Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 1,2004
The Honorable Rene Guerra Opinion No. GA-0243
Hidalgo County Criminal District Attorney
100 North Closner, Room 303 Re: Whether Hidalgo County deputy district
Edinburg, Texas 78539 clerks are subject to the provisions of the Hidalgo
County civil service plan, and if not, whether the
Hidalgo County commissioners court may amend
the civil service plan to include deputy district
clerks (RQ-0196-GA)
Dear Mr. Guerra:
You ask (1) whether Hidalgo County deputy district clerks are employees subject to the
provisions of the Hidalgo County civil service plan, and if not, (2) whether the county
commissioners court can amend the plan to specifically include deputy district clerks as plan
participants.’ You inform us that the Hidalgo County district clerk terminated the employment of
several deputy district clerks. The former deputy district clerks sought an administrative hearing
before the Hidalgo County Civil Service Commissjon (the “Commission”) to challenge the district
clerk’s actions. The Commission questions whether the deputy district clerks are included in the
county’s civil service plan. The county commissioners court has inquired whether it may amend the
county’s civil service plan to include deputy district clerks. See Request Letter, supra note 1, at 1.
Chapter 158, subchapter A of the Local Government Code authorizes counties with a
population of 200,000 or more to create a county civil service system to include county employees
with certain exceptions not pertinent here. See TEX. LOC. GOV’T CODE ANN. 8 158.002 (Vernon
1999). A county civil service system may be created by order of the commissioners court or by an
election called for that purpose. See id. 55 1X003-,004. When a county civil service system has
been created under subchapter A, the county commissioners court “shall appoint three persons to
serve as the members ofthe civil service commission that administers the system.” Id. 5 158.008(a)
(Vernon Supp. 2004).
‘See Letter from Honorable Rent Ciuem, Hidalgo County C rim&d District Attorney, to Honorable Greg
Abbott, TexasAttomeyGeneral(Mar. 11,2004) (onfdewithOpinionCommittee, aim avoilableatwww.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Rene Guerra - Page 2 (GA-0243)
By defining an “employee,” subchapter A delineates who is subject to a county civil service
plan. An “employee” under the subchapter is
a person who obtains a position by appointment and who is not
authorized by statute to perform governmental functions involving an
exercise of discretion in the person’s own right, unless the person is
included by a local civil service rule adopted under the procedures
outlined in Section 158.009[.]
Zd. 9 158.001(2) (Vernon 1999). The first part of the definition includes employees who hold
appointive positions, but excludes “one who (a) performs governmental functions, (b) in his own
right, (c) involving some exercise of discretion.” Green v. Stewart, 516 S.W.2d 133, 135 (Tex.
1974). The exclusion of persons exercising discretionary governmental functions in their own right
does not apply, however, if the civil service commission promulgates a rule to include such persons.
See TEX. Lot. GOV’T CODE ANN. $5 158.001(2), .009(a) (Vernon 1999).
Chapter 158, subchapter A, defines a “department” as “a county, district, or precinct office
or officer, agency, or board that has jurisdiction and control of the performance of employees’
official duties.” Id. 5 158.001(3). The subchapter generally permits the head of a “department” to
assume responsibility for selecting all department employees. See id. 3 158.010(a). However, a
county’s civil service commission is authorized, with certain exceptions not pertinent here, to adopt
rules regarding:
(1) the definition of a county employee;
(2) selection and classification of county employees;
(3) competitive examinations;
(4) promotions, seniority, and tenure;
(5) layoffs and dismissals;
(6) disciplinary actions;
(7) grievance procedures; and
(8) other matters relating to the selection of county employees and the
procedural and substantive rights, advancement, benefits, and
working conditions of county employees.
Id. 5 158.009(a).
