QTMice of tip !ZMornep Qhneral
State of Oxas
DAN MORALES
ATTORNEY
GENERAL March 27. 1995
Honorable Tii Curry Gpiion No. DM-338
Criminal District Attorney
Justice Center Re: Whether an expanded county civil
401 West Belknap service system established under Local
Fort Worth, Texas 76196-0201 Government Code section 158.007 covers
sheriff+s and constable’s deputies when the
sherifh department has not established a
separate civil service system under chapter
158, subchapter B, and whether a county
civil service system has authority to adopt
subpoena power (RQ-342)
Dear Mr. curry:
You have asked us whether a county civil service system resulting from an
expansion election under chapter 158, subchapter A of the Local Government Code, in a
county whose sheriff’s department has not established a separate civil service system
under chapter 158, subchapter B, includes within its coverage deputy sheriffs and deputy
constables. You asked this question in regard to Tarrant County, which in November,
1988, held such an election and approved an expanded civil service system pursuant to
section 158.007 of the Local Government Code. A subsequent letter from your office
informed us that since the time of your request for an opinion, the sheriffs department of
Tarrant County had established a separate civil service system under subchapter B; but
you have not asked how this change might affect the coverage of the expanded county
civil service system. Therefore, we will answer your request under the original set of
facts; that is, we will consider whether an expanded county civil service system established
under section 158.007 covers sheritl’s and constable’s deputies when the sheriffs
department has not established a separate civil service system under subchapter B.
Section 158.002 of the Local Government Code authorizes the creation of a
county civil service system and sets forth the extent of its basic coverage in the following
terms:
A county with a population of 200,000 or more may, in
accordance with this subchapter; create a wunty civil service system
to include all the employees of the wunty who are not exempted
Honorable Tim Curry - Page 2 (DM-338)
from the system by the express terms or judicial interpretations of
this subchapter or by the operation of Subchapter B.
Section 158.007 allows an election to create an expanded wunty civil service system and
sets forth the extent of its expanded coverage. That section provides, in pertinent part:
(a) In a wunty that has a population of more than 800,000 and
a civil service system created under this subchapter, the qualified
voters of the county, voting at an election called for that purpose,
may determine whether the system will b%dissolved or expanded to
cover the employees, except licensed attorneys, of the office of
district or criminal district attorney, the adult and juvenile probation
officers and their assistants, personnel in the county auditor’s office
including all assistant county auditors, mtdall orher employees ofrhe
cow@ not included in the coverage of the vstem and not
Jpecifically exempted by Section 158.013 or Subchapter B.
pmphasis added.]
Section 158.007(a) thus indicates that a successtbl expansion election extends civil
service coverage to several categories of persons:
1. “the employees, except licensed attorneys, of the office of
district or criminal district attorney”;
2. “the adult and juvenile probation officers and their
assistants”;
3. “personnel in the county auditor’s office, including all
assistant county auditors”;
4. “all other employees of the county not included in the
coverage of the system and not specifically exempted by Section
158.013 or Subchapter B.”
SheritFs and constable’s deputies do not fall within any of the fust three categories, but
they may be “other employees of the county.” Local Gov’t Code 5 158.007(a). Deputy
sheriffs and deputy constables therefore are covered by the expanded civil service system
if they are “employees” of the county and are not included in either of the two following
groups of persons: (1) those who are specifically excluded from coverage by subchapter
B, which allows the creation of a sheriffs department civil service system, see id.
5 158.032, and (2) those who are specifically excluded from coverage by section 158.013.
See id. 5 158.007(a). For the reasons set forth below, we conclude that sheriffs and
constable’s deputies in a wunty that has created an expanded subchapter A civil service
system but whose sheriffs department has not created a separate civil service system
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under subchapter B are covered by the expanded civil service system because they are
“employees” for purposes of sections 158.001 and 158.007 and are not excepted by
subchapter B or section 158.013.
Section 158.001 of the Local Government Code provides, in pertinent part, as
follows:
In this subchapter:
...*
(2) “Emp1oyee” means a person who obtains a position by
appointment and who is not authorized by statute to perform
governmental finctions 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; or a person included in the coverage of a cow@ civil
service vstem as the result of an election held under Section
158.007. The term does not include a person who holds an office the
term of which is limited by the constitution of this state.
