Do volunteer firefighters in Texas have to meet the state's firefighter training standards?

Texas AG Opinion JM-1251: Are Volunteer Firefighters Subject to State Training Standards?

Plain-English summary

The Commission on Fire Protection Personnel Standards and Education asked whether the firefighters of a volunteer fire department have to meet the minimum training standards the commission sets under chapter 416 of the Government Code. The specific setup was a volunteer fire department that gets paid, through a contract, to provide fire protection services for a governmental body that also runs a paid fire department.

The Attorney General concluded that the training standards did not reach the volunteers, because of how chapter 416 defines its terms. The commission's training authority runs to "fire departments" and "fire protection personnel." A "fire department" is defined in section 416.001(3) as "a department of a local government with permanent, fully paid, full-time employees organized to prevent or suppress fires." The opinion found no statutory authority for treating a volunteer fire department as a "department of local government." So a volunteer fire department that is not part of a local government is not a "fire department" under chapter 416, its members are not appointees of a "fire department" under section 416.031, and they are not "fire protection personnel" under section 416.001(4)(C), which covers permanent, fully paid, full-time fire department employees. With none of those definitions met, the commission's training standards under sections 416.007(8), 416.022, and 416.031(b) did not apply to them.

The answer flips when the fire department is a department of local government. In that case, its appointees, unless hired on a temporary or probationary basis, must meet the commission's requirements under section 416.031(a). And a permanent, full-time, fully paid employee who "may be assigned fire-fighting duties" falls within the definition of "fire protection personnel" in section 416.001(4)(C), so the commission's standards apply. That distinction, based on whether firefighting duties may be assigned, tracked an earlier opinion, Attorney General Opinion H-141 (1973).

The opinion added one observation about the practical effect. Because local governments may contract out for fire protection rather than provide it directly (for example, under Local Government Code section 352.001(c), a county commissioners court may contract with an incorporated volunteer fire department for fire protection in county territory outside municipalities), its reading let a local government obtain firefighter services from a non-governmental entity without those firefighters being subject to the commission requirements that would apply to the local government's own fire department employees. Whether that situation should be addressed, the opinion said, was for the legislature and not the Attorney General to decide.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or standard mentioned here.

Who this opinion affected (as of 1990)

Volunteer fire departments not organized as part of a local government: The opinion meant their members were not, by reason of that volunteer service, subject to the commission's chapter 416 training standards, because the department was not a "fire department" and its members were not "fire protection personnel" under the statutory definitions.

Local governments with their own paid fire departments: For a fire department that is a department of local government, the opinion confirmed that permanent, full-time, fully paid appointees had to meet commission requirements under section 416.031(a), and that an employee who might be assigned firefighting duties fell within "fire protection personnel" subject to the commission's standards.

The Commission on Fire Protection Personnel Standards and Education: The opinion marked the boundary of the commission's reach. Its training authority attached to local-government fire departments and their qualifying employees, not to volunteer departments outside local government, even when those volunteers were paid under a service contract.

Counties and cities contracting for fire protection: The opinion noted that contracting with an incorporated volunteer fire department (as section 352.001(c) allows for county territory outside municipalities) produced firefighters who were not subject to the commission requirements, and flagged that any policy concern about that was for the legislature.

Common questions

Do volunteers at a volunteer fire department have to meet state firefighter training standards?
Under this opinion, not if the volunteer fire department is not a department of local government. Chapter 416's training standards applied to "fire departments" and "fire protection personnel," and a volunteer department outside local government fit neither definition.

What makes a fire department a "fire department" under chapter 416?
Section 416.001(3) defined it as a department of a local government with permanent, fully paid, full-time employees organized to prevent or suppress fires. The opinion found no authority to treat a volunteer department as a department of local government.

Does it matter that the volunteers are paid under a contract?
Under this opinion, no. Being paid through a service contract did not make the volunteer department a "department of local government" or make its members "fire protection personnel," so the commission's standards still did not apply.

When do the commission's standards apply to a fire department employee?
When the department is a department of local government, its appointees (other than temporary or probationary hires) had to meet commission requirements under section 416.031(a), and a permanent, full-time, fully paid employee who might be assigned firefighting duties was "fire protection personnel" subject to the standards.

Background and statutory framework

Chapter 416 of the Government Code set up the Commission on Fire Protection Personnel Standards and Education and its authority over training. Section 416.031 provided that a "fire department" may not employ a person, except on a temporary or probationary basis, unless the person has completed a commission-approved training course and met other commission requirements. Section 416.007(8) empowered the commission to establish minimum educational, training, physical, mental, and moral standards for admission to employment as fire protection personnel, with related grants in sections 416.022 and 416.031(b).

