November 30, 1990
Mr. Ray L. Goad Opinion No. .JM-1251
Executive Director
Commission on Fire Re: Whether volunteer fire de-
Protection Personnel partment personnel are subject
Standards and Education to requirements established
9800 N. Lamar Blvd. under Government Code chapter
Austin, Texas 78753 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 Edu-
cation]?
Chapter 416 of the Government Code provides generally
for the authority of the Commission on Fire Protection Per-
sonnel Standards and Education [the %ommission*@]. 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 com-
mission to
establish minimum educational, training, PM-
sical, mental, and moral standards for admfs-
sion to employment as fire orotection oerson-
m in a permanent, temporary, or probationary
status and for advanced or specialized fire
.
P. 6666
Mr. Ray L. Goad - Page 2 (JM-1251)
pv positions. (Emphasis
.
See also ie, 55 416.022 (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), de-
fines "fire protection personnel,M for purposes of chapter
416, to include, respectively, nfire and arson investi-
gators," "aircraft crash and rescue fire protection person-
nel," 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 deDe
rent emolovees who are not secretaries,
stenographers, clerks, budget analysts, or
similar support staff persons or other admin-
istrative 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;
(i-4 marine fire fighting;
w 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
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Mr. Ray L. Goad - Page 3 (JM-1251)
a deDartment of a lo al aovernment with perma-
nent, fully paid, f&-time employees organiz-
ed to prevent or suppress fires. (Emphasis
added.)
We find no statutory authorization for the establish-
ment 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 lldepartments 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 commis-
sion. Nor would. they fall within the definition of "fire
protection personnel" in section 416.001(4)(C) since they
are not "fire department employees11within the meaning of
that provision. They would thus not be subject to commis-
sion training standards for "fire protection personnel,
promulgated under sections 416.007(8), 416.022, and
416.031(b). m Attorney General Opinion JW-1209
(1990), at 6 n.3 (no provision for establishment of
volunteer fire departments as political subdivisions). But
see Attorney General Opinion JW-821 (1987) (volunteer fire
department may be llgovernmental 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 depart-
ments -- where the latter are not "departments of local
government" -- to the training requirements for "fire
protection personnel11 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,w would not
be subject under section 416.031 to the training or other
p. 6668
Mr. Ray L. Goad - Page 4 (JM-1251)
requirements established by the commission for "appointees"
of "fire departments," since, again, volunteer fire depart-
ment personnel are not appointed by "fire departmentsB1 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 personnelB1within the definition of that term in
section 416.001(4)(C).
If the fire department employing the persons you ask
about is a "fire departmentB1within the definition of the
term in section 416.001(3) -- h, a department of local
government, etc. -- those persons would, unless employed on
a temporary or probationary basis, be subject to the provi-
sions 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 as-
signed fire-fighting dutiesI1in the course of their employ-
ment, 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). &R Attorney General
Opinion H-141 (1973) (employees of fire departments who
lSmayll
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.a,, Local
Gov't Code 5 352.001(c) (county commissioners courts may
contract with "incorporatedB1volunteer fire departments for
fire protection in county territory outside municipalities),
the results we reach here, based on the applicable provi-
sions 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.
Personnel of a volunteer fire department,
where the latter is not a department of local
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,
,
Mr. Ray L. Goad - Page 5 (JM-2151)
(.
government, are not subject to the r;rdf;;-
ments of training established by the
sion on Fire Protection Personnel Standards
and Education under chapter 416 of the Gov-
ernment 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 HICXS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 6670