Honorable Adam R. Johnson 

Executive Director 

State Department of Public Welfare 

Austin, Texas 

Honorable Orville S. Carpenter 

Chairman and Executive Director 

Texas Unemployment Compensation Commission 

Austin, Texas 

Gentlemen: 

Opinion No. O-1752 

Re: May a Joint Merit System 

Council be established ';y 

the Executive Directors of 

the State Department of 

Public Welfare end Texas 

Unemployment Compensation 

Collmission? 

We received your letter of December 1, 1939, in which you request 

our opinion on the following question: 

"DO we have authority under the laws creating these agencies and the general laws of the State of Texas to establish by 

regulation such a Joint Merit System Council as that contemplated 

by the minimum standards of the Social Security Board; or, in the 

absence of any specific statutory authorization, is there any 

prohibition'against such joint action by us?" 

You advise that the Federal Security Agency has adopted minimum 

standards for a merit system of personnel administration and enclose a copy 

of the minimum standards for a merit system in these agencies. A perusal of 

the minimum standards set out in the folder discloses that in the absence of 

a State civil service system there will be established a merit system admin-~ 

istered by.an impartial body referred to s.s the Merit System Council, the 

members of which are to be appointed by the administrative agencies or by the 

Governor on recommendation of the administrative agencies, for stated overlapping 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 provide for a complete merit system or civil service plan to be administered by the Merit System Council. Among other requirements, the Council 
Honorable Adam R. Johnssn, Page 2 (O-1752) 

Honorable Orville S. Carpenter 

is to appoint a 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 agency and certification by the merit system supervisor that the employee meets the minimum requirements and is qualified for promotion to the 

class of position in question. 

A scrutiny of the statutes reveals that the selection of employees 

for the State Department of Public Welfare has been vested in the executive 

director and the members of the board. Section k of Article 695c, Revised 

Civil Statutes of Texas, reads: 

"The Executive Director shall be the executive and adminiBtmtiVe officer of the State Department. The Executive Director, 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 positions included in 

the classifications; 

"C. Formulate salary schedules for the services so cla~sifled, 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 appoint employees for the Texas Unemployment Compensation Commission rests with the Commission. Article 5221-b-9, Subdivision (d), Revised Civil Statutes, provides as follows: 

"Personnel: Subject to other provision6 of this Act, the 

Commission iB authorized to appoint, fix the compensation, and 

prescribe the duties and powers of such officers, accountants, 

attorneys, experts, and other persons as may be necessary in 

the performance of its duties. The Commission shall not employe or pay any person who is an officer or 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 effective administration of this Act, and may, in its discretion, bond any perSon handling moneys or signing checks hereunder." 
Honorable 

Honorable 

Adam R. Johnson, Page 3 (O-1752) 

Orville S. Carpenter 

When a civil service cosunieeion 16 provided for 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 remove them and places this function in the hand8 of an impartial 

body. It transfers from one head to another certain administrative powers; 

and, in creating civil service commissionB, the Legislature trsnsfers the employment bureau of the Government to a new body. Herman J. Friedman, 25 Harvard Law Review 712. 

Under the related facts, the creation of a civil service or merit 

system of personnel administration by mutual agreement between two separate 

appointing powers is not permissible in the absence of statutory enactment. 

The selection and appointing power of each agency has been provided 

for in the statutes quoted and where the Legislature delegating a power directs 

the manner of its exercise, that method is exclusive of all othere. 39 T. J. 

68; Wichita Electric 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 tribune to 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 public position 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 listen to the recommendation or advice of other8 . . . yet the Belection 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 state by our Texas Constitution, Article III, Section 1. 

Trusting that this will snswer your inquiry, we are 

YOUrB very truly 

APPROVED DEC 9, 1939 

I*/ Gerald c. Mann 

ATTORNEX CENERALOFTEXAS 

HJ:RS:IM 

APPROVED 

OPINION 

coM?.frrrm 

BY /B/ BWR 

CHAIRMAN 

ATTORNEY GENEXAL OF TEXAS 

By /B/ RirBchie Johnson 

Hirschie Johnson 

ABBiBtallt