Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 28, 2008

The Honorable Bill Burnett Opinion No. GA-0656
San Jacinto County Criminal District Attorney
#1 State Highway 150, Room 21 Re: Whether a county policy prohibiting the
Coldspring, Texas 77331-0430 rehire of an individual within one year after
terminating an employment relationship with the
county applies to the hiring ofa deputy constable
(RQ-0681-GA)

Dear Mr. Burnett:

You explain that the San Jacinto County Commissioners Court has adopted a policy that
generally prohibits the rehiring ofan individual who has terminated an employment relationship with
the county for a period of one year following the termination:

When an employee terminates from San Jacinto County, the
employee is not eligible for rehire for a period of one year, unless the
employee was classified as a part-time employee and rehired as a full
[-]time employee. 1

You ask whether this policy may be applied to restrict a county constable's hiring of a deputy
constable who, within one year prior to being hired by the constable, terminated a full-time position
with another county department. See Request Letter, supra note 1, at 1.

The powers of both a county commissioners court and a constable are limited. A county
commissioners court's powers encompass only those expressly delegated to the commissioners court
by the Texas Constitution or statutes and those necessarily implied therefrom. See TEX. CONST. art.
V, § 18(b) (providing that a commissioners court "shall exercise such powers and jurisdiction over
all county business, as is conferred by this Constitution and the laws of the State, or as may be
hereafter prescribed"); Canales v. Laughlin, 214 S.W.2d 451,453 (Tex. 1948); Anderson v. Wood,
152 S.W.2d 1084, 1085 (Tex. 1941); Hooten v. Enriquez, 863 S.W.2d 522, 529 (Tex. Civ. App.-EI

lLetter from Honorable Bill Burnett, San Jacinto County Criminal District Attorney, to Honorable Greg Abbott,
Attorney General of Texas, at 2 (Feb. 21, 2008) (footnote added) (on file with the Opinion Committee, also available
at http://www.texasattorneygeneral.gov) [hereinafter Request Letter] (quoting San Jacinto County Policy on Termination
no. 3 (attached to Request Letter)).
The Honorable Bill Burnett - Page 2 (GA-0656)

Paso 1993, no writ); Renfro v. Shropshire, 566 S.W.2d 688, 690 (Tex. Civ. App.-Eastland 1978,
writrefdn.r.e); see also Pritchard &Abbottv. McKenna, 350 S.W.2d 333,334 (Tex. 1961) (finding
that, although a commissioners court is not "expressly clothed with constitutional or statutory
authority to contract for" certain services, it has authority that may be implied "from the powers that
have been expressly granted to and the duties imposed upon this body by law"). Likewise, a
constable, who holds an elected, constitutional office, is limited to those powers expressly conferred
by or necessarily implied from the constitution and statutes. See Crosthwait v. State, 138 S.W.2d
1060, 1061 (Tex. 1940) (stating that an "officer must look to the Act by which his office is created
... to ascertain the extent ofhis powers"); Tex. Att'y Gen. Ope No. JC-0239 (2000) at 2 (stating that
a county officer is limited to those powers expressly conferred by or necessarily implied from
statutes).

Both a county commissioners court and an elected district, county, or precinct officer play
a role in the officer's hiring of an employee. The commissioners court's role is grounded in its
jurisdiction over the county's budget. See Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex.
App.-'Austin 1997, pet. denied) (noting that a commissioners court's authority over the positions
in the sheriff s office stems from its budgetary power). Thus, in general, when a district, county, or
precinct officer "requires the services of deputies, assistants, or clerks in the performance of the
officer's duties," the officer must "apply to the commissioners court ... for the authority to appoint
the employees." TEX. Loc. GOV'T CODE ANN. § 151.001(a) (Vernon 2008). After receiving such
an application, the commissioners court "shall determine the number ofemployees that" the officer
may appoint and "shall authorize their appointment." Id. § 151.002. Section 86.011(a) ofthe Local
Government Code provides similarly with respect to a constable's appointment ofdeputy constables:

An elected constable who desires to appoint a deputy must
apply in writing to the commissioners court of the county and show
that it is necessary to appoint a deputy in order to properly handle the
business of the constable's office that originates in the constable's
precinct. The application must state the name ofthe proposed deputy.
The commissioners court shall approve and confirm the appointment
of the deputy only if the commissioners court determines that the
constable needs a deputy to handle the business originating in the
precinct.