Local Gov’t Code 5 158.001(2) (emphasis added). We will assume that the hypothetical
wunty civil service wmmission about which you inquire has not adopted a rule including
deputy sheriffs and deputy constables within section 158.001’s definition ofemployee.
One part of the defmition of employee in section 158.001(2) includes “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.”
This language survives virtually unchanged from the original enactment, in 1971, of the
statutory predecessor to subchapter A, V.T.C.S. article 2372h-6. See Act of
May 14, 1971, 62d Leg., RS., ch. 262, 5 l(3), 1971 Tex. Gen. Laws 1151, 1154
(“‘Employee’ means any person who obtains his position by appointment and who is not
author&d by statute to perform governmental functions in his own right involving some
exercise of discretion”) (repeated by Act of April 30, 1987, 70th Leg., RS., ch. 149,
8 49(l), 1987 Tex. Gen. Laws 707, 1308). This office held in Attorney General Opinion
H-985 that deputy sheriffs were not “employees” under this language in former article
2372316, section l(3), because deputy sheriffs are authorized by statute to perform
govemmentsl timctions in their own right. See Attorney General Opinion H-985 (1’977) at
2-3; cj Amhgton v. Counry of Dalkrs, 792 S.W.2d 468, 470 (Tex. App.-Dallas 1990,
writ denied) (deputy constable is not “employee” under section 158.001 in county that has
adopted basic civil setvice system because deputy performs governmental hctions in own
right and by use of discretion).
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At the time of Attorney General Opinion H-985, however, former article 2372h-6
did not contain anything like the alternative definition of employee currently found in
section 158.001: “or a person included in the coverage of a county civil service system as
the result of an election held under Section 158.007.” In 1985 the legislature added
substantially this language. See Act of May 26, 1985, 69th Leg., R.S., ch. 713, 4 l(3),
1985 Tex. Gm. Laws 2510, 2510 (“or mry person added to coverage of the county civil
service vstem by an election held under Section SA of this Acf’) (italics in original)
(repealed by Act of April 30, 1987, 70th Leg., RS., ch. 149, 3 49(l), 1987 Tex. Gen.
Laws 707, 1306). The same legislature also added a related new provision-then article
2372h-6, section SA, and now Local Government Code section 158.007-permitting an
election to expand civil service coverage to include generally, among others, “all other
employees of the county” who are not included in the coverage of the existing wunty civil
service system. See Local Gov’t Code 3 158.007(a) (“all other employees of the county
not included in the coverage of the system”); Act of May 26, 1985, 69th Leg., R.S., ch.
713, 5 4, 1985 Tex. Ge-n. Laws 2510, 2510 (“all other employees of the county not
incluakd in the vstem”) (italics in original) (repealed by Act of April 30, 1987,7Oth Leg.,
R.S.. ch. 149, 8 49(l), 1987 Tex. Gen. Laws 707, 1306). Unfortunately, this phrase in
section 158.007 uses the word employees in reference to persons whom the legislature
manifkstly intended to add to the civil service system when the existing system already
includes generally “all the employees of the county,” Local Gov’t Code 5 158.002.
It is a presumption of statutory construction that, in the absence of a clear
indication of legislative intent to the contrary, a word that is used in different parts of the
same statute has the same meaning throughout the statute and that a clear meaning of the
word in one part of the statute is attached to it elsewhere. E.g., Walker v. Koger, 99
S.W.2d 1034, 1037 (Tex. Civ. App.--Eastland 1936, writ dism’d). This presumption does
not apply to the word employees as used in sections 158.002 (coverage of basic system)
and 158.007 (coverage of expanded system), however, because these sections were
originally enacted as parts of different statutes. The statutory predecessors to sections
158.007 and 158.010, V.T.C.S. art. 2372h-6, $5 54 8A (repealed by Act of April 30,
1987, 70th Leg., R.S., ch. 149, 5 49(l), 1985 Tex. Gen. Laws 707, 1808), were enacted
in 1985. See Act of May 26, 1985,69th Leg., RS., ch. 713, § 4, 1985 Tex. Gen. Laws,
2510,251O. The original statute from which the rest of subchapter A is derived, V.T.C.S.
article 2372h-6 (repealed by Act of April 30, 1987, 70th Leg., RS., ch. 149, $49(l),
1987 Tex. Gen. Laws 707, 1306), was enacted in 1971. Act ofMay 14, 1971,62d Leg.,
R.S., ch. 262, 1971 Tex. Gen. Laws, 1151.’
