                                      The Attorney            General         of Texas

JIM MAl-lOX                                               June 13, 1985
Attorney General


                                     Bonorabla Dale Eama.                     Opinion No.     JM-325
suprsma Court Buitdlnq
P. 0. Box 12548
                                     Johnson County Attorney
Austin. TX. 78711.2s                 1st Floor Courthowe                      RLE: Whether a city police depart-
5lW7~2501                            Cleburue, Texas    16031                 mant dispatcher    ia coverad by civil
Telex 9101874.1367                                                            service   protection    under article
T&coDler 512147M~
                                                                              12691. V.T.C.S.

714 J.CkSO”. Suite 700               Dear Mr. llama:
Dallas.lx
        752024506
21417428S44                               You have ask&       the following   ,thrce queatlous     regarding   the   city
                                     of Clebtinie’s police    departmane:
4S24 A,t,efla Ave., .%lt* 160
EI PSSO. TX. 799052793                              1. Whether a police     department dispatcher’s
WY53S3484                                       positiou   1s entitled   to civil  service  coverage
                                                under artkle   1269~. V.T.C.S.
 1001 Texas. Suite 700
                                                    2.   II’ such position     is already        covered by
 Houston. TX. 77002~3111
 713/223-5356                                   article    1269m. cau the city      council      rkmove the
                                                position    from civil service   coverage?

 806 Broadway. Suite 312                            3.   If’ it is not legally   poasible    to remoxe the
 ClJbbock, TX. 79401347s
                                                diapatcL:r     poritlon from civil   sen+ze     coverage is
 am747-5238
                                                section $1, paragraph     5 of article    1269m unconsti-
                                                tutional    as applied    to a police     dirpartment dis-
 4309 N. Tenth. SuiteS                          patcher’@, positlout.          2
 McAIlen. TX. 7850%1685
 51me.2a47
                                            The statute gtnrernlug fireman’s    and policeman’s civil   sewIce  iu
                                     cities   of over 10,000 inhabitants     was originally    enacted as chapter
  200 M&l   Plus, Sub    *oo    __   325 of the Acts oii the Fiftieth     ~Legislature.     Acts 1947. 50th Leg..
  tan Antonio. TX. 782C527W          ch. 325, at 550. fection 2 thereof       initially  defined “policeman” as
  .512/2254181

                                                any member of the Police      Department vho dreve
  An Equal OpportunttY~                         compensation for his setvices   ae a mamber of said
  Aillrm~tlvs
            *ction EmPtoYer                     Departumt.

                                     Acts 1947. 50th Leg., ch. 325. I2. at 551.    The second paragraph                     of
                                     section 12 of article 1269m; aa originally enacted, provided that

                                                [all1 offices   and positions     in the Fire Department
                                                or Police     Department    shall    be established   by
                                                ordinance of the City Council or governing body,




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Honorable   Dale llama     - Page   2   ((m-325)




            provided,    bowever,   lf   the officer    or employee
            ahsll   have been perr~ltted     to serve the six (6)
            months probationary      period,   the service     of said
            officer   or employee shall      ipao facto    constitute
            the creation of the mid position         or office   under
            a civil   service clawif ication.

Acte 1947, 50th Leg.,     ch. 325. 112, at 554.          On the basis   of these
provlsious     it was generally    lwld that    all   employee8 of the police
department in cities    which adopted the civil       eemice system created by
the act were given civil      service   status under that system.        See City
of San Antonio v. Dandley,         X)8 S.W.2d 608 (Tex. Civ.         App. - San
Antonio 1957, writ ref’d);       City of Wichita      Palle v. Cox. 300 S.W.2d
317, (Tex. Civ. App - Fort WoX        1957, writ ref’dm              City of San
Antonio v. Eahn, 274 S.W.2d 162 (Tex. Civ. App. - Auetiu 1954, writ
ref’d n.r.e.);    City of San Antonio v. Wiley, 252 S.U.Zd 471 (Tex. Civ.
APP . - San Autonio 1952, wriF ref’d         n.r.e.).      See also City of San
Antonio v. Wallace.    338 S.W.2d 153 (Tax. 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).

