### ATTORNEY GENERAL OF 

### TEXAS

GREG ABBOTT

September 1,2004

The Honorable Rene Guerra Hidalgo County Criminal District Attorney 100North Closner, Room 303 Edinburg, Texas 78539 Opinion No. GA-0243

Re: Whether Hidalgo County deputy district clerks are subject to the provisions ofthe Hidalgo County civil service plan, and if not, whether the Hidalgo County commissioners court may amend the civil service plan to include deputy district clerks (RQ-0196-GA)

Dear Mr. Guerra:

You ask (1) whether Hidalgo County deputy district clerks are employees subject to the provisions of the Hidalgo County civil service plan, and if not, (2) whether the county commissioners court can amend the plan to specifically include deputy district clerks as plan participants.’ You inform us that the Hidalgo County district clerk terminated the employment of several deputy district clerks. The former deputy district clerks sought an administrative hearing before the Hidalgo County Civil Service Commissjon (the “Commission”) to challenge the district clerk’s actions. The Commission questions whether the deputy district clerks are included in the county’s civil service plan. The county commissioners court has inquired whether itmay amend the county’s civil service plan to include deputy district clerks. See Request Letter, supra note 1, at 1.
Chapter 158, subchapter A of the Local Government Code authorizes counties with a population of 200,000 or more to create acounty civil service system to include county employees with certain exceptions not pertinent here. See TEX.LOC.GOV’T CODEANN. 8 158.002 (Vernon 1999). A county civil service system may be created by order ofthe commissioners court orby an election called for that purpose. See id. 55 1X003-,004. When acounty civil service system has been created under subchapter A, the county commissioners court “shall appoint three persons to
serve asthe members ofthe civil service commission that administers the system.” Id. 5 158.008(a) (Vernon Supp. 2004).

‘See Letter from Honorable Rent Ciuem, Hidalgo County Crim&d District Attorney, to Honorable Greg Abbott, TexasAttomeyGeneral(Mar. 11,2004) (onfdewithOpinionCommittee, aim avoilableatwww.oag.state.tx.us) [hereinafter Request Letter].The Honorable Rene Guerra - Page 2 (GA-0243)

By defining an “employee,” subchapter A delineates who is subject to acounty civil service plan. An “employee” under the subchapter is

a person who obtains a position by appointment and who is not authorized by statute toperform governmental functions involving an exercise of discretion in the person’s own right, unless the person is included by a local civil service rule adopted under the procedures outlined in Section 158.009[.]

Zd. 9 158.001(2) (Vernon 1999). The first part of the definition includes employees who hold appointive positions, but excludes “one who (a) performs governmental functions, (b) in his own right, (c) involving some exercise of discretion.” Green v. Stewart, 516 S.W.2d 133, 135 (Tex. 1974). The exclusion ofpersons exercising discretionary governmental functions intheir own right does not apply, however, ifthe civil service commission promulgates arule to include such persons. See TEX.Lot. GOV’TCODEANN. $5 158.001(2), .009(a) (Vernon 1999).
Chapter 158, subchapter A, defines a“department ” as “a county, district, or precinct office

or officer, agency, or board that has jurisdiction and control of the performance of employees’ official duties.” Id. 5 158.001(3). The subchapter generally permits the head of a“department ” to
assume responsibility for selecting all department employees. See id. 3 158.010(a). However, a county’s civil service commission is authorized, with certain exceptions not pertinent here, to adopt rules regarding:

(1) the definition of acounty employee;

(2) selection and classification of county employees;

(3) competitive examinations;
(4) promotions, seniority, and tenure;
(5) layoffs and dismissals;

(6) disciplinary actions;
(7) grievance procedures; and

(8) other matters relating tothe selection ofcounty employees and the procedural and substantive rights, advancement, benefits, and working conditions of county employees.