The Honorable Rent Guerra - Page 3 (GA-0243)
Chapter 51, subchapter D of the Government Code generally prescribes district clerks’
authority with respect to their deputies. See TEX. GOV’T CODEANN. $5 5 1.301-,322 (Vernon 1998
& Supp. 2004). Generally, a district clerk appoints deputy district clerks. See id. 5 51.309(a)
(Vernon 1998)’ The employment of deputy clerks and assistants in Hidalgo, Jefferson, and Nueces
Counties is specifically governed by section 5 1.3 16 of the Government Code:
(a) In Hidalgo, Jefferson, and Nueces counties, the district clerk may
apply in writing to the district judges in the county to appoint a
deputy district clerk or an assistant. The application must state the
number of deputies or assistants to be appointed and the probable
receipts and disbursements of the office. If a majority of the judges
approve the appointment, they shall certify the list to the
commissioners court. The application and the order approving the
application must be recorded in the minutes of the district court.
(b) A deputy clerk or assistant appointed under this section shall
perform the duties required by the district clerk and serves at the
pleasure of the district clerk. A deputy clerk or assistant may not be
employed except as provided by this section.
(c) An assistant appointed under this section must take the oath
prescribed for officers of this state.
(d) The salary of an assistant appointed under this section shall be
paid out of the general fund or the officers’ salary fund of the county.
The salary of a court clerk, index clerk, or clerk handling the jury
shall be paid out of the general fund or the jury fund.
Id. § 5 1.316(a)-(d) (emphasis added).
You state that the Hidalgo County civil service commission rules define an “employee” as
“anyperson employed by the County and/or the [Hidalgo Drainage] District.” Request Letter, supra
note 1, at 3.’ You further state that the rules provide that employment of persons subject to the plan
“cannot be terminated without notice and a hearing at which the employer must demonstrate cause
for termination.” Id. at 2. You suggest that there is tension between chapter 158 of the Local
Government Code, which authorizes a county civil service plan, and section 51.316(b) of the
‘In other contexts, two courts have stated that the district clerk controls the hiring and firing of deputy clerks.
See County v. Louvier, 9.56 S.W.2d 106, 110 n.8 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (concerning
governmental and official immunity); Sfnte v. Hardy, 769 S.W.2d 353, 355 (Houston [l” Dist.] 1989, no wit)
(concerning grievance procedures in article 237231.12, the predecessor to chapter 160 ofthe Local Government Code).
‘See also HIDALGO COUNTY, TEXAS, CML SERVICE COMM’N RULES, at 7, available ~lt
http:Nwww.co.hidalgo.tx.us/docs/rules.pdf.
The Honorable Rem? Guerra - Page 4 (GA-0243)
Government Code, which provides that deputies in Hidalgo County serve at the pleasure of the
district clerk. See id. at 3.
A threshold issue is whether deputy district clerks may be considered county employees.
Under chapter 158 of the Local Government Code, whether a person is subject to the county civil
service system depends primarily on whether the person is an employee as defined in that chapter.
See Tex. Att’y Gen. LO-92-048, at 4. Section 158.002 states that counties with more than 200,000
in population may create a county civil service system “to include all the employees of the county,”
with certain exceptions. TEX. Lot. GOV’T CODE ANN. 5 158.002 (Vernon 1999). Therefore, the
definition of “employee” in section 158.001 implicitly requires that the person be an employee of
the county. A 1972 opinion from this office determined that all deputies of county officials,
including deputy district clerks, are employees subject to a civil service system. See Tex. Att’y Gen.
Op. No. M-1088 (1972) at 3.4 However, that opinion focused solely on the fact that deputies
exercise authority in the right of their principal and did not address whether deputy district clerk’s
are employees of the county. See id. at 2.
In section 158.001(3) of the Local Government Code, “department” is defined to include a
district office or officer. See TEX. LOC. GOV’T CODE ANN. 5 158.001(3) (Vernon 1999). The plain
language of the statute is sufficiently broad to include employees of the district clerk’s office.
Moreover, the commissioners court has authority over “such matters as hours of work, vacations,
holidays, sick leave, compensation,” and similar employee matters concerning the district clerk’s
office. Stutev. Hardy, 769 S.W.2d 353,355 (Houston [lstDist.] 1989, no writ). Comparewith Tex.
Att’y Gen. Op. No. JC-0254 (2000) at 5 (determining that community supervision and corrections
department employees, selected and paid by judicial district, are not county employees).