‘The Get that both statotcswert eodificd later, in the mm statotc,ss psrts of subchapterA of
chaptcr158ofthcLocal GovcmmcntCode.,see Act of April 30, 1987,7OthLeg., RS.. ch. 149,g 1,1987
Tax. Gen. Lam 943.9444. does not change the ccmstructional sigoificanceof their historyas separate
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Even though sections 158.002 and 158.007 were not enacted as parts of the same
statute, there is another rule of construction that may require that the word employee be
given the same meaning in both sections.
Where the same or a similar term is used in the same connection in
different statutes, it will be given the same meaning in one that it has
in another, unless there is something to indicate thal a d@erent
meaning was intended. This rule applies with particular force where
the meaning of a word as used in one act is clear or has been
judicisliy determined, and the same word is subsequently used in
another act pertaining to the same subject,
L & M-Surco Mfg. v. Winn Tile Co., 580 S.W.Zd 920,926 (Tex. Civ. App.-Tyler 1979,
writ dism’d) (emphasis added). We believe the above-quoted general rule does not
require the attachment of the same meaning to the word emplqees as used in sections
158.001 and 158.007, for (1) the word is not used in the same connection in the two
sections and (2) the legislative history of section 158.007 indicates that a different meaning
of the word was intended.
The manifest legislative purpose of section 158.007 was to allow the most
populous counties that already have civil service systems to expand coverage to additional
persons. This purpose is evident both from the addition of former section 5A (now
section 158.007) to the county civil service law, see Act of May 26, 1985, 69th Leg.,
RS., ch. 713, 34, 1985 Tex. Gen. Laws 2510. 2510 and from the contemporaneous
amendment of the definition of employee in former section 1 (now section 158.001) to
include persons “aaiied to coverage of the county civil service system by an election held
under Section 5A [(now section 158.007)],” id. 5 1, 1985 Te-x. Gen. Laws at 2510 (italics
in original). Therefore, the word employees is not used in the same connection because
section 158.007 was not intended to apply to the same persons but rather to new persons
who before the enactment of that section’s statutory predecessor were not covered by the
county civil service system. If employees meant the same thing in both provisions, then
section 158.007 would be ineffectual because it would “expand” the system to include
persons who already were in the system.
Furthermore, the legislative history of the predecessor to section 158.007,
V.T.C.S. art. 2372h-6, $ 5A (repealed by Act of April 30, 1987,7Oth Leg., RS., ch. 149,
5 49(l), 1987 Tex. Gen. Laws 707, 1306), supports a broad reading of the word
empfopes as used in that section. The author of the bill that was enacted as section SA,
(footnotecontinued)
stat&a, for the legislatwedid net intend that the codificationwerk a &stanttvc change in the law. Id.
0 S&l987 Tex. Gm. Laws at 1308.
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House Bill 1240, see Act ofMay 26, 1985, 69th Leg., R.S., ch. 713, 0 4, 1985 Tex. Gen.
Laws 2510, 2510, explained in the house committee public hearing on House Bill 1240
that the big would allow a county election to determine whether to expand’civil service
wverage to include “everybody in the county with the exception of the auditors’ office,
the wnstitutional officers that are elected, . . and court reporters and a few others.”
Hearings on H.B. 1240 Before the House Comm. on County Affairs, 69th Leg. (Apr. 23,
1985) (statement of Representative Willis) (tape recording available from House
Video/Audio Services office). The problem with the existing county civil service law, the
author reported, was that under it one half of a wunty’s “employees” would be in the
system and the other half would be out of it. Id. We believe that in wnstruing section
158.007, a wurt would follow the injunction, found in section 312.005 of the Government
Code, to attempt diligently to %soertain legislative intent and . . . consider at ail times the
old law, the evil, and the remedy,” and would attach a broad meaning to the word
emplopes as used in section 158.007.