Id. 5 158.009(a).The Honorable Rent Guerra - Page 3 (GA-0243)

Chapter 51, subchapter D of the Government Code generally prescribes district clerks’ authority with respect totheir deputies. See TEX.GOV’TCODEANN. $5 51.301-,322 (Vernon 1998 & Supp. 2004). Generally, a district clerk appoints deputy district clerks. See id. 5 51.309(a) (Vernon 1998)’ The employment ofdeputy clerks and assistants inHidalgo, Jefferson, and Nueces Counties is specifically governed by section 51.316of the Government Code:

(a) In Hidalgo, Jefferson, and Nueces counties, the district clerk may apply in writing to the district judges in the county to appoint a deputy district clerk or an assistant. The application must state the number of deputies or assistants to be appointed and the probable receipts and disbursements of the office. Ifamajority of thejudges approve the appointment, they shall certify the list to the commissioners court. The application and the order approving the application must be recorded in the minutes of the district court.
(b) A deputy clerk or assistant appointed under this section shall perform the duties required by the district clerk and serves at the pleasure ofthe district clerk. A deputy clerk orassistant may not be employed except asprovided by this section.
(c) An assistant appointed under this section must take the oath prescribed for officers of this state.
(d) The salary of an assistant appointed under this section shall be paid out ofthe general fund orthe officers’ salary fund ofthe county. The salary of a court clerk, index clerk, or clerk handling the jury shall be paid out of the general fund or thejury fund.

Id. § 51.316(a)-(d) (emphasis added).

You state that the Hidalgo County civil service commission rules define an “employee” as

“anyperson employed by the County and/or the [Hidalgo Drainage] District.” Request Letter, supra note 1,at 3.’ You further state that the rules provide that employment ofpersons subject to the plan “cannot be terminated without notice and ahearing atwhich the employer must demonstrate cause for termination.” Id. at 2. You suggest that there is tension between chapter 158 of the Local Government Code, which authorizes a county civil service plan, and section 51.316(b) of the

‘In other contexts, two courts have stated that the district clerk controls the hiring and firing of deputy clerks. See County v. Louvier,9.56 S.W.2d 106, 110 n.8 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (concerning governmental and official immunity); Sfnte v. Hardy, 769 S.W.2d 353, 355 (Houston [l” Dist.] 1989, no wit) (concerning grievance procedures in article 237231.12, the predecessor to chapter 160 ofthe Local Government Code).

‘See also HIDALGO COUNTY, TEXAS,CML SERVICE COMM’N RULES, at 7, available ~lt http:Nwww.co.hidalgo.tx.us/docs/rules.pdf.The Honorable Rem? Guerra - Page 4 (GA-0243)

Government Code, which provides that deputies in Hidalgo County serve at the pleasure of the district clerk. See id. at 3.

A threshold issue is whether deputy district clerks may be considered county employees. Under chapter 158 of the Local Government Code, whether aperson is subject to the county civil service system depends primarily on whether the person is an employee as defined in that chapter. See Tex. Att’y Gen. LO-92-048, at4. Section 158.002 states that counties with more than 200,000 inpopulation may create acounty civil service system “to include all the employees ofthe county,” with certain exceptions. TEX.Lot. GOV’T CODEANN. 5 158.002 (Vernon 1999). Therefore, the definition of “employee” in section 158.001 implicitly requires that the person be an employee of the county. A 1972 opinion from this office determined that all deputies of county officials, including deputy district clerks, are employees subject to acivil service system. See Tex. Att’y Gen. Op. No. M-1088 (1972) at 3.4 However, that opinion focused solely on the fact that deputies exercise authority in the right oftheir principal and did not address whether deputy district clerk’s
are employees of the county. See id. at 2.

In section 158.001(3) ofthe Local Government Code, “department ” is defined to include a district office or officer. See TEX.LOC.GOV’TCODEANN.5 158.001(3) (Vernon 1999). The plain language of the statute is sufficiently broad to include employees of the district clerk’s office. Moreover, the commissioners court has authority over “such matters as hours of work, vacations, holidays, sick leave, compensation,” and similar employee matters concerning the district clerk’s office. Stutev. Hardy, 769 S.W.2d 353,355 (Houston [lstDist.] 1989, no writ). Comparewith Tex. Att’y Gen. Op. No. JC-0254 (2000) at 5 (determining that community supervision and corrections department employees, selected and paid by judicial district, are not county employees). Consequently, we conclude that employees ofthe district clerk’s office may be considered county employees for purposes of chapter 158.