Consequently, we conclude that employees of the district clerk’s office may be considered county
employees for purposes of chapter 158.
Your specific question is whether county civil service protection may be reconciled with
section 51.316(b) of the Government Code, which provides that deputy district clerks serve at the
district clerk’s pleasure. Similar statutes providing that a~particular employee “serves at the
pleasure” of the appointing authority have been interpreted to mean that the employee “may be
removed without cause, and without notice and hearing.” Clark v. Young, 787 S.W.2d 166, 168
(Tex. App.-Fort Worth 1990, writ denied); see also Abbott Y. Pollock, 946 S.W.2d 513, 516-17
(Tex. App.-Austin 1997, writ denied) (provision that “deputy sheriffs ‘serve at the pleasure of the
sheriff” created an at-will relationship (citation omitted)). A statute providing for at-will
employment of an employee irreconcilably conflicts with civil service protections. See Clark, 787
S.W.2d at 168.
‘Attorney General Opinion M-10X8has been overruled in part by subsequent opinions from this &ice. See
Tex.Att’y Gen. Op. Nos. H-619 (1975) at 2-4 (determining that assistant county purchasing agents are subject to civil
service statutes, but not adult probation officers and assistant county auditors); H-985 (1977) at 3 (determining that
deputy sheriffs were not subject to the then-existingcivil service statutes).
The Honorable RenC Guerra - Page 5 (GA-0243)
In Clark, the court of appeals resolved the conflict between a statute authorizing at-will
employment of a court coordinator and the statutes creating county civil service systems by applying
sections 3 11.025 and 3 11.026 the Code Construction Act. See id. at 168-69. Under section 3 11.025
ofthe Code Construction Act, when statutes enacted at the same or different sessions irreconcilably
conflict, the later-enacted statute prevails. See TEX. GOV’T CODE ANN. 5 311.025 (Vernon 1998).
However, when a special or local provision irreconcilably conflicts with a general provision, section
3 11.026 directs that the special provision prevails as an exception to the general provision, “unless
the general provision is the later enactment and the manifest intent is that the general provision
prevail.” Id. 5 3 11.026(b). The court of appeals in Clurkdetennined that the statute creating at-will
employment should prevail over the general civil service statutes under both sections 3 11.025 and
3 11.026 of the Code Construction Act because (1) the at-will statute was the later enacted act, and
(2) regardless ofwhich statute was general and which specific, neither manifested anintent that court
coordinators were to be subject to a county civil service system. See Clark, 787 S.W.2d at 168-69.
Here, section 5 1.316(b) ofthe Government Code, applicable only to the deputy district clerks
and assistants in three counties, is special or local in nature. The legislature expressly designated
a predecessor statute that applied only to certain counties within a specified population bracket as
a special law. See Act of May 29, 1939,46th Leg., R.S., ch. 8, § 1, 1939 Tex. Spec. Laws 742,742-
43. Therefore, under section 3 11.026(b) of the Code Construction Act, section 5 1.3 16 will prevail
as an exception to irreconcilably conflicting general laws unless the general law is (1) more recently
enacted and (2) manifestly intended to prevail. See TEX. GOV’T CODEANN. 5 3 11.026(b) (Vernon
1998). Seealso HorizonKMSHealthcare Corp. v. Auld, 34 S.W.3d 887,901 (Tex. 2000) (applying
“traditional statutory construction principle that the more specific statute controls over the more
general”).
Determining which is the more recently enacted legislation, section 51.316(b) of the
Government Code or the civil service statutes in chapter 158 of the Local Government Code, is
somewhat problematic. The general provisions for a county civil service system, including the
definition of “employee,” were enacted in 1971. See Act of May 14, 1971,62d Leg., RX, ch. 262,
$$ 1-14, 1971 Tex. Gen. Laws 1151, 1151-54. The most recent legislative enactment concerning
section 51.316 of the Government Code is its codification into the Government Code in 1985. See
ActofMay17,1985,69thLeg.,R.S.,ch.480,~1,sec.51.316,1985Tex.Gen.Laws1720,1982-83.