Our consideration of the definition of employee in section 158.001 so far has not
excluded deputy sheriffs and deputy constables from the statutory mewing of the word.
Now we will consider the last sentence of the statutory definition: “The term [employee]
does not include a person who holds an office the term of which is limited by the
wnstitution of this state.” Local Gov’t Code 5 158.001(2). A sheriffs deputies have no
detinite “‘term” of office but have only a %nure” that under statute lasts as long as the
sheriff pleases. Murray v. Harris, 112 S.W.2d 1091, 1093 (l%x. Civ. App.-Amarillo
1938, writ dism’d); see Local Gov’t Code § 85.003; see also BLACK’S LAW DICI-IONARY
1471 (6th ed. 1990) (detining term of oflce as “[t]he period during which elected officer
or appointee is entitled to hold office, perform its tunctions, and enjoy its privileges and
emoluments”). Deputy constables, likewise, are at-will employees. Renken v. Harrik
Con?@, 808 S.W.2d 222, 225 (Tex. App.-Houston 114th Dist.] 1991, no writ); Because
deputy sheriffs and deputy constables have no “term” of office, they are not excluded from
the definition of employee in section 158.001 as officers whose terms are limited by the
constitution.
As we noted above, the final potential exclusions from the definition of employee
in section 158.001 are the two following groups of persons: (1) those who are
specifically excluded from wverage by subchapter B of chapter 158, which wvers a
sherifps department civil service system, Local Gov’t Code $158.032, and (2) those who
are specifically excluded from coverage by section 158.013. We now consider whether
sheriiYs or ~wnstable’sdeputies fall within either or both of those categories.
Subchapter B permits a sheriffs department in a county of more than 500,000
residents to create a civil service system, id. 8 158.032, that covers “employees,” id.
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8 158.035, who are defined as employeesof the sheriffs department, including deputy
sheriffs, id. 8 158.031(3). Section 158.040 provides that a shetifFs department civil
service system “created under . . subchapter [B] and in effect” applies to the exclusion of
any other civil setvice system in the wunty. This provision would exclude from the
operation of a subchapter A expanded civil service system any employees in the sheriffs
department who would have been covered by that system if there were no subchapter B
system in effect. The only other provision of subchapter B that wncerns the exemption of
persons from civil service wverage is section 158.038, which permits the sheriff of a
county that has adopted a subchapter B civil service system to exempt certain sheriffs
department positions from the systems The sherift’s department of the subject
hypothetical county has not established a subchapter B system. Therefore, none of the
provisions of subchapter B wme into play here as exceptions to the coverage of the
county’s expanded civil service system.
Section 158.013 provides, in pertinent part:
(b) This subchapter [(subchapter A)] 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
(3) an elected or appointed ojker under the constitution.
Id.8 158.013(b) (emphasis added).’ The only possible place to fit a deputy constable or
deputy sheritfwithin this section would be under the above-emphasized subsection (b)(3)
exception for “an elected or appointed officer under the constitution.”
%I a snbchaptcrB system “[t]he sheriff may designate as exempt. . the position of chief
deputy.. . lsndj one or mom positions in the offke of departmentallegal counsel.” Local Gov’t Code
0 158.038(b). In addition,in a wunty of a populationof no morethan 2,000,000, the sheCffmay exempt
‘Yourpositionsd majordeputy . . [sod] additionalp&ions in the department;prcvided,howver, that
the sheriBmy not designateas exempta totalof morethan 10 positions,”id., whereas, in a county of a
populationof mom thao 2,000,000, the shuiff may exempt%ddltionslpositionsin the department,not to
oxeced 25 io nuder, that have bwn doleminod by the civil servicecommissionto k adminishatiw or
supnisory~tions;prwided,howevn,lhatthe~‘maynotdesi~astxanptanypoditionintht
deputychssiiications ofqtain or below.” Id. 8 158.038(c).
3Cj: Harings on H.B. 1240 Befox the House Comm. on County Affairs, 69th Leg.
(Apr. 23,1985) (statcmmtof RepwsentativeWiii) (tape recordingavailablefrom House Vide&Audio
kviccs Oftice) (bill matted as statutorypredeccsserIOsection 158.013 would allow county election to
dumnine whetherto expandcivil se&x coverageto include“ewybody in the countywith the exception
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Sheriffs and constables do hold offices established in the constitution. See Tex.
