# DRNEY GENERAL

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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 ofthe County Civil Service Act, article 2372h-6, V. T. C.S., toassistant 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 ofcounty employees, (2) to competitive examinations, (3) topromotions, 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 dowith the selection of employees and their advancement, rights, benefits and working conditions. Art. 237213-6, sec., 8, V.T. C.S.

Section l(3) ofArticle 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 ofdiscretion, but does not include aholder ofan office the term ofwhich is limited by the Constitution ofthe State of Texas. (Emphasis added).

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The threshold question concerning the applicability ofthe act to a particular position is therefore whether its occupant “[a] performs governmental functions [b] in his own right [c] involving some exercise ofdiscretion.” Green v. Stewart, 516S.W. 2d 133(Tex. Sup. 1974).

In GE, the Texas Supreme Court addressed this provision in the context ofdeputy 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 ofthe assessor-collector.
. .” 516S.W. 2dat 135. The Court stated that “[o]ne who acts in his own right is
. . . largely independent ofthe control ofothers,” 516S.W. 2dat 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 ofhis duties.
. . No means of selection ofthese 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 ofthe 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 ofadult probation officers in section 10. Where more than one probation officer is required,

the [district] judge orjudges shall appoint a chief adult probation officer or director, who, with their approval, shall appoint a sufficient number ofassistants and other employees to carry on the professional, clerical, and other work ofthe court.

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The Honorable Henry Wade - Page 3 (H-619)

The judge or judges, with the approval ofthe juvenile board ofthe county, may authorize the chief probation or chief juvenile officer to establish a separate division ofadult probation and appoint adult probation officers and such other personnel as required. Section 1states that “[i]t is the purpose ofthis Article toplace wholly within the State courts ofappropriate jurisdiction the responsibility for
. . . the supervision ofprobationers.
. .‘I

The purpose ofarticle 42.12 as set out above is inconsistent with the provisions ofthe County Civil Service Act. The members ofthe 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 ofemployees. In our view the court’s responsibility for the supervision ofprobationers includes these facets ofthe employment ofprobation officers. See Commissioners Court ofHays County v. District Judge, 506S.W. 2d630(Tex. Civ. App. -- Austin 1974, writ ref ’d., n.r.e.); Commissioners Court of Lubbock County v. Martin, 471S.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 ofthe County Civil Service Act.

With respect to assistant county auditors, article 1650, V. T. C.S., provides in part:

The County Auditor ofany county ofthis State may, at any time, with the consent ofthe District Judge or District Judges having jurisdiction as hereinafter provided, ’

appoint afirst 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 ofthe County Auditor.
. .

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The County Auditor shall prepare alist ofthe number ofdeputies 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 ofmore 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 ofthe persons named, the positions sought to be filled and the reasonableness ofthe salaries requested.
. , noassistant 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) ofthe County Civil Service Act. See Pfeffer v. Mahnke, 260S.W. 1031(Tex. Comm. App. 1924). The rezning assistants would not be excepted, for responsibilities oftheir positions are derivative ofthe duties ofthe county auditor. See Green v. Stewart, supra. - In addition, in our opinion noassistant county auditore who are within the scope ofarticle 1650are subject to the County Civil Service Act. Article 1650was 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 ofthe 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 ofthe body ofthe former and concurrently with its amendment. Furthermore, since both statutes are in effect, the more particular provisions ofarticle 1650must control over article 2372h-6, for the latter applies to county employees in general. Forwood v. Taylor, 214S.W. 2d 282 (Tex. Sup. 1948); State v. Balli, 190S.W. 2d 71(Tex. Sup. 1944)
. Aseistant County Auditors are therefore not within the application ofArticle 237211-6, the County Civil Service Act. Attorney General Opinion M-1088 (1972) is overruled to the extent it conflicts.

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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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