                            ATTORNEY GENERAL OF TEXAS
                                        GREG       ABBOTT




                                            March 4,2003



The Honorable Eugene D. Taylor                      Opinion No. GA-0027
Williamson County Attorney
Williamson County Courthouse, MLK #7                Re: Whether a “member of a fire or police
Georgetown, Texas 78626                             department” in section 142.0013 of the Local
                                                    Government Code includes employees other than
                                                    tire protection personnel or licensed peace officers
                                                    (RQ-0595JC)


Dear Mr. Taylor:

        You ask “[wlhich City employees are considered to be ‘members of the fire and police
departments[]’ for purposes of determining the applicability of [section] 142.0013(a) and (b)“’ of
the Local Government Code, which regulates the hours of labor and vacation of members of certain
municipal fire and police departments. See TEX. LOC. GOV’TCODEANN. 5 142.0013(a)-(b) (Vernon
1999).

         You are specifically concerned that a member of the fire department’s or police department’s
“civilian staff’ may be a member of the department for the purposes of section 142.0013. See
Request Letter, supra note 1, at 2. You describe “civilian employees” as “clerical, administrative[,]
and building maintenance employees.” Id. at 1.

         Section 142.0013 of the Local Government Code regulates the hours of labor and vacation
of fire and police department members in certain municipalities.       See id. Except in an emergency,
“[a] member of a fire or police department in a municipality with a population of more than 25,000
maynot...     be required to be on duty more than six days in a week.” TEX. LOC. GOV’T CODEANN.
0 142.0013(a) (V emon 1999). “A member of a fire or police department in a municipality with a
population of more than 30,000 is entitled to” fifteen paid vacation days each year if the member has
been employed in either department for one year or more. Id. 9 142.0013(b). And, in general, a
municipality must grant a fire fighter or a police officer the “same number of vacation days and
holidays, or days in lieu of vacation days or holidays,” that the municipality grants to other municipal
employees. Id. fj 142.0013(c).




         ‘Letter from Honorable Eugene D. Taylor, Williamson County Attorney, to Honorable JohnCornyn,Texas
Attorney General, at 2 (Aug. 20,2002) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Eugene D. Taylor - Page 2             (GA-0027)




      Section 142.010 of the same code defines the phrases “member of the fire department”   and
“member of the police department”:

                      (a) In this chapter, “member of the fire department” means an
              employee of the fire department who is defined as “fire protection
              personnel” by Section 4 19.02 1, Government Code.

                       (b) In this chapter, “member of the police department” means
               an employee of the police department who has been licensed as a
               peace officer by the Commission on Law Enforcement Standards and
               Education.

Id. 6j 142.010 (Vernon Supp. 2003).

        As section 142.01 O(a) makes clear, only fire protection personnel as defined by section
419.021(3) of the Government Code can be members of a fire department. See id. 6 142.010(a);
TEX. GOV’TCODEANN. §419.021(3) (Vernon Supp. 2003). Section419.021(3)         ofthe Govemrnent
Code defines “fire protection personnel” as:

                        (A) permanent, full-time law enforcement officers designated
               as fire and arson investigators by an appropriate local authority;

                      (B) aircraft rescue and fire protection personnel; or

                       (C) permanent, full-time fire department employees who are
               not secretaries, stenographers, clerks, budget analysts, or similar
               support staff persons or other administrative 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;

                          (iv) marine fire fighting;

                          (v) aircraft rescue and fire fighting;

                          (vi) fire training;

                          (vii) fire education;

                          (viii) fire administration;   and
The Honorable   Eugene D. Taylor     - Page 3       (GA-0027)




                             (ix) any other position necessarily or customarily   related
                to fire prevention or suppression.

TEX. GOV’T CODE ANN. 4 419.021(3) (Vernon Supp. 2003); see also HOUSE COMM. ON
URBAN AFFAIRS,BILL ANALYSIS, Tex. S.B. 603, 71st Leg., R.S. (1989) (stating that definition
precludes civilian fire department employees from receiving benefits); SENATE COMM. ON
INTERGOVERNMENTAL      RELATIONS,BILLANALYSIS,Tex. S.B. 603,71 st Leg., R.S. (1989) (same).
Whether a particular employee of a fire department is fire protection personnel and, accordingly,
within section 142.0013’s protections, is a question of fact, and thus is beyond the opinion process.
See Tex. Att’y Gen. Op. No. GA-0003 (2002) at 1 (stating that opinion process does not determine
facts).

         On the other hand, any police department employee who has been licensed as a peace officer,
whether or not that employee serves in a “civilian” capacity, is a member of a police department as
a matter of law. Although section 142.010(b) refers only to a peace officer license obtained from
“the Commission on Law Enforcement Standards and Education,” we construe section 142.010(b)
to refer to the Commission on Law Enforcement Officer Standards and Education. TEX. Lot. GOV’T
CODEANN. 6 142.010(b) (Vernon Supp. 2003); see TEX. GOV’T CODEANN. 8 3 11.03 l(3) (Vernon
1998) (stating that legislature intends statute to accomplish “just and reasonable result”). No
commission is named the Commission on Law Enforcement Standards and Education; rather, the
Commission on Law Enforcement gfficer Standards and Education is responsible for licensing peace
officers. See TEX. OCC. CODEANN. 0 1701.301 (Vernon 2003) (providing that, in general, no person
may serve as peace officer unless he or she “holds an appropriate license issued by” Commission on
Law Enforcement Officer Standards and Education); see also 37 TEX. ADMIN.CODEch. 2 17 (2002)
(Texas Commission on Law Enforcement Officer Standards & Education, Licensing Requirements).
Thus, any police department employee who has obtained a peace officer license from the
Commission on Law Enforcement Officer Standards and Education is a member of the police
department for the purposes of section 142.0013 of the Local Government Code.
The Honorable   Eugene D. Taylor - Page 4        (GA-0027)




                                       SUMMARY

                        Local Government Code section 142.00 13, which regulates
                the hours of labor and vacation of a member of a fire or police
                department in certain municipalities, applies only to a member of a
                fire department, as defined by section 142.010(a) of the Code, or a
                member of a police department, as defined by section 142.01 O(b).
                See TEX. LOC. GOV’T CODE ANN. $5 142.0013, 142.010 (Vernon
                1999 & Supp. 2003). Section 142.01 O(b) includes as a member of a
                police department any police department employee who has been
                licensed as a peace officer by the Commission on Law Enforcement
                Officer Standards and Education.

                                             Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kyrnberly K. Oltrogge
Assistant Attorney General, Opinion Committee
