ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

September 1,2004 

The Honorable Rene Guerra 

Hidalgo County Criminal District Attorney 

100 North Closner, Room 303 

Edinburg, Texas 78539 

Opinion No. GA-0243 

Re: Whether Hidalgo County deputy district 

clerks are subject to the provisions of the 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 it may 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 a county civil service system to include county employees 

with certain exceptions not pertinent here. See TEX. LOC. GOV’T CODE ANN. 8 158.002 (Vernon 

1999). A county civil service system may be created by order of the commissioners court or by an 

election called for that purpose. See id. 55 1X003-,004. When a county civil service system has 

been created under subchapter A, the county commissioners court “shall appoint three persons to 

serve as the 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 C rim&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 a county civil service 

plan. An “employee” under the subchapter is 

a person who obtains a position by appointment and who is not 

authorized by statute to perform 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 of persons exercising discretionary governmental functions in their own right 

does not apply, however, if the civil service commission promulgates a rule to include such persons. 

See TEX. Lot. GOV’T CODE ANN. $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 a county 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 to the selection of county 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 to their deputies. See TEX. GOV’T CODE ANN. $5 5 1.301-,322 (Vernon 1998 

& Supp. 2004). Generally, a district clerk appoints deputy district clerks. See id. 5 51.309(a) 

(Vernon 1998)’ The employment of deputy clerks and assistants in Hidalgo, Jefferson, and Nueces 

Counties is specifically governed by section 5 1.3 16 of 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. If a majority of the judges 

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 as provided 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 of the general fund or the officers’ salary fund of the county. 

The salary of a court clerk, index clerk, or clerk handling the jury 

shall be paid out of the general fund or the jury fund. 

Id. § 5 1.316(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 of persons subject to the plan 

“cannot be terminated without notice and a hearing at which 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 a person 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, at 4. Section 158.002 states that counties with more than 200,000 

in population may create a county civil service system “to include all the employees of the county,” 

with certain exceptions. TEX. Lot. GOV’T CODE ANN. 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 a civil 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 of their principal and did not address whether deputy district clerk’s 

are employees of the county. See id. at 2. 

In section 158.001(3) of the Local Government Code, “department” is defined to include a 

district office or officer. See TEX. LOC. GOV’T CODE ANN. 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 of the 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 at the pleasure of the 

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. 

‘Attorney General Opinion M-10X8 has been overruled in part by subsequent opinions from this &ice. See 

Tex. Att’y Gen. Op. Nos. H-619 (1975) at 2-4 (determinin g that assistant county purchasing agents are subject to civil 

service statutes, but not adult probation officers and assistant county auditors); H-985 (1977) at 3 (determining that 

deputy sheriffs were not subject to the then-existing civil service statutes). 
The Honorable RenC Guerra - Page 5 (GA-0243) 

In Clark, the court of appeals resolved the conflict between a statute authorizing at-will 

employment of a court coordinator and the statutes creating county civil service systems by applying 

sections 3 11.025 and 3 11.026 the Code Construction Act. See id. at 168-69. Under section 3 11.025 

ofthe Code Construction Act, when statutes enacted at the same or different sessions irreconcilably 

conflict, the later-enacted statute prevails. See TEX. GOV’T CODE ANN. 5 311.025 (Vernon 1998). 

However, when a special or local provision irreconcilably conflicts with a general provision, section 

3 11.026 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. 5 3 11.026(b). The court of appeals in Clurkdetennined that the statute creating at-will 

employment should prevail over the general civil service statutes under both sections 3 11.025 and 

3 11.026 of the 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 a county civil service system. See Clark, 787 S.W.2d at 168-69. 

Here, section 5 1.316(b) ofthe Government Code, applicable only to the deputy district clerks 

and assistants in three counties, is special or local in nature. The legislature expressly designated 

a predecessor statute that applied only to certain counties within a specified population bracket as 

a special law. See Act of May 29, 1939,46th Leg., R.S., ch. 8, § 1, 1939 Tex. Spec. Laws 742,742- 

43. Therefore, under section 3 11.026(b) of the Code Construction Act, section 5 1.3 16 will 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’T CODE ANN. 5 3 11.026(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 of May 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 of the 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 of Texas, Inc. v. Rylandq, which determined 

that general legislative statements that no substantive change is intended by a recodification 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 it enacted section 5 1.3 16. 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 to the 

last preceding Federal Census, the District Clerk may make written 

application to the District Judges of said county for the appointment 

of assistants and/or deputies and the salaries to be paid same, setting 

forth the number of assistants and/ or deputies sought to be appointed 

and the salary to be paid each, such salaries to be not more than 

allowed by law in Senate Bill 5, Acts of the Forty-fourth Legislature, 

Second Called Session, and amendments thereto. Said application 

shall be accompanied by a statement showing the probable receipts 

and disbursements of said office, and shall be presented to the 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 in the minutes of the 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 of the 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, as per 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 the jury 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 as may be assigned to them by the 

District Clerk and provided for by law, and all of said assistants shall 

take the oath of office for faithful performance of duty. The District 

Clerk shall have the right to discontinue the services of any assistants 

employed in accordance with the provisions of this Article, but no 

assistant shall be employed except in the 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, a necessity 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 by Act 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 a majority of the judges 

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 as provided 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 of the general fund or the officers’ salary fund of the county. 

The salary of a court clerk, index clerk, or clerk handling the jury 

shall be paid out of the general fund or the jury fund. 

TEX. GOV’T CODE ANN. 5 5 1.136 (Vernon 1998). By changing the statute horn a population bracket 

special law to a law 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 a general law applies broadly does not by itself manifest an intent to 

repeal or obviate inconsistent special or local provisions. If that were the case, then later-enacted 

general laws would always prevail over conflicting special or local laws, and section 3 11.026(b) 

would be superfluous. An example of a general statute that was manifestly intended to prevail over 

a special or local law is discussed in Harris 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 of the Water Code. See 

Harris County Water Control, 59 S.W.3d at 337-38. The court so held because the statute enacting 

the pertinent provision in the Tax Code contained an express 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 the 
The Honorable RenC Guerra - Page 8 (GA-0243) 

predecessor to chapter 158 of the Local Government Code does not contain a similar manifestation 

of intent that it is to 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 at the will of the 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 of intent that 

it do so. See Tex. Att’y Gen. LO-96-100, at 4. 

Here, the general provisions of chapter 158 of the Local Government Code do not reveal an 

intent to prevail over a special or local law such as the specific provision of at-will employment of 

Hidalgo deputy district clerks in section 5 1.3 16 of the 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 to those 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 CODE ANN. 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