Your specific question is whether county civil service protection may be reconciled with section 51.316(b) of the Government Code, which provides that deputy district clerks serve at the district clerk’s pleasure. Similar statutes providing that a~ particular employee “serves at the pleasure” of the appointing authority have been interpreted to mean that the employee “may be removed without cause, and without notice and hearing.” Clark v. Young, 787 S.W.2d 166, 168 (Tex. App.-Fort Worth 1990, writ denied); see also Abbott Y.Pollock, 946 S.W.2d 513, 516-17 (Tex. App.-Austin 1997, writ denied) (provision that “deputy sheriffs ‘serve atthe pleasure ofthe sheriff ” created an at-will relationship (citation omitted)). A statute providing for at-will employment of an employee irreconcilably conflicts with civil service protections. See Clark, 787 S.W.2d at 168.

‘AttorneyGeneralOpinionM-10X8 hasbeenoverruledinpartbysubsequentopinionsfromthis&ice. See Tex. Att’yGen.Op.Nos.H-619(1975)at2-4(determinin gthatassistantcountypurchasingagentsaresubjecttocivil servicestatutes,butnotadultprobationofficersandassistantcountyauditors);H-985(1977)at3(determiningthat deputysheriffswerenotsubjecttothethen-existingcivilservicestatutes).The Honorable RenC Guerra - Page 5 (GA-0243)

In Clark, the court of appeals resolved the conflict between a statute authorizing at-will employment ofacourt coordinator and the statutes creating county civil service systems by applying sections 311.025 and 311.026 the Code Construction Act. See id. at 168-69. Under section 311.025 ofthe Code Construction Act, when statutes enacted atthe same ordifferent sessions irreconcilably conflict, the later-enacted statute prevails. See TEX.GOV’T CODEANN. 5 311.025 (Vernon 1998). However, when aspecial orlocal provision irreconcilably conflicts with ageneral provision, section 311.026 directs that the special provision prevails as an exception to the general provision, “unless the general provision is the later enactment and the manifest intent is that the general provision prevail.” Id. 5311.026(b). The court ofappeals in Clurkdetennined that the statute creating at-will employment should prevail over the general civil service statutes under both sections 311.025 and 311.026 ofthe Code Construction Act because (1) the at-will statute was the later enacted act, and (2)regardless ofwhich statute was general and which specific, neither manifested anintent that court coordinators were to be subject to acounty civil service system. See Clark, 787 S.W.2d at 168-69.

Here, section 51.316(b) ofthe Government Code, applicable only tothe deputy district clerks and assistants in three counties, is special or local in nature. The legislature expressly designated

apredecessor statute that applied only to certain counties within a specified population bracket as
aspecial law. See Act ofMay 29, 1939,46th Leg., R.S., ch. 8, § 1, 1939 Tex. Spec. Laws 742,742- 43. Therefore, under section 311.026(b) ofthe Code Construction Act, section 51.316will prevail

as an exception to irreconcilably conflicting general laws unless the general law is (1)more recently enacted and (2) manifestly intended to prevail. See TEX.GOV’TCODEANN. 5311.026(b) (Vernon 1998). Seealso HorizonKMSHealthcare Corp. v.Auld, 34 S.W.3d 887,901 (Tex. 2000) (applying “traditional statutory construction principle that the more specific statute controls over the more general”).
Determining which is the more recently enacted legislation, section 51.316(b) of the Government Code or the civil service statutes in chapter 158 of the Local Government Code, is somewhat problematic. The general provisions for a county civil service system, including the definition of“employee,” were enacted in 1971. See Act ofMay 14, 1971,62d Leg., RX, ch. 262, $$ 1-14, 1971 Tex. Gen. Laws 1151, 1151-54. The most recent legislative enactment concerning section 51.316 ofthe Government Code is its codification into the Government Code in 1985. See ActofMay17,1985,69thLeg.,R.S.,ch.480,~1,sec.51.316,1985Tex.Gen.Laws1720,1982-83. However, section 27 of the 1985 act expressly states that the codification was intended as nonsubstantive. The court in Clarkdisregarded nonsubstantive codifications when determining the latest expression of legislative intent. See Clark, 787 S.W.2d at 168-69. However, Clark predated the Texas Supreme Court’s opinion in Fleming Foods ofTexas, Inc. v.Rylandq, which determined that general legislative statements that no substantive change isintended by arecodification will not justify disregarding clear, specific and unambiguous language in the recodification. See Fleming Foods of Tex., Inc. v.Rylander, 6 S.W.3d 278,284-85 (Tex. 1999).

