnal - Page 3   (Mw-434)




Prepared by William 0. Goodman
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
William 0. Goodman
Jim Moellinger




                                  p. 1495