However, section 27 of the 1985 act expressly states that the codification was intended as
nonsubstantive. The court in Clarkdisregarded nonsubstantive codifications when determining the
latest expression of legislative intent. See Clark, 787 S.W.2d at 168-69. However, Clark predated
the Texas Supreme Court’s opinion in Fleming Foods of Texas, Inc. v. Rylandq, which determined
that general legislative statements that no substantive change is intended by a recodification will not
justify disregarding clear, specific and unambiguous language in the recodification. See Fleming
Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278,284-85 (Tex. 1999).
The legislature did more than codify existing law when it enacted section 5 1.3 16. The statute
it replaced provided:
The Honorable Rene Guerra - Page 6 (GA-0243)
(h-2) In any county of this State with a population of two hundred
fifty thousand (250,000) inhabitants and over and less than three
hundred twenty-five thousand (325,000) inhabitants, according to the
last preceding Federal Census, the District Clerk may make written
application to the District Judges of said county for the appointment
of assistants and/or deputies and the salaries to be paid same, setting
forth the number of assistants and/ or deputies sought to be appointed
and the salary to be paid each, such salaries to be not more than
allowed by law in Senate Bill 5, Acts of the Forty-fourth Legislature,
Second Called Session, and amendments thereto. Said application
shall be accompanied by a statement showing the probable receipts
and disbursements of said office, and shall be presented to the District
Judges, who shall then carefully consider same; and, if, after such
consideration, a majority of the District Judges shall approve the
appointments sought to be made, and shall also approve the salary to
be paid each, they shall certify said list to the Commissioners’ Court
of said county; and said application and the order of the District
Judges thereon shall be recorded in the minutes of the District Court.
The Commissioners’ Court shall thereupon order the amount
approved to be paid from the General Fund, officers’ salary fund, or
any other fund of the county, as herein provided, upon the
performance of the services required, and said Commissioners’ Court
shall appropriate adequate funds for that purpose. All assistants to
the District Clerk shall be paid from the General Fund of the county
or the Officers’s Salary Fund, as per the order ofthe Commissioners’
Court, except as herein provided; and be it further provided that the
Commissioners’ Court may authorize that the court clerks, the index
clerk, and the clerk handling the jury in each such county can be paid
either from the General Fund or the Jury Fund of said county.
The deputies appointed by the District Clerk shall be
authorized to discharge such duties as may be assigned to them by the
District Clerk and provided for by law, and all of said assistants shall
take the oath of office for faithful performance of duty. The District
Clerk shall have the right to discontinue the services of any assistants
employed in accordance with the provisions of this Article, but no
assistant shall be employed except in the manner herein provided. In
like manner, the Judges of the District Court may authorize the
appointment of additional assistants when, in the judgment of the
District Clerk, a necessity exists therefor.
The Honorable Rene Guerra - Page 7 (GA-0243)
Act ofMay 29, 1939,46th Leg., R.S., ch. 8, § 1, 1939 Tex. Spec. Laws 742,742-43 (former article
3912e-(h-2), Revised Civil Statutes), repealed by Act ofMay 17, 1985,69th Leg., R.S., ch. 480, 5
26, 1985 Tex. Gen. Laws 1720,2049. Section 51.316 now provides:
(a) In Hidalgo, Jefferson, and Nueces counties, the district clerk may
apply in writing to the district judges in the county to appoint a
deputy district clerk or an assistant. The application must state the
number of deputies or assistants to be appointed and the probable
receipts and disbursements of the office. If a majority of the judges
approve the appointment, they shall certify the list to the
commissioners court. The application and the order approving the
application must be recorded in the minutes of the district court.
(b) A deputy clerk or assistant appointed under this section shall
perform the duties required by the district clerk and serves at the
pleasure of the district clerk. A deputy clerk or assistant may not be
employed except as provided by this section.
(c) An assistant appointed under this section must take the oath
prescribed for officers of this state.
(d) The salary of an assistant appointed under this section shall be
paid out of the general fund or the officers’ salary fund of the county.
The salary of a court clerk, index clerk, or clerk handling the jury
shall be paid out of the general fund or the jury fund.