Const. art. V, $5 IS(a) (“In each [precinct] there shall be elected. one Constable”), 23
(“There shall be elected by the qualified voters of each county a Sheriff’). Deputy sheriffs
and deputy wnstables, however, do not .’ But cf: id. art. III, $52e (recognizing, among
others, deputy sheriffs and deputy constables as law enforcement officials for whom
county is authorized to pay medical expenses and salary if officials are injured in course of
duty). Because neither deputy constables nor deputy sheriffs are constitutional officers,
the exceptions under section 158,013(b)(3) of the Local Government Code do not apply
to these persons.
In sum, we conclude that sheriffs and constable’s deputies are wvered by an
expanded civil service system created pursuant to section 158.007 of the Local
Government Code in a county that has not created a subchapter B (sheriffs department)
civil service system.
You also ask whether a county civil service commission may “adopt” section
143.009 of the Local Government Code or other laws that contain a subpoena power.
Section 158.009 of the Local Government Code authorizes a county civil service wmmis-
sion to “adopt or use as a guide any civil setvice law or rule of. . . this state, . . to the
extent that the law. promotes the purposes of this subchapter and serves the needs of
the wunty.” Local Gov’t Code $ 158.009(b). Section 143.009s empowers a municipal
civil service wmmission to “issue subpoenas.” Id. § 143.009(b)(2).
(footaoteumtiooed)
of the mditor’s oftia, the eonstilwional otTian that ase eleeted,. and coon reportersand a few
OthCd).
.fThc position of deputysheriff developedin the common law. 70 AM.JUR.2d She@& Police,
and ConsIables 0 6 (1987); see Rich v. Graybor Elec. Co., 84 S.W.Zd708, 709 (Tex. 193s) (siahtte
providingthat sheriff is liable for acts of deputy“is but declaratoryof the commonlaw”). The positionis
regulatedby statote. See Local Gov’tCede $85.003. Constablesat commonlaw had no well-established
power to appoint permanentdeputies for the general dischargeof the duties of o&cc. See 80 C.J.S.
sheriffs and Consfables 5 22 (1953). Their powerto appointgeneral deputiesis establishedby statute.
See L&al Gov’tCode 8 86.011. The proceduresfor ap@nting both sheriffs aod constable’sdeputiesare
regulatedbystatute. See Local Gov? CMe $0 151.001 (requiringdistrict,county,and pfeckt officersto
apply to commissioners court for authority to appoint depoties, assistants, and derks), 85.003(a)
(appointmentofdepoty sheriffmustbe in writing),86.011 (electedconstablemost applyto commissioners
wmt in writing and show naeasity for deputyto handlebuiness of conaable’s o&o).
%ation 143.009, Local GovernmentCode, which is applicable to monicipal civil setvia
systems,provides,in part:
(lb) During an invedgstion, the ammisiou or the ammission member
may:
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Section 158.009 does not expressly grant a county civil service commission the
power to subpoena witnesses, but it could be read as a broad grant to the commission of
authority to assume any and all powers that may be administratively convenient, so long as
the powers are contained in existing “civil service. law[s] or rule[s].” Section 143.009 is
unmistakably a “civil service law of this state” in the sense of law as a statute.
Furthermore, the issuance of subpoenas to compel the attendance of witnesses could easily
be said to promote the purposes of subchapter A, particularly in view of the commission’s
authority under subsection (a) of section 158.009 to make and enforce rules involving,
among other things, disciplinary actions and grievances.
On the other hand, the substance of section 143.009(b) is not a “law” in the sense
of a rule of action or conduct. See BLACK’SLAW DICTIONARY884 (6th exl. 1990).
Rather, it is a list of delegated powers, including the subpoena power. In section 158.009
the word low is used in the alternative with the word rule, which can mean a “[plrescribed
guide for conduct or action, regulation or principle.” Id. at I33 I. Looking further at the
context, we see that section 158.009 allows the adoption of a law or rule “as a guide,” not
as a power. Finally, note that the rest of section 158.009, that is, subsections (a)6 and (c),’
@oomoIc
conIilloed)
(1) admtaisteroaths;
(2)issuesubpoenastocompeltheanadanceofwitmssaandthe
prodncIion of books, papers, doolmenu, and accoma6 relating IO Ibe
investigation;and
(3) cause the deposition of witnesses miding inside or outside the
state.
....
%bsecIion (a) providesas follows:
ExcepI as provided by Section 158.010, the commission shall adopt,
publish,and enforcerulesregarding:
(1) the ddinilion ofa countyanploycr,
(2) &etion and cksitication of onmty employees;
(3) competitiveexaminationq
(4) pmmetions,seniority,and tenure;
(5) lsyoffsend dismi66als;
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deal only with the commission’s rule-making Rmction. The language of section 158.009
thus tends to suggest a narrower legislative intent to authorize the commission to adopt or
use laws or rules that serve as guides only for its own rule-making process.
Compulsory process is not a power that administrative agencies may assume
merely for convenience and without express statutory authorization. The power to com-
pel testimony inherently and primarily belongs to the judiciary. 8 JOHNH. WIGMORE,
EVIDENCEJN TRIALS AT COMMONLAW Q 2195 (John T. McNaughton rev. 1%1).
“f&ncies have no inherent subpoena power.” LEEMODIESQ ADMINIsTRAm LAW:
f'lWZTICEAM) FXKXDURE 26 (1982). Generally, administrativesubpoena power exists
only by express statutory confend, 73 C.J.S. Public Admininisiroliw Law and Procedure
5 82 (1983), in the absence of which it will not be implied unless essential to meet
statutory objectives, Vance v. Ananich, 378 N.W.Zd 616,617 (Mich. App. 1985); Combs
v. Lrpson, 254 N.Y.S.2d 143, 145 (NY. Sup. Ct. 1964). “‘An administrative
agency. . has only such powers as are expressly granted to it by statute together with
those necessarily implied from the authority conferred or duties imposed.” Stuuffer v. City
of *Antonio, 344 S.W.2d 158. 160 (Tex. 1961).
The law is well settled that the power of subpoena which
formerly was exclusively a judicial power, may now be granted to
nonjudicial bodies, commissions, agencies or officials by statute, but
lhe power mtd the extent of the power is to be oktemined in each
case by the express statutory grant.
(footnotecontinued)
(6) disciplinary
actions;
(7) lpkvmceproxdm; and
(8) othermattersrelatingto the selectionof countyemployeesand the
proceduraland substantiverighl.5,advancement,benefits,and workingconditions
of countyemployees.
LocalGod Code0 158.009(a).
‘Subsection(C)provides
as folloWs:
Tbe ammi6sion may not adopt or enforcea rule requiringa county
employeeto retirebecauseof age. Themmmissionmayadopta rulerequiringa
coonlyemployee,on reachingan age set by the commission,
to submitannuatly
to the commissionan aftidavitfroma physicianstatingthat the employeei
physicallyandmentallycapableof continuingemployment.
LocalGod Code8 158.009@)~
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Pemtsylvra ex rel. Margtom’ v. Or&i, 81 k2d 891, 893 (Pa. 1951). An agency may
not enlarge its powers by its own order. See Railroad Comm ‘n v. Fort Worth & D.C. Ry.,
161 S.W.Zd 560, ,561 (Tex. Civ. App.-Austin 1942, writ refd w.o.m.). Only such
persons as are authorized by statute may issue subpoenas. 97 C.J.S. Witnesses fj 22
(1957).
Based on the language of section 158.009 and the foregoing authorities, we
conclude that the section does not authorize a county civil service commission to endow
itselfwith subpoena power by its own rule. You do not ash and we do not consider hem
whether a county civil service wmmission has subpoena power by necessary implication
to effectuate other statutory powers or duties.
SUMMARY
In a county whose 5heriff"s department has not established a
separate civil service system under subchapter B of chapter 158 of
the Local Government Code, a wunty civil service system resulting
from an expansion election under section 158.007 of the Local
Government Code does include deputy sheriffs and deputy
constables.
Section 158.009 of the Local Government Code does not
authorize a county civil service commission to endow itself with
subpoena power by its own rule.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opiion Committee
Prepared by James B. Pinson
Aasistmt Attorney General
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