. . 

The Attorney General of Texas 

March 27, 1978 

JOHN L. HILL 

Attorney General 

Honorable Bill M. White 

Criminal District Attorney 

Bexar County Courthouse 

San Antonio, Texas 78205 

Dear Mr. White: 

Opinion No. H- 114 4 

Re: Whether deputy county clerks 

are covered by county civil service. 

You have requested our opinion concerning the application of the 

County Civil Service Act, article 237231-6, V.T.C.S., to deputy county clerks. 

You have asked whether such deputy clerks are employees within the terms of 

the ,Act. 

Section l(3) of article 2372h-6 provides: 

“Employee” means any person who obtains his position 

bv aooointment and who is not authorized bv statute to 

” . . 

perform governmental functions in his “own ri& 

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). 

In Donges v. Beall, 41 S.W.2d 531 (Tex. Civ. App. - Ft. Worth 1931, writ ref’d), 

the court held that deputy county clerks were public officers within the 

constitutional limitation of terms of office. If that holding remained the law, 

it would compel a negative answer to your question. However, in Green v. 

Stewart, 516 S.W.2d 133 (Tex. 1974), the Supreme Court of Texas stated: 

It is our opinion that the decision of this court in 

Aldine Independent School District v. Standley, m, 

and our refusal of the aoolication for writ of error in 

Dunbar v. Brazoria. sum&, impliedly overruled Donges 

v. Beall, supra. It is our opinion that the rule of Aldine 

and Dunbar is the better one, and also that the 

Legislature intended to follow the rule of those cases 

in defining an employee in the Civil Service Act. 

p. 4650 
Honorable Bill M. White - Page 2 (R-1144) 

& at 136. The Court held that deputy tax assessor-collectors act “in the right of 

the tax assessor+ollector rather than in their own right.” rd, at 135. 

The statement in Green v. Stewart concerning Donges v. Beall provides a 

strong implication that the Texas Supreme Court would hold deputy county clerks 

to constitute employees under the Civil Service Act. This implication is butressed 

by article 1938, V.T.C.S., which provides for the appointment of deputy county 

clerks and states that such deputies “shall act in the name of their principal.. . .” 

Furthermore, article 2.22, V.T.C.C.P., which provides that a deputy clerk may 

perform the duties imposed upon his principal, is similar to language in article 

7252, V.T.C.S., which was relied upon by the Supreme Court in Green v. Stewart. 

On the basis of its opinion in Green v. Stewart, in our opinion the Texas Supreme 

Court would hold that deputy county clerks act in the right of the county clerk and 

are therefore employees within the County Civil Service Act. See Huntress v. 

State, 88 S.W.2d 636 (Tex. Civ. App. - San Antonio 1935, writ dism’c This was the 

xof this office in M-1088 (1972), that aspect of which has not been overruled. 

See Attorney General Opinions H-985 (1977), H-619 (1975). 

We are aware that this office has ruled that deputy county clerks may take 

acknowledgments without naming their principals. Attorney General Opinion O5496-A (1944). We are not persuaded that the ruling conflicts with our decision 

herein, since O-5496-A dealt with a very limited ministerial duty, was issued long 

before the enactment of article 2372h-6, and relied in part on Donges v. Beall. 

Similarly, we do not find the unreported opinion in Spanihel v. Turrentine, No. 

71-H-1340 (U.S. Dist. Ct., S.D. Tex., 1973), to provide a sufficient basis upon which 

to base another conclusion. The opinion was written before Green v. Stewart, did 

not mention article 2372h-6, and relied upon article 2372h, the application of which 

has been clearly limited by the subsequent enactment of article 2376h-6. In 

addition, much of the discussion of the control of the county clerk over his deputies 

directly supports our decision that such deputies act in the right of their principal. 

SUMMARY 

Deputy county clerks are employees within the scope of the 

County Civil Service Act, article 2372h-6. 

p. 4651 
. 

Honorable Bill M. White - Page 3 (H-1144) 

APPROVED: 

DAVID M. KENDALL, First Assidant 

&d 

C. ROBERT HEATH, Chairman 

Opinion Committee 

jst 

p. 4652