The legislature did more than codify existing law when itenacted section 51.316. The statute it replaced provided:The Honorable Rene Guerra - Page 6 (GA-0243)

(h-2) In any county of this State with a population of two hundred fifty thousand (250,000) inhabitants and over and less than three hundred twenty-five thousand (325,000) inhabitants, according tothe last preceding Federal Census, the District Clerk may make written application to the District Judges of said county for the appointment ofassistants and/or deputies and the salaries tobe paid same, setting forth the number of assistants and/ ordeputies sought tobe appointed and the salary to be paid each, such salaries to be not more than allowed by law in Senate Bill 5,Acts ofthe Forty-fourth Legislature, Second Called Session, and amendments thereto. Said application shall be accompanied by a statement showing the probable receipts and disbursements ofsaid office, and shall bepresented tothe District Judges, who shall then carefully consider same; and, if, after such consideration, a majority of the District Judges shall approve the appointments sought to be made, and shall also approve the salary to be paid each, they shall certify said list to the Commissioners’ Court of said county; and said application and the order of the District Judges thereon shall be recorded inthe minutes ofthe District Court.

The Commissioners’ Court shall thereupon order the amount approved to be paid from the General Fund, officers’ salary fund, or any other fund of the county, as herein provided, upon the performance ofthe services required, and said Commissioners’ Court shall appropriate adequate funds for that purpose. All assistants to the District Clerk shall be paid from the General Fund of the county
or the Officers’s Salary Fund, asper the order ofthe Commissioners’ Court, except as herein provided; and be it further provided that the Commissioners’ Court may authorize that the court clerks, the index clerk, and the clerk handling thejury in each such county can be paid either from the General Fund or the Jury Fund of said county.

The deputies appointed by the District Clerk shall be authorized to discharge such duties asmay be assigned tothem by the District Clerk and provided for by law, and allof said assistants shall take the oath of office for faithful performance of duty. The District Clerk shall have the right to discontinue the services ofany assistants employed in accordance with the provisions of this Article, but no assistant shall be employed except inthe manner herein provided. In like manner, the Judges of the District Court may authorize the appointment of additional assistants when, in the judgment of the District Clerk, anecessity exists therefor.The Honorable Rene Guerra - Page 7 (GA-0243)

Act ofMay 29, 1939,46th Leg., R.S., ch. 8, § 1, 1939 Tex. Spec. Laws 742,742-43 (former article 3912e-(h-2), Revised Civil Statutes), repealed byAct ofMay 17, 1985,69th Leg., R.S., ch. 480, 5 26, 1985 Tex. Gen. Laws 1720,2049. Section 51.316 now provides:

(a)In Hidalgo, Jefferson, and Nueces counties, the district clerk may apply in writing to the district judges in the county to appoint a deputy district clerk or an assistant. The application must state the number of deputies or assistants to be appointed and the probable receipts and disbursements of the office. If amajority of thejudges approve the appointment, they shall certify the list to the commissioners court. The application and the order approving the application must be recorded in the minutes of the district court.
(b) A deputy clerk or assistant appointed under this section shall perform the duties required by the district clerk and serves at the pleasure of the district clerk. A deputy clerk or assistant may not be employed except asprovided by this section.
(c) An assistant appointed under this section must take the oath prescribed for officers of this state.
(d) The salary of an assistant appointed under this section shall be paid out ofthe general fund orthe officers’ salary fund ofthe county. The salary of a court clerk, index clerk, or clerk handling the jury shall be paid out of the general fund or thejury fund.