        In 1957, section     2 vas mended to redefine    “policeman”     as

             [a]ny member of the Police Department appointed to
             such position   In substantial    compliance vith the
             prwiaions   of Sections   9, 10. end 11 of this Act.
             or entitled   to Civil  Service  Status under Section
             24 of this Act.

Acts 1957. 55th Leg.,      ch. 391. 61, at 1171.    Thst enactment slso
replaced   the -cited  language of the second paragraph   of section   12
providing   for automatic classlficatiou of employees vith the following
language :

                 All offices    aud positions    in the Fire Depart-
             ment or Police ‘Depcztment ahall 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 shell not result       in the loas of Civil
             Service   benefits    mder    this   Act by auy person
             appointed    to such position      in substanttil      com-
             pliance with the p~ccrvisioas of Sections 9, 10 and
             11 of this      Act,  m entitled        to Civil   Service
             Status under Sectics. 24 of this Act.

 Acts 1957, 55th Leg., ch. 39’1., 13. at .1172. It has been clearly    held
 that employees vhose civil smvice status was established     prior to the
 1957 amendment retained the f,Jll protection   of that statute.   City of




                                         p. 1486
f
    Honorable   Dale Hanns - Page 3         (JM-325)




    San Antonio v. Aandley. 308 !;.U.26 at 611; Cox v. Russell,     306 S.U.2d
    814 (Tex. Civ. App. - Fort Worth 1957. no writ).      per curiau.   On the
    other hand, it has also been well established      thst a hone rule city
    acting in good faith may sbolish  the civil  service atatus of positions
    no longer entitled   to coverage   under article    1269n. as amended in
    1957. City of San Antonio v. Wallace.     338 S.U.2d at 156; City of San
    Antonio  v. Kneupper. 338 S.V?Zd at 121; Welch v. Overton, 416 S.W.2d
    879 (Tex. Civ. App. - Texarkana 1967. writ ref’d n.r.e.).

          The city of Cleburne if a hone rule city entitled           to adopt the
    civil   service   system of article      12690.   When it did so in 1955 it
    Included, as the court deciskns        Indicate vas correct at the time. the
    position    of police    department    dispatcher   under its   civil    service
    system.    On the basis of the ‘1957 amendments to article       1269m and the
    subsequent court decisions.        ICleburne may renbve such position        from
    civil   service   coverage in the future      so long as It does so in good
    faith and does not purport to affect        the protected status of employees
    whose civil    service ststus has been previously      fixed.  See City of San
    Antonio v. Dandley.       308 S.F’.2d at 611.     On the basisof      this con-
    clusion we have no need to deal with your third question.




                    While   current   employees   in the position      of
                police    department dispatcher    nay not have their
                civil   service  protection   eliminated.   the city of
                Clebume nay remove the position       of police depart-
                ment dispatcher     f,com the coverage of its      civil
                service system for the future.




                                                  J k  Very truly




                                                       JIM
                                                             A

                                                       Attorney
                                                                    yours




                                                                  MAfTOX
                                                                   General of Texas

    TOM GREEN
    First Assistant     Attorney   Gewral

    DAVID R. RICHARDS
    Executive Assistant     Attorney   General

    ROBERTGRAY
    Special Assistant     Attorney   General

    RICK GILPIN
    Chairman. Opinion Counaittee




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Honorable   Dale   Eanna - Pale   4   W-325)




Pteparad by Colin J. Carl
Anslntant Attorney Genaral

APPROVED:
OPINION COWITl'EPs

Rick Gilpin,   Chairmen
Colin Carl
Sussn Garrison
Tony Gufllory
Jim Moallinger
Jennifer Riggs
Nancy Sutton
BNC~ Youngblood




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