Could Cleburne remove police-dispatcher jobs from its civil service system without taking protection away from current dispatchers?
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This page answers the general question as of 1985. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-325: Police Dispatcher Civil Service
Plain-English summary
The Johnson County Attorney asked whether Cleburne police-department dispatchers were covered by article 1269m civil service, whether the city council could remove the position from coverage, and whether a statutory provision would be unconstitutional if removal were impossible. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
When Cleburne adopted article 1269m civil service in 1955, the original statute broadly covered police-department employees. JM-325 said including dispatchers was correct under the law at that time. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
The Legislature narrowed the definition of policeman in 1957 and replaced automatic classification language. Later cases held that employees whose civil-service status had already been established retained full statutory protection. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
Those cases also allowed a home-rule city acting in good faith to abolish civil-service status for positions no longer entitled to coverage after the amendment. JM-325 therefore concluded that Cleburne could remove the dispatcher position from future coverage. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
The city could not affect current employees whose protected status had already been fixed. Because this distinction answered the first two questions, the opinion did not reach the constitutional question. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
Currency note
This opinion was issued in 1985. 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 remedy mentioned here.
Common questions
Were Cleburne dispatchers originally within civil service?
Yes. JM-325 said the city's 1955 inclusion of police dispatchers was correct under article 1269m as it then existed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
What changed in 1957?
The Legislature redefined policeman to focus on appointments made under specified civil-service sections or status held under section 24, and replaced the earlier automatic-classification provision. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
Could Cleburne remove dispatcher positions from future coverage?
Yes. The opinion said a home-rule city could do so in good faith for positions no longer entitled to article 1269m coverage after the 1957 amendments. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
Could the city take civil-service protection from existing dispatchers?
No. JM-325 said employees whose civil-service status had already been fixed retained full protection. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
Did the opinion rule on the statute's constitutionality?
No. Once it concluded that prospective removal was possible while current protections remained intact, the opinion said there was no need to address the third question. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
Background and statutory framework
The 1947 version of article 1269m defined policeman as any compensated police-department member. Its section 12 also treated completion of six months' probation as creating the position under a civil-service classification. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
The 1957 amendment tied the definition to substantial compliance with sections 9, 10, and 11 or entitlement under section 24. It also protected properly appointed or grandfathered employees when a city council had failed to establish a position by ordinance. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
JM-325 read the amendment and the cited cases together: existing employee rights survived, while the city retained good-faith authority to change the status of the position for later appointments. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
Citations and references
- V.T.C.S. article 1269m, sections 2, 9, 10, 11, 12, and 24
- Acts 1947, 50th Legislature, chapter 325
- Acts 1957, 55th Legislature, chapter 391
- City of San Antonio v. Handley, 308 S.W.2d 608 (Tex. Civ. App. - San Antonio 1957, writ ref'd)
- City of Wichita Falls v. Cox, 300 S.W.2d 317 (Tex. Civ. App. - Fort Worth 1957, writ ref'd n.r.e.)
- City of San Antonio v. Hahn, 274 S.W.2d 162 (Tex. Civ. App. - Austin 1954, writ ref'd n.r.e.)
- City of San Antonio v. Wiley, 252 S.W.2d 471 (Tex. Civ. App. - San Antonio 1952, writ ref'd n.r.e.)
- City of San Antonio v. Wallace, 338 S.W.2d 153 (Tex. 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)
- Cox v. Purcell, 306 S.W.2d 814 (Tex. Civ. App. - Fort Worth 1957, no writ)
- Welch v. Overton, 416 S.W.2d 879 (Tex. Civ. App. - Texarkana 1967, writ ref'd n.r.e.)
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0325
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0325.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
June 13, 1985
Honorable Dale Hanna
Johnson County Attorney
1st Floor Courthouse
Cleburne, Texas 76031
Opinion No. JM-325
Re: Whether a city police department dispatcher is covered by civil service protection under article 1269m, V.T.C.S.
Dear Mr. Hanna:
You have asked the following three questions regarding the city of Cleburne's police department:
Whether a police department dispatcher's position is entitled to civil service coverage under article 1269m, V.T.C.S.
If such position is already covered by article 1269m, can the city council remove the position from civil service coverage?
If it is not legally possible to remove the dispatcher position from civil service coverage is section 21, paragraph 5 of article 1269m unconstitutional as applied to a police department dispatcher's position?
The statute governing firemen's and policemen's civil service in cities of over 10,000 inhabitants was originally enacted as chapter 325 of the Acts of the Fiftieth Legislature. Acts 1947, 50th Leg., ch. 325, at 550. Section 2 thereof initially defined "policeman" as
any member of the Police Department who drew compensation for his services as a member of said Department.
Acts 1947, 50th Leg., ch. 325, §2, at 551. The second paragraph of section 12 of article 1269m, as originally enacted, provided that
[a]ll offices and positions in the Fire Department or Police Department shall be established by ordinance of the City Council or governing body, provided, however, if the officer or employee shall have been permitted to serve the six (6) months probationary period, the service of said officer or employee shall ipso facto constitute the creation of the said position or office under a civil service classification.
Acts 1947, 50th Leg., ch. 325, §12, at 554. On the basis of these provisions it was generally held that all employees of the police department in cities which adopted the civil service system created by the act were given civil service status under that system. See City of San Antonio v. Handley, 308 S.W.2d 608 (Tex. Civ. App. - San Antonio 1957, writ ref'd); City of Wichita Falls v. Cox, 300 S.W.2d 317 (Tex. Civ. App. - Fort Worth 1957, writ ref'd n.r.e.); City of San Antonio v. Hahn, 274 S.W.2d 162 (Tex. Civ. App. - Austin 1954, writ ref'd n.r.e.); City of San Antonio v. Wiley, 252 S.W.2d 471 (Tex. Civ. App. - San Antonio 1952, writ ref'd n.r.e.). See also City of San Antonio v. Wallace, 338 S.W.2d 153 (Tex. 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 was amended to redefine "policeman" as
[a]ny member of the Police Department appointed to such position in substantial compliance with the provisions of Sections 9, 10, and 11 of this Act, or entitled to Civil Service Status under Section 24 of this Act.
Acts 1957, 55th Leg., ch. 391, §1, at 1171. That enactment also replaced the above-cited language of the second paragraph of section 12 providing for automatic classification of employees with the following language:
All offices and positions in the Fire Department or Police Department shall 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 shall not result in the loss of Civil Service benefits under this Act by any person appointed to such position in substantial compliance with the provisions of Sections 9, 10 and 11 of this Act, or entitled to Civil Service Status under Section 24 of this Act.
Acts 1957, 55th Leg., ch. 391, §3, at 1172. It has been clearly held that employees whose civil service status was established prior to the 1957 amendment retained the full protection of that statute. City of San Antonio v. Handley, 308 S.W.2d at 611; Cox v. Purcell, 306 S.W.2d 814 (Tex. Civ. App. - Fort Worth 1957, no writ), per curiam. On the other hand, it has also been well established that a home rule city acting in good faith may abolish the civil service status of positions no longer entitled to coverage under article 1269m, as amended in 1957. City of San Antonio v. Wallace, 338 S.W.2d at 156; City of San Antonio v. Kneupper, 338 S.W.2d 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 is a home rule city entitled to adopt the civil service system of article 1269m. When it did so in 1955 it included, as the court decisions indicate was 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, Cleburne may remove 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 status has been previously fixed. See City of San Antonio v. Handley, 308 S.W.2d at 611. On the basis of this conclusion we have no need to deal with your third question.
SUMMARY
While current employees in the position of police department dispatcher may not have their civil service protection eliminated, the city of Cleburne may remove the position of police department dispatcher from the coverage of its civil service system for the future.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Colin J. Carl
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood
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