The definitions did the decisive work. Section 416.001(3) defined "fire department" as "a department of a local government with permanent, fully paid, full-time employees organized to prevent or suppress fires." Section 416.001(4) defined "fire protection personnel" in subparts (A), (B), and (C) to include fire and arson investigators, aircraft crash and rescue fire protection personnel, and, in subpart (C), permanent, fully paid, full-time fire department employees (other than clerical and administrative support staff) assigned duties in categories such as fire suppression, inspection, investigation, marine and aircraft firefighting and rescue, training, education, and administration. Because the opinion found no statutory authority to treat a volunteer fire department as a department of local government, a volunteer department outside local government was not a "fire department," and its members were not "fire protection personnel," so the commission's training standards under sections 416.007(8), 416.022, and 416.031(b) did not apply to them.

For a fire department that is a department of local government, the analysis ran the other way: appointees had to meet commission requirements under section 416.031(a) unless temporary or probationary, and a full-time, fully paid employee who might be assigned firefighting duties was "fire protection personnel" under section 416.001(4)(C). The opinion supported the firefighting-duties test with Attorney General Opinion H-141 (1973). It distinguished the volunteer-department context from Attorney General Opinion JM-1209 (1990) (noting no provision for establishing volunteer fire departments as political subdivisions) and Attorney General Opinion JM-821 (1987) (a volunteer fire department may be a "governmental body" for purposes of the Open Records Act, V.T.C.S. article 6252-17a). It closed by noting that Local Government Code section 352.001(c) lets county commissioners courts contract with incorporated volunteer fire departments for fire protection in county territory outside municipalities, and that any policy concern about firefighters obtained that way falling outside commission requirements was for the legislature.

Citations

Statutory authorities:

• Government Code ch. 416 (Commission on Fire Protection Personnel Standards and Education)
• Government Code § 416.001(3) (definition of "fire department"); § 416.001(4)(C) (definition of "fire protection personnel")
• Government Code § 416.007(8) (minimum standards for admission to employment); § 416.022 (training requirements); § 416.031 (appointee requirements; subsections (a) and (b))
• Local Government Code § 352.001(c) (county contracts with incorporated volunteer fire departments)

Prior Attorney General opinions referenced:

• Attorney General Opinion H-141 (1973) (fire department employees who may be assigned firefighting duties are subject to commission training requirements)
• Attorney General Opinion JM-1209 (1990) (no provision for establishing volunteer fire departments as political subdivisions)
• Attorney General Opinion JM-821 (1987) (a volunteer fire department may be a "governmental body" for the Open Records Act, V.T.C.S. art. 6252-17a)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1251
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1251.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

November 30, 1990

Mr. Ray L. Goad
Executive Director
Commission on Fire Protection Personnel Standards and Education
9800 N. Lamar Blvd.
Austin, Texas 78753

Opinion No. JM-1251

Re: Whether volunteer fire department personnel are subject to requirements established under Government Code chapter 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 Education]?

Chapter 416 of the Government Code provides generally for the authority of the Commission on Fire Protection Personnel Standards and Education [the "commission"]. 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 commission to

    establish minimum educational, training, physical, mental, and moral standards for admission to employment as fire protection personnel in a permanent, temporary, or probationary status and for advanced or specialized fire protection positions. (Emphasis added.)

See also id. §§ 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), defines "fire protection personnel," for purposes of chapter 416, to include, respectively, "fire and arson investigators," "aircraft crash and rescue fire protection personnel," 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 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 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

    a department of a local government with permanent, fully paid, full-time employees organized to prevent or suppress fires. (Emphasis added.)

We find no statutory authorization for the establishment 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 "departments 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 commission. Nor would they fall within the definition of "fire protection personnel" in section 416.001(4)(C) since they are not "fire department employees" within the meaning of that provision. They would thus not be subject to commission training standards for "fire protection personnel," promulgated under sections 416.007(8), 416.022, and 416.031(b). See Attorney General Opinion JM-1209 (1990), at 6 n.3 (no provision for establishment of volunteer fire departments as political subdivisions). But see Attorney General Opinion JM-821 (1987) (volunteer fire department may be "governmental 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 departments -- where the latter are not "departments of local government" -- to the training requirements for "fire protection personnel" 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," would not be subject under section 416.031 to the training or other requirements established by the commission for "appointees" of "fire departments," since, again, volunteer fire department personnel are not appointed by "fire departments" 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 personnel" within the definition of that term in section 416.001(4)(C).

If the fire department employing the persons you ask about is a "fire department" within the definition of the term in section 416.001(3) -- i.e., a department of local government, etc. -- those persons would, unless employed on a temporary or probationary basis, be subject to the provisions 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 assigned fire-fighting duties" in the course of their employment, 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). See Attorney General Opinion H-141 (1973) (employees of fire departments who "may" 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.g., Local Gov't Code § 352.001(c) (county commissioners courts may contract with "incorporated" volunteer fire departments for fire protection in county territory outside municipalities), the results we reach here, based on the applicable provisions 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.

                   SUMMARY

      Personnel of a volunteer fire department, where the latter is not a department of local government, are not subject to the requirements of training established by the Commission on Fire Protection Personnel Standards and Education under chapter 416 of the Government 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 HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General