Id § 86.011(a); see State v. Johnson, 52 S.W.2d 110, 111 (Tex. Civ. App.-SanAntonio 1932, writ
dism'd w.o.j .) (explaining that the Legislature's adoption ofamendments to the statutory predecessor
to section 86.011 "left intact" the statutory predecessor to sections 151.001 through 151.004). The
commissioners court may later reconsider the number ofpositions in a particular department during
the annual budget process. Tex. Att'y Gen. Ope No. JC-0239 (2000) at 2. 'And the commissioners
court bears "sole authority to 'set the amount of the compensation, office and travel expenses, and
all other allowances for ... employees who are paid wholly from county funds. '" Tex. Att'y Gen.
Ope No. JC-0239 (2000) at 2 (quoting TEX. Loc. GOV'T CODE ANN. § 152.011 (Vernon 1999)).
The Honorable Bill Burnett - Page 3 (GA-0656)

An elected officer's role-which the Beaumont court of appeals has described as
encompassing "a broad discretion in the selection of their staff and their employees"-is based on
the officer's responsibility to perform the constitutional and statutory duties assigned to the officer.
Williams v. Bagley, 875 S.W.2d 808, 811 (Tex. App.-Beaumont 1994, no writ); see also Abbott,
946 S.W.2d at 517 ("The limitations on the powers of the [c]ommissioners [c]ourt are founded in
the policy that elected officers, such as sheriffs, discharge the public trust and carry the responsibility
for the proper discharge of that trust, and therefore, should be free to select persons of their own
choice to assist them."). "In Texas, an elected officer occupies a sphere of authority, which is
delegated to that officer by the Constitution and laws, [with] which another officer may not interfere
... or usurp." Abbott, 946 S.W.2d at 517. Accordingly, when a commissioners court has approved
an elected officer's application to appoint certain positions, it is the elected county officer who may
appoint the employees. TEX. Lac. GOV'T CODE ANN. § 151.003 (Vernon 2008). Moreover, a
commissioners court is expressly prohibited from attempting "to influence the appointment of any
person to an employee position authorized by the court." Id. § 151.004. And, although Local
Government Code section 86.011 specifically requires a constable to list the name of a proposed
deputy in an application to the commissioners court, it does not give the commissioners court
authority to influence the appointment of a particular individual or to refuse the constable's
application based upon the court's objection to the proposed deputy named in the application. See
ide § 86.011(a).

Thus, the Fourteenth District Court of Appeals determined in 1991 that "[a]ppointment of
deputy constables is within the exclusive control of the Constable." Renken V. Harris County, 808
S.W.2d 222,226 (Tex. App.-Houston [14th Dist.] 1991, no writ). The commissioners court, even
by virtue of its powers over the county budget, "has no authority ... to appoint or terminate a deputy
constable." Id.; see also Tex. Att'y Gen. Ope No. 0-7081 (1946) at 7 (stating that, under section
86.011 's statutory predecessors, "[t]he constable makes the appointment [ofa deputy constable] and
is the only person who can discharge" the deputy constable); cf Abbott, 946 S.W.2d at 517 (stating
that a commissioners court has no authority to appoint or terminate a sheriff s office employee or
to dictate the terms of employment of a sheriff s employee); Renfro V. Shropshire, 566 S.W.2d 688,
692 (Tex. Civ. App.-Eastland 1978, writ refd n.r.e.) (stating that a commissioners court lacks
authority "to screen applicants or to veto appointments made by the county clerk").

Courts and this office repeatedly have determined that county-wide policies that would
impinge upon an elected officer's authority to appoint and fire individuals ofthe officer's choosing
do not apply to the officer. For example in 1994 the United States Court of Appeals for the Fifth
Circuit, construing Texas law, determined that a commissioners court had no authority to adopt a
policy allowing elected county officials (other than commissioners) to terminate employees only for
just cause. See Garcia v. Reeves County, 32 F.3d 200, 203 (5th Cir. 1994). And this office
concluded in 19'86 that a county policy prohibiting county employees from running for office in a
partisan election did not apply to the employees of elected officers who did not sit on· the
commissioners court. See Tex. Att'y Gen. Ope No. JM-521 (1986) at 3. As the 1986 opinion states:

The commissioners court has no power to interfere in the
hiring decisions made by other county officers; therefore, it may not
·The Honorable Bill Burnett - Page 4 (GA-0656)

require those county officers to terminate an employee who becomes
a candidate for partisan political office. This policy does not affect
the employment decisions ofelected constitutional officers other than
members of the commissioners court.

Id.

Although neither a court nor this office previously has considered whether a policy
prohibiting the rehiring of an employee for a period of one year can be applied to an elected district,
county, or precinct officer other than a county commissioner, such as a constable, we believe the
answer is clear: such a policy impinges upon the constable's authority to appoint individuals of the
constable's choosing. Accordingly, the San Jacinto County policy at issue here. cannot-be applied
to bar a constable from appointing a deputy who has terminated a full-time employment relationship
with the county within the past year. 2

Zy ou suggest that our conclusion may affect policies adopted by some counties "requiring drug screening as
a prerequisite for employment and [requiring] a criminal history check for positions requiring the use of computers,
ac·c·ess to master keys, or other sensitive positions." Re.quest Le·tteT, supra note- 1, at 2. This opinion considers only the
policy you describe that prohibits the rehire of a former county employee for one year following the employee's
separation from employment. See id at 1. We do not address the validity of any other policy.
The Honorable Bill Burnett - Page 5 (GA-0656)

SUMMARY

A county policy adopted by the commissioners court that
prohibits the rehire of an individual whose employment relationship
with the county terminated within the past year does not apply to a
constable.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee