Honorable Adam R. Johnson Executive

Director State Department

of PublicWelfare Austin,Texas Honorable

OrvilleS. Carpenter Chairman

and Executive

Director Texas Unemployment Compensation

Commission Austin,Texas Gentlemen: Opinion No. O-1752 Re: May a JointMerit System Council

be established

';y the Executive

Directors

of the State Department of PublicWelfareend Texas Unemployment

Compensation Collmission?
We received

your letterof December1, 1939, in which you request our opinionon the following question: "DO we have authority under the laws creating these agencies and the generallaws of the State of Texas to establish by regulation

such a Joint Merit System Councilas that contemplated by the minimum standards of the Social Security Board; or, in the absenceof any specificstatutory authorization,

is there any prohibition'against such joint actionby us?" You advisethat the Federal Security Agency has adopted

minimum standards

for a merit systemof personnel administration

and enclose

a copy of the minimum standards for a merit system in these agencies. A perusalof the minimum standards set out in the folder discloses that in the absenceof a State civil servicesystemthere will be established a merit systemadmin-~ istered

by.an impartial

body referred

to s.s the Merit SystemCouncil, the members of which are to be appointed by the administrative agencies

or by the Governor

on recommendation

of the administrative agencies,

for statedoverlapping terms, and no member of which is otherwise employed

as an official

or employee

of any of the State agencies affected. Briefly stated, the minimum standards

providefor a complete merit systemor civil service plan to be administered

by the Merit SystemCouncil. Among other requirements, the CouncilHonorable Adam R. Johnssn,

Page 2 (O-1752) Honorable

OrvilleS. Carpenter

is to appointa merit system supervisor to conduct

written exsminations~ given to **appliCmtB,** and establish registers

of eligibles. All poBitions not specifically

exempted

are to be filled from a regieter of eligibles

which will include

a limited

number of the highest available

eligibles. Further, the eligibility

of an employee

for promotion

will be determined on recommendation of the agencyand certification by the merit system supervisor that the employeemeets the minimumrequirements and **is** qualified

for promotion

to the class of position in question.

A scrutiny

of the statutes

revealsthat the selection of employees for the State Department of PublicWelfare **has** been vested in the executive director

and the members of the board. Section k of Article695c, Revised Civil Statutes

of Texas, reads: "The Executive

Director

**shall** be the executive and admin**iBtmtiVe** officerof the State Department. The ExecutiveDirector, with the consent and approvals

of a majority

of the members of the Board **shall:**

**“ a.**  Classify

all positions

In the administration of this Act; "b. Fix objective BtandardB

for all positionsincluded in the classifications;
"C. Formulatesalaryschedules for the services **so cla~si**  fled, subject

to biennial

appropriations; "d. Provide for a fair and impartial selection,

appointment, retention

and promotion

of personnel

in accordance

with the classification

and compensation

plans therein

before provided." The authority

to appointemployees for the Texas UnemploymentCompensation

**Commission rests**  with the **Commission.** Article 5221-b-9,Subdivision (d), RevisedCivil Statutes, provides

as **follows:** "Personnel: Subjectto otherprovision6 of this Act, the **Commission iB**  authorized to appoint,

fix the compensation, and prescribe

the dutiesand powers of such officers, accountants, attorneys,

experts,

and other persons **as may**  be necessary in the performance

of its duties. The Commission shallnot employe or pay any personwho is an officeror cossnittee member of any political

party organization. The **Comis~ion may**  delegate to any such person so appointed such power and authority as it deems reasonable and proper for the effectiveadministrationof this Act, and may, in its discretion, bond any perSon handling

moneys or signing

checkshereunder."Honorable

Honorable

Adam R. Johnson,

Page 3 (O-1752) OrvilleS. Carpenter

When a civil service cosunieeion

16 providedfor by statute, it takes over certain

powers that were formerly vested in the administrative head or appointing

power of the Sovenussnt.The Legislature takes the power to appoint employees

or removethem and places this functionin the hand8 of an impartial body. It transfers from one head to anothercertain administrative

powers; and, in creating

civil servicecommissionB, the Legislature

trsnsfers

the employment

bureau of the Government to a new body. HermanJ. Friedman, 25 Harvard Law Review 712.

Under the relatedfacts,the creation of a civil service

or merit system of personnel administration

by mutual agreement betweentwo separate appointing

powers is not permissible in the absenceof statutory enactment. The selection

and appointing

power of each agencyhas been provided for in the statutes quotedand where the Legislature delegating

a power directs the manner of its exercise, that method **is** exclusive of all othere. 39 T. J. 68; WichitaElectric Co. v. Hinckley,

131 S. W. 1192. Since the ultimate

appointee

**is** a public officer and so an "agent
**or servsnt**  of the **sovereign** people of the State", hs **BUBt** "derive

his authority either

by election

by the people or appointment by that tribuneto whom the people have confided the power of appointment." State v. Washburn, Sup. Ct. of MIBBOLI~I,

67 S. W. 592. The duty of investigating and determining

as to the qualifications of applicants

for publicposition **is** placed on the appointing power. When the Legislature **has** placed the authority of making appointments upon officers and boards,and vests them withna discretion and judgment

to determine

who is best qualified

to serve the public,the courts cannot supervise the exercise of such authority, nor control

the discretion

and judgment **80** vested. An appointment

consists

in the choice

by the appointing

power of the person appointed,

end **involves** the exercise of discretion. While the appointing power may listento the recommendation or advice of other8

. . . yet the **Be** lection

must finally

be the act of the appointing power. I.2

C. J. 897; Dever V. Humphrey, **sup.** Ct. Of **&nBaB,** 75 Pacific 1037; 45 C. J. 952. The creation

of such a board by the **agenCie8 named**  **would mount**  **to an**  exercise

of **1egiBhtiVe** power, a prerogative.reeerved to the legislative body, of this stateby our Texas Constitution, Article III, Section1.
**Trusting** that this will snsweryour inquiry, we are

**YOUrB** very truly APPROVEDDEC 9, 1939 I*/ Gerald c. Mann ATTORNEXCENERALOFTEXAS **HJ:RS:IM** APPROVED OPINION coM?.frrrm BY **/B/** BWR CHAIRMAN ATTORNEYGENEXAL OF TEXAS By **/B/** RirBchie

Johnson Hirschie

Johnson **ABBiBtallt**