Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
December 1, 2010
The Honorable Joe Shannon, Jr. Opinion No. GA-0824
Tarrant County Criminal District Attorney
Tim Curry Criminal Justice Center Re: Whether a court investigator appointed by a
401 West Belknap statutory county probate judge is covered by the
Fort Worth, Texas 76196-0201 Tarrant County civil service system
(RQ-0889-GA)
Dear Mr. Shannon:
You ask whether a court investigator appointed by a statutory county probate judge is covered
by the Tarrant County civil service system.!
Chapter 158 of the Local Government Code provides for the creation of a county civil service
system. "A county with a population of 190,000 or more may, in accordance with this subchapter,
create a county civil service system to include all the employees of the county who are not exempted
from the system by the express terms or judicial interpretations of this subchapter or by the operation
of Subchapter B.,,2 TEX. Loc. GOV'T CODE ANN. § 158.002 (West 2008). You indicate that, in
1988, Tarrant County voters approved the expansion of its civil service system (the "System")
pursuant to section 158.007 of the Local Government Code, which is applicable to counties with a
population of more than 1.3 million.' [d. § 158.007; Request Letter at 1.
Subchapter A of chapter 158 does not apply to:
(1) assistant district attorneys, investigators, or other
employees of a district or criminal district attorney, except as
provided by Section 158.007;
(2) the official shorthand reporter of a court; or
lRequest Letter (available at http://www.texasattorneygeneral.gov).
2Subchapter B of chapter 158 is applicable to sheriffs departments in counties with a population of more than
500,000. TEX. Loc. GOV'T CODE ANN. § 158.032 (West 2008).
3The population of Tarrant County in 2000 was 1,446,230. U. S. BUREAU OF THE CENSUS, STATEAND COUNTY
QUICK FACTS, available at http://quickfacts.census.gov/qfd/states/48/48439.html (last visited Nov. 23. 2010).
The Honorable Joe Shannon, Jr. - Page 2 (GA-0824)
(3) an elected or appointed officer under the constitution.
TEX. Loc. GOV'TCODEANN. § 158.013(b) (West 2008). AruleadoptedbytheTarrantCountyCivil
Service Commission (the "Commission") declares:
The Civil Service Rules apply to the employees of all
departments4 that are not specifically exempted under Chapter 158 of
the Local Government Code.
TARRANT COUNTY CIVIL SERVICE RULES, RULE 1.13 (Jan. 1998) (footnote added). Because the
position of "probate court investigator" is not listed among the exemptions in section 158.013, one
might conclude that a court investigator appointed by a county probate judge is necessarily included
within the System. 5
You contend, however, that a judicial decision and an attorney general opinion may suggest
a different result. Request Letter at 2. First, you note that a Fort Worth Court of Appeals decision
considered whether a court coordinator for a district judge was included within the Tarrant County
civil service system. Clark v. Young, 787 S.W.2d 166 (Tex. App.-Fort Worth 1990, writ denied).
The court, in holding that a court coordinator for a district judge was not part of the county civil
service system, relied on a provision of subchapter E, chapter 74 of the Government Code that
established the position of court coordinator:
(a) The local administrative judge and each district or
statutory county court judge may establish a court coordinator system
and appoint a court coordinator for his court to improve justice and
expedite the processing of cases through the courts.
(b) Each court coordinator serves at the pleasure of the
judge who appointed him.
TEX. GOV'T CODE ANN. § 74.101 (West 2005). In Clark, the court found persuasive the argument
that a court coordinator "serve[s] at the pleasure of the judge" who appointed him. Clark, 787
S.W.2d at 169. The court reasoned, in part, that the fact "that the coordinators serve at the pleasure
of the appointing judge ... means that they may be removed without cause, and without notice and
hearing. It follows that such a provision is inconsistent with the concept of civil service protection."
Id. (citation omitted). By contrast, chapter 25 of the Government Code deals with the position of
court investigator of a statutory county probate court. The relevant statute provides:
4We assume for purposes of this opinion that a probate court investigator is an employee of a county
"department."
SIndeed, the definition of "employee" for purposes of the civil service statutes is, inter alia, "a person who
obtains a position by appointment." 'TEx. Loc. GOV'T CODE ANN. § 158.001 (West 2008) (emphasis added).
The Honorable Joe Shannon, Jr. - Page 3 (GA-0824)
(a) The judge of a statutory probate court shall appoint a
court investigator. One person shall serve as the court investigator
for all statutory probate courts in the county unless the commissioners
court has authorized additional investigators. The commissioners
court may authorize additional court investigators if necessary.
(b) The commissioners court shall set the salary of a court
investigator.
TEX. GOy'T CODE ANN. § 25.0025 (West 2004). Unlike the situation with regard to court
coordinators for district judges, the position of court investigator for a statutory probate court does
not contain the declaration that the investigator "serves at the pleasure of the judge."
You also suggest that a prior opinion of this office offers support for the view that an
investigator for a probate court judge is not covered by the System. In that opinion, we considered
whether deputy district clerks in Hidalgo County were subject to the provisions of the Hidalgo
County civil service plan. See Tex. Att'y Gen. Op. No. GA-0243 (2004). The opinion observed that
the employment of deputy clerks and assistants in Hidalgo County is specifically governed by section
51.316 of the Government Code. ld. at 3. That provision, similar to the statute at issue in Clark v.
Young, provided that "[a] deputy clerk or assistant ... serves at the pleasure of the district clerk."
!d. See TEX. GOy'T CODE ANN. § 51.316(b) (West 2005).
In the situation you pose, the statute authorizing the appointment of court
investigators-section 25.0025 of the Government Code-differs from the statutes considered in
both Clark and Attorney General Opinion GA-0243, in that section 25.0025 does not explicitly
provide that a court investigator "serves at the pleasure" of the probate court judge. Clearly, the
Legislature is aware of one means of exempting particular county employees from a civil service
system-by providing that such appointees "serve at the pleasure" of the appointing official. In the
case of court investigators appointed by a statutory probate court, the Legislature has opted not to
make such provision.
Thus, it appears that Rule 1.13 of the Tarrant County Civil Service Commission, which
makes the relevant civil service rules applicable to "employees of all departments that are not
specifically exempted under chapter 158," requires the conclusion that a court investigator appointed
by a county probate judge is covered by the Tarrant County civil service system.
The Honorable Joe Shannon, Jr. - Page 4 (GA-0824)
SUMMARY
A court investigator appointed by a county probate judge is
covered by the Tarrant County civil service system.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee