Untitled Texas Attorney General Opinion

The Honorable Henry Wade Opinion No. H-995 Criminal District Attorney Dallas County Re: Applicability of Sixth Floor, Records Building civil service laws to Dallas, Texas 75202 employment of deputy sheriffs. Dear Mr. Wade: You have requested our opinion concerning the appli- cability of the County Civil Service Act, article 2372h-6, V.T.C.S., to deputy sheriffs in Dallas County. In counties adopting a civil service system under the Act, a civil service commission is authorized to make and enforce rules relating to selection, promotion, discipline, and dismissal of employees, as well as other matters pertaining to em- ployment and working conditions. V.T.CIS. art. 2372h-6, 9 a. The County Civil Service Act applies to employees, defined to include any person who obtains his position by appointment and who --- is not authorized b statute to perform 9 unctions iiihis own some exerczeof - di&retion . . . . V.T.C.S. art. 2372h-6, 5 l(3). (Emphasis added). The under- lined language excludes from the operation of the Act one who (a) performs governmental functions, (b) in his own right, (c) involving some exercise of discretion. Green v. Stewart, 516 S.W.Zd 133 (Tex. 1974). In construing tEZE-ra=uage, the Supreme Court also relied on a definition of employee which it had used to distinguish "employee" from "officer" in interpreting article 16, section 30 of the Constitution. See - Aldihe independent School District v. Standley 280 S.W.Zd 578 (Tex. 1955). One's status aran office; is determined by "whether any sovereign function of the govern- p. 4096 The Honorable Henry Wade -~page 2 (H-985) -ment is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others." Green 5 Stewart, supra, at 135. Our task is to determine whether a deputy sheriff is an employee as defined by article 2372h-6, V.T.C.S., and the Supreme Court in construing that Act. Article 6869, enacted prior to the County Civil Service Act, describes the powers of deputy sheriffs and provides for their appointment and termination: Sheriffs shall have the power, by writing, to appoint one or more depu- ties for their respective counties, to continue in office durinc the pleasure of the sheriff; who sha~ll have power and authority toperform all --- the actznd duties oFtheir the duties of his office, take and subscribe to the official oath. . . . (Emphasis added). A deputy sheriff is "a public officer invested by law with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." --Rich v. Graybar Electric Co., a4 s.w.zd 708 (Tex. 1935); Murray v. State, 67 S.W.Zd 274 (Tex. Crim. App. 1933); -see also Murra v. Harris, 112 S.W.Zd 1091 (Tex. Civ. App. -- Ama- -ix+--. 38, writ dism'd). We believe that case law clearly makes the deputy sheriff an officer. We also believe that he performs "governmental functions in his own right involving some exercise of discretion" and thus is not an employee within the terms of article 2372h-6, V.T.C.S. He is "invested by law with some portion of the sovereign functions of the government." pray v. State, suora at 216. The Code of Criminal Proce ure imposes on him manyduties that require him to exercise discretion and act independently of the control of the sher'iff. Crim. Proc. arts. 2.12, 2.13, 2.14, 2.17, .2.18x. The deputy sheriff performs governmental functions in his ownright, and not in the right of the sheriff. In Gr~e~env. - Stewart, the deputies appointed "to assist" the tax p. 4097 The Honorable Henry Wade - page 3 (H-985) assessor-collector did not act in their own right. A deputy sheriff, however, does not merely assist the sheriff, but has statutory authority to perform all of his duties. - .~ .__ See Nail1 v. State, 129 S.W. 630 (Tex. Crim. App. 1910). His autiesxre assigned him by statute., and not by delegation from the sheriff. See Pfeffer v. Mahnke, 260 S.W. 1031 (Tex. 1924); AttornFGeneral O&ion H-619 (1975). The sheriff cannot in fact limit his statutorily authorized duties and powers. Trammel v. Shelton, 45 S.W. 319 (Tex. Civ. App. 1898, no writ). AEhough some of the deputy's official acts must be done in the sheriff's name, he can convey property under his own name following an execution sale. Compare Herndon --v.~ Rewed, 18 S.W. 665 (Tex. 1891) and Miller v. Alexander, 13 Tex. 497 (1855) with Cortimi lia'- ml=, 326 S.W.Zd 278 (Tex. Civ. App. --9, -- Houston 1 G m'see -- 'also Attorney General Opinion O-5394 (1943). We are aware that some courts have defined "deputy" as one "who exercises an office in another's right." Sanchez v: Murphy, 385 F. Supp. 1362 (D. Nev. 1974); Trammel1 5 E-2& c;:;"t;y+ of New York, 45 F. Supp. 36,6 (E.D. Leonax mS.W. 706 (MO. 1909). We have not fouiiii case in which a Texas court has adopted this definition of deputy, and we do not believe it applies to a deputy sheriff in Texas. The Texas courts have instead emphasized that the deoutv is the sheriff's alter eoo. Heye v. Moody, 4 S.W. ?!42-(Tex. 1887); Bigham v. State, 148 S.W.2d 835 (Tex. Crim. App. 1941). In any case, judicial definitions of "deputy" in statutes governing other offices do not necessarily apply to the deputy sheriff, who holds a common law office and whose role is to some extent defined by case law, of which statute is merely declaratory. Rich v. Grayb;r Electric Co., supra; Blackburn v. Brorein, 70 So. Zd 2 3 (Fla. 195x We conclude that zputy sheriffs are not employees within the terms of the County Civil Service Act. Our opinion is consistent with the decisions~ of courts in other states that deputies with duties equal to the sheriff's are not covered bv civil service ~reaulations. Blackburn v. Br'orein, supra; 321 N.Y.S.m mp. Div. Service § 15: 70 Am. Jur.Zd, Sheriffs,Police and Constables 5 2. In reaching this conclusion, owe have considered only those deputies vested with governmental functions. We have not considered aooointments like those made bv the countv tax assessor-coliector in Green v. Stew~art, who deputized all employees in his office, including typists and file clerks. p. 4098 The Honorable Henry Wade - page 4 (H-985) We need not answer your remaining questions, which were premised upon a finding that the~county Civil Ser- vice Act applies to deputy sheriffs. Attorney General Opinion M-1088 (1972) is hereby overruled to the extent inconsistent with this opinion. SUMMARY The County Civil Service Act, article 2372h-6, V.T.C.S. does not apply to deputy sheriffs. -Very truly yours, Attorney General of Texas APPROVED: DZ~gg--- t Assistant c. ROBERT HEATH, Chairman Opinion Conanittee p. 4099