DRNEY GENERAL 

1 

Y------ 

i’his Opinion 

1 

May 20, 1975 

The Honorable Henry Wade 

District Attorney 

Dallas County Government Center 

Dallas, Texas 75202 

Opinion No. H- 619 

Re: Conetruing the County 

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). 

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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 governmental 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 purchasing 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. 

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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 qualifications 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 subsequent 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 
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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 

p. 2740