TEX. GOV’T CODEANN. 5 5 1.136 (Vernon 1998). By changing the statute horn a population bracket
special law to a law applicable to three specific counties, and revising the terms of employment and
payment of salary, the legislature expressed a specific intent that deputy district clerks of those
counties serve at the pleasure of the district clerk.
Additionally, even if the civil service statutes are considered the more recently enacted
legislation, the mere fact that a general law applies broadly does not by itself manifest an intent to
repeal or obviate inconsistent special or local provisions. If that were the case, then later-enacted
general laws would always prevail over conflicting special or local laws, and section 3 11.026(b)
would be superfluous. An example of a general statute that was manifestly intended to prevail over
a special or local law is discussed in Harris County Water Control &Improvement District v. Duke,
59 S.W.3d 333 (Tex. App.-Houston [lst Dist.] 2001, no pet.). In that case, a court of appeals
determined that the general provisions of the Tax Code concerning the collection of attorney fees
were manifestly intended to prevail over earlier-enacted special provisions of the Water Code. See
Harris County Water Control, 59 S.W.3d at 337-38. The court so held because the statute enacting
the pertinent provision in the Tax Code contained an express proviso repealing inconsistent general,
local, and special laws to the extent of conflict. See id. at 338 (citing Act of May [26], 1979, 66th
Leg., R.S., ch. 841, sec. 6, 1979 Tex. Gen. Laws 2217, 2330). The 1971 legislation enacting the
The Honorable RenC Guerra - Page 8 (GA-0243)
predecessor to chapter 158 of the Local Government Code does not contain a similar manifestation
of intent that it is to prevail over special or local statutes providing for at-will employment. See Act
ofMay 14,1971,62dLeg.,R,S.,ch. 262,197l Tex. Gen. Laws 1151,1151-54.
In contrast, this office has previously determined that a 1989 amendment to the civil service
statutes did not prevail over an earlier enacted statute, which provided that the personnel of the
county attorney’s office serve at the will of the county attorney. See Tex. Att’y Gen. LO-96-100, at
4. In 1989, section 158.001(2) was amended to allow county civil service commissions to expand
the definition of employee. See Act of May22, 1989,7lst Leg., R.S., ch. 881, $5 1,3, 1989 Tex.
Gen. Laws 3879,3879-80. This office determined that the 1989 amendment was a general statute
and did not prevail over the earlier specific statute because there was no manifestation of intent that
it do so. See Tex. Att’y Gen. LO-96-100, at 4.
Here, the general provisions of chapter 158 of the Local Government Code do not reveal an
intent to prevail over a special or local law such as the specific provision of at-will employment of
Hidalgo deputy district clerks in section 5 1.3 16 of the Government Code. The answer to your first
question is that Hidalgo County deputy district clerks are not employees included in the Hidalgo
County civil service plan.
In answer to your second question, the Hidalgo County commissioners court cannot include
deputy district clerks in the county civil service plan by amending the plan’s definition of an
employee. A commissioners court’s authority is limited to those powers expressly conferred by the
Texas Constitution or statutes or necessarily implied therefrom. See Canales v. Laughlin, 214
S.W.2d 451, 453 (Tex. 1948). A county commissioners court has no authority to change
employment that is statutorily terminable at will to terminable for cause only. See Garcia v. Reeves
County, 32 F.3d 200, 203 (5th Cir. 1994); Abbott, 946 S.W.2d at 517. Moreover, the Local
Government Code gives the county civil service commission, not the commissioners court, authority
to adopt and amend plan rules. See TEX. Lot. GOV’T CODE ANN. 5 158.009(a)(l) (Vernon 1999).
And section 158.009(a)(l) authorizes the civil service commission to expand the definition of
employee only to include employees who would otherwise be excluded because they exercise
governmental functions in their own right. Consequently, neither the commissioners court nor the
civil service commission may amend the plan to include deputy district clerks.
The Honorable Rene Guerra - Page 9 (GA-0243)
SUMMARY
Hidalgo County deputy district clerks are not subject to the
provisions of the Hidalgo County civil service plan. The Hidalgo
County commissioners court cannot amend the civil service plan to
include deputy district clerks.
Very truly yours,
&A*
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee