DRNEY GENERAL
1
Y------
i’his Opinion
1
May 20, 1975
The Honorable Henry Wade Opinion No. H- 619
District Attorney
Dallas County Government Center Re: Conetruing the County
Dallas, Texas 75202 Civil Service Act, article
237211-6, V. T. C. S.
Dear Mr. Wade:
You have requested our opinion concerning the applicability of the
County Civil Service Act, article 2372h-6, V. T. C. S., to assistant county
auditors, assistant purchasing agents, and adult probation officers.
In those counties adopting a civil service system the Act sets up
a Civil Service Commission and gives it the power to make, publish and
enforce rules relating (1) to the selection and classification of county
employees, (2) to competitive examinations, (3) to promotions, seniority
and tenure, (4) to layoffs and dismissals, (5) to disciplinary actions,
grievance procedures and other procedureal and substantive rights of
employees, and (6) to other matters having to do with the selection of
employees and their advancement, rights, benefits and working conditions.
Art. 237213-6, sec., 8, V. T. C.S.
Section l(3) of Article 2372h-6 provides:
‘Employee” means any person who obtains his
position by appointment and who is not authorized
by statute to perform governmental functions in his
own right involving some exercise of discretion, but
does not include a holder of an office the term of which
is limited by the Constitution of the State of Texas.
(Emphasis added).
p. 2736
The Honorable Henry Wade - Page 2 (H-619)
The threshold question concerning the applicability of the act to a
particular position is therefore whether its occupant “[a] performs govern-
mental functions [b] in his own right [c] involving some exercise of discretion.”
Green v. Stewart, 516 S. W. 2d 133 (Tex. Sup. 1974).
In GE, the Texas Supreme Court addressed this provision in the
context of deputy tax assessor-collectors. The Court noted the language of
article 7252, V. T. C. S., which provides that “[e]ach Assessor and Collector
of Taxes may appoint one or more deputies to assist him. . . , ” and held this
language to indicate that the deputies “do not act in their own right but in the
right of the assessor-collector. . . ” 516 S. W. 2d at 135. The Court stated
that “[o]ne who acts in his own right is . . . largely independent of the control
of others,” 516 S. W. 2d at 136, and finding the deputies not to be so, held
them to be within the definition of “employee” in article 2372h-6, V. T. C. S.
Article 1580, note, section l(g) (1975 Supp.) provides:
[The county purchasing] agent may have assistants
to aid in the performance of his duties. . .
No means of selection of these assistants is provided. In our opinion
Green compels the conclusion that assistant county pumhasing agents are
within the definition of employee contained in section l(3) and are subject to
the County Civil Service Act. The language of the statute providing for them
is quite similar to that of deputy tax assessor-collectors. Assistant purchas-
ing agents merely aid the purchasing agent in the performance of= duties,
and therefore do not act in their own right.
Article 42.12, Tex. Code. Crim. Proc., the Adult Probation and
Parole Law, provides for the selection of adult probation officers in section
10.
Where more than one probation officer is required,
the [district] judge or judges shall appoint a chief adult
probation officer or director, who, with their approval,
shall appoint a sufficient number of assistants and other
employees to carry on the professional, clerical, and
other work of the court.
p. 2737
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The Honorable Henry Wade - Page 3 (H-619)
The judge or judges, with the approval of the
juvenile board of the county, may authorize the chief
probation or chief juvenile officer to establish a
separate division of adult probation and appoint adult
probation officers and such other personnel as required.
Section 1 states that “[i]t is the purpose of this Article to place wholly
within the State courts of appropriate jurisdiction the responsibility for . . .
the supervision of probationers. . .‘I
The purpose of article 42.12 as set out above is inconsistent with the
provisions of the County Civil Service Act. The members of the Civil Service
Commission are appointed by the Commissioners Court, article 2372h-6,
section 6(a), and the commission has authority to enact rules concerning the
selection and dismissal of employees. In our view the court’s responsibility
for the supervision of probationers includes these facets of the employment
of probation officers. See Commissioners Court of Hays County v. District
Judge, 506 S. W. 2d 630(Tex. Civ. App. -- Austin 1974, writ ref’d., n. r. e.);
Commissioners Court of Lubbock County v. Martin, 471 S. W. 2d 100 (Tex.
Civ. App. -- Amarillo 1971, writ ref’d., n. r. e.).
It is therefore our opinion that adult probation officers are not within
the application of the County Civil Service Act.
With respect to assistant county auditors, article 1650, V. T. C. S.,
provides in part:
The County Auditor of any county of this State may, at
any time, with the consent of the District Judge or
District Judges having jurisdiction as hereinafter
provided, appoint a first
’ assistant and other assistants
who shall be authorized to discharge such duties as may
be assigned to them by the County Auditor and provided
for by law. In counties where only one assistant is
appointed, such assistant shall be authorized to act for
the County Auditor during his absence or unavoidable
detention with respect to such duties as are required by
law of the County Auditor. . .
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The Honorable Henry Wade - Page 4 (H-619)
The County Auditor shall prepare a list of the
number of deputies sought to be appointed, their duties,
qualifications and experience, and the salaries to be
paid each, and shall certify the list to the District
Judge, or in the event of more than one District Judge
in the county, to the District Judges, and the District.
Judge or the District Judges shall then carefully consider
the application for the appointment of said assistants and
may make all necessary inquiries concerning the qualifica-
tions of the persons named, the positions sought to be
filled and the reasonableness of the salaries requested. . ,
no assistant shall be employed except in the manner
herein provided.
In our view the first asaistant is assigned sufficient statutory duties
in his own right to be within the exception to the definition of “employee”
contained in section l(3) of the County Civil Service Act. See Pfeffer v.
Mahnke, 260 S. W. 1031 (Tex. Comm. App. 1924). The rezning assistants
would not be excepted, for responsibilities of their positions are derivative
of the duties of the county auditor. -See Green v. Stewart, supra.
In addition, in our opinion no assistant county auditore who are within
the scope of article 1650 are subject to the County Civil Service Act. Article
1650 was last amended in 1973. Acts 1973, 63rd Leg., ch. 339, p. 765. The
Legislature has made clear that assistant county auditors are to be selected
under the supervision of the district judges, and “no assistant shall be
employed ” in any other manner. The County Civil Service Act cannot have
impliedly repealed article 1650, since the latter article was amended sub-
sequent to the enactment of the body of the former and concurrently with
its amendment. Furthermore, since both statutes are in effect, the more
particular provisions of article 1650 must control over article 2372h-6,
for the latter applies to county employees in general. Forwood v. Taylor,
214 S. W. 2d 282 (Tex. Sup. 1948); State v. Balli, 190 S. W. 2d 71 (Tex. Sup.
1944) . Aseistant County Auditors are therefore not within the application
of Article 237211-6, the County Civil Service Act. Attorney General Opinion
M-1088 (1972) is overruled to the extent it conflicts.
p. 2739
. . -
The Honorable Henry Wade - Page 5 (H-619)
SUMMARY
Assistant county purchasing agents are subject
to the County Civil Service Act, while adult
probation officers and assistant county auditors
are not. Attorney General Opinion M-1088 (1972)
is overruled to the extent it conflicts.
Very truly yours,
/ / Attorney General of Texas
APPROVED:
Opinion Committee
jwb
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