TEX.GOV’TCODEANN.551.136 (Vernon 1998). By changing the statute horn apopulation bracket special law to alaw applicable to three specific counties, and revising the terms of employment and payment of salary, the legislature expressed a specific intent that deputy district clerks of those counties serve at the pleasure of the district clerk.
Additionally, even if the civil service statutes are considered the more recently enacted legislation, the mere fact that ageneral law applies broadly does not by itself manifest an intent to repeal or obviate inconsistent special or local provisions. Ifthat were the case, then later-enacted general laws would always prevail over conflicting special or local laws, and section 311.026(b) would be superfluous. An example ofageneral statute that was manifestly intended to prevail over
aspecial or local law is discussed inHarris County Water Control &Improvement District v.Duke, 59 S.W.3d 333 (Tex. App.-Houston [lst Dist.] 2001, no pet.). In that case, a court of appeals determined that the general provisions of the Tax Code concerning the collection of attorney fees

were manifestly intended to prevail over earlier-enacted special provisions ofthe Water Code. See Harris County Water Control, 59 S.W.3d at 337-38. The court soheld because the statute enacting the pertinent provision inthe Tax Code contained anexpress proviso repealing inconsistent general, local, and special laws to the extent of conflict. See id. at 338 (citing Act of May [26], 1979, 66th Leg., R.S., ch. 841, sec. 6, 1979 Tex. Gen. Laws 2217, 2330). The 1971 legislation enacting theThe Honorable RenC Guerra - Page 8 (GA-0243)

predecessor to chapter 158 ofthe Local Government Code does not contain asimilar manifestation ofintent that itisto prevail over special or local statutes providing for at-will employment. See Act ofMay 14,1971,62dLeg.,R,S.,ch. 262,197l Tex. Gen. Laws 1151,1151-54.

In contrast, this office has previously determined that a 1989 amendment to the civil service statutes did not prevail over an earlier enacted statute, which provided that the personnel of the county attorney’s office serve atthe will ofthe county attorney. See Tex. Att’y Gen. LO-96-100, at 4. In 1989, section 158.001(2) was amended to allow county civil service commissions to expand the definition of employee. See Act of May22, 1989,7lst Leg., R.S., ch. 881, $5 1,3, 1989 Tex. Gen. Laws 3879,3879-80. This office determined that the 1989 amendment was a general statute and did not prevail over the earlier specific statute because there was no manifestation ofintent that it do so. See Tex. Att’y Gen. LO-96-100, at 4.

Here, the general provisions ofchapter 158 ofthe Local Government Code do not reveal an intent to prevail over aspecial or local law such as the specific provision of at-will employment of Hidalgo deputy district clerks in section 51.316ofthe Government Code. The answer to your first question is that Hidalgo County deputy district clerks are not employees included in the Hidalgo County civil service plan.

In answer to your second question, the Hidalgo County commissioners court cannot include deputy district clerks in the county civil service plan by amending the plan’s definition of an employee. A commissioners court’s authority is limited tothose powers expressly conferred by the Texas Constitution or statutes or necessarily implied therefrom. See Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). A county commissioners court has no authority to change employment that is statutorily terminable at will to terminable for cause only. See Garcia v.Reeves County, 32 F.3d 200, 203 (5th Cir. 1994); Abbott, 946 S.W.2d at 517. Moreover, the Local Government Code gives the county civil service commission, not the commissioners court, authority to adopt and amend plan rules. See TEX.Lot. GOV’T CODEANN. 5 158.009(a)(l) (Vernon 1999). And section 158.009(a)(l) authorizes the civil service commission to expand the definition of employee only to include employees who would otherwise be excluded because they exercise governmental functions in their own right. Consequently, neither the commissioners court nor the civil service commission may amend the plan to include deputy district clerks.The Honorable Rene Guerra - Page 9 (GA-0243)



### SUMMARY
Hidalgo County deputy district clerks are not subject to the provisions of the Hidalgo County civil service plan. The Hidalgo County commissioners court cannot amend the civil service plan to include deputy district clerks.
Very truly yours,

&A* Attorney General of Texas

BARRY R. MCBEE First Assistant Attorney General

DON R. WILLETT Deputy Attorney General for Legal Counsel

NANCY S. FULLER Chair, Opinion Committee

William A. Hill Assistant Attorney General, Opinion Committee