Untitled Texas Attorney General Opinion ( 1987 )

May 15, 1987
Mr. Oliver Lewis, Jr. Opinion No. JM-698
County Auditor
Bexar County Courthouse lze: Whether n deputy sheriff who
'San Antonio, Texas 78205 is indicted for d feiony auto-
matically revokes his apyoiuimr``c
Dear Mr. Lewis:
You are concerned about the apparent conflict between xticia
2372h-8. V.T.C.S., which authorizes a sheriff's department civil
service system in counties of more than 950,000, and article 6869,
V.T.C.S., which relates to the appointment, duties, and dismissal of a
slieriff'sdeputies. When a county establishes a civil service system
under article 2372h-8, V.T.C.S., a sheriff's department civil service
commission is created. The commission
shall make, publish, and enforce rules relating
to:
(1) selection and classification of employees:
.(2) competitive examinations;
(3) promotions, seniority, and tenure;
;4) iayoffs and dismissals;
(5) disciplinary actions;
(6) grievance procedures and other procedural
and substantive rights of employees; and
(7) other matters relating to the selrccioo of
employees and their advancement, rights, benefits,
and working conditions. (Emphasis added).
V.T.C.S. art. 2372h-8. §6&i). Deputy sheriffs. who are ".aployaes"
under the definition provided in section l(3) of article 2372h-8.
V.T.C.S.. are subject to the commission's authority over selection,
dismissal. and discipline. The sheriff may, however. designate es
exempt from the civil service system the position of chief deputy,
four positions of major deputy, and additional posltions es long as
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Mr. Oliver Lewis, Jr. - Page 2 (JM-698)
the total number of exempt positions does not exceed 10. V.T.C.S.
art. 2372h;8, 98(b), (cl.
Article ti869,V.T.C.S.. provides in part:
Sheriffs shall have the power, by writing, to
appoint oEe or more deputies for their respective
counties, to concinui in office durmg the
pleasure of the sheriff, who shall have power and
authority to perform all the acts and duties of
their principals. . . . An indictment for a
felony of any aeputy sheriff appointed shall
operate a revocation of his appointment as such
depury sheriff. . . .
You ask whether article 2372h-8. V.T.C.S.. supersedes and repeals
the provision in arcicla 6869, V.T.C.S., thar: 2 deputy sheriff's
appoincmrnt is revoked upon his indictment for c felony.
Section 6(a) of article 2372h-8. V.T.C.S., quoted above,
authorizes the civil service commission to regulate the selection,
tenure, and discipline of the deputy sheriffs to whom it applies. The
civil service statute therefore substantially changes the working
relationship between the sheriff and his deputies which has tradi-
tionally existed and which is partially set out in article 6869,
V.T.C.S. Deputy sheriffs traditionally serve "during the pleasure of
cha sheriff." V.T.C.S. art. 6869. See also Irby v. Sullivan,,737
F.2d 1418 (5th Cir. 1984); Murray v. Harris, 112 S.W.Zd 1091 (Tex.
Cl". 'App. - Amuillo 1938, writ dism'd). It has been held chat deputy
sheriffs have no legal entitlement to their jobs as public employees.
Irby v. Sullivan. 737 F.2d at 1422. Article 2372h-8, V.T.C.S., gives
procedural and substantive protection to the deputies to whom it
applies. Deputies covered by article 2372h-8, V.T.C.S., do not serve
merely at the "pleasure of the sheriff."
We believe article 2372h-8. V.T.C.S., by authorizing the civil
service commissioa to "make. publish, and enforce rules relating
to . . . layoffs and dismissals," also changes the prior law providing
that a felony indictment of a deputy sheriff revokes his appointment
as deputy sheriff. The civil service statute vests in the civil
service comission an extensive oversight and authority over the
deputy's working conditions. The provisions on grievance procedures
and appeals to the court allow for full development or'the facts which
justify dismissing a deputy. The summary revocation required by
article 6869, V.T.C.S., is not consistent with the policies underlying
the civil service act. There may be erroneous indictments, and the
commission may decide whether dismissai is justified on the facts of a
particular case. See generally Attorney General Opinion H-402 (1974)
(county employee suspended when indicted; reinstated when indictments
dismissed).
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Mr. Oliver Lewis, Jr. - Page 3 (34-698)
Moreover, section 10 of article 2372h-8. V.T.C.S., provides es
follows:
lf a civil service system created under this
Act is in effect, that system applies to the
department to the exclusion of a civil service
system created under . . . (Article 2372h-6,
Vernon's Texas Civil Statutes), or any other lew.
(Emphasis added).
Section 10 indicates the legislative intent that article 2372h-8,
V.T.C.S., prevaii over other laws governing the employment rights of
employees of the sheriff's department. We do not believe that the
legislature intended article 237Lh-8, V.T.C.S., to prevail over all
other Texas statutes which apply to deputy sheriffs. See Attorney
General Opinion H-753 (1975) (civil service act did not &Tent state
age discrimination statute). However, we believe it does prevail over
the revocation provision of article 6869, V.T.C.S., which covers
essentially the same ground as section 6(a) of article 2372h-8,
V.T.C.S.
Finally, article 2372h-8, V.T.C.S., is the later enactment, and
to the extent it is inconsistent with the earlier enacted article
6869, V.T.C.S., it will prevail over it. See Acts 1981, 67th Leg.,
ch. 119, it 295 (enacting V.T.C.S. art. Zmh-8); Acts 1889, Zlst
Leg., ch. 30. at 23 (enacting predecksor of article 6669, V.T.C.S.);
Projocrs American Corp. v. Billiard. 711 S.W.Zd 386, 389 (Tex. App. -
Tyler 1986, no writ).
The provisions in article 6869. V.T.C.S., for revocation of a
deputy's appointment upon his felony indictment do not apply to
deputies subject to a civil service system established under article
2372h-8, V.T.C.S. Deputies exempted from the civil service system
pursuant to section 8(a) of article 2372h-8. V.T.C.S., remain subject
to revocation of their appointment upon indictment in accordance with
article 6869, V.T.C.S. See also V.T.C.S. art. 4413 (29aa). §8A (con-
viction of a felouy causes peace officer co lose peace officer license
issued by Commission on Law Enforcement Officer Standards end
Education).
You point out chat the Bexar County sheriff's civil service
commission has adopted rules relating to dismiesals of employees. YOU
inform us that the rules provide that "[ala employee may be dismissed
from the Sheriff's Department for just cause." The rules also state
that "cause" for a dismissal includes but is not limited to
violation of any lawful or reasonable statute.
regulation or order such as a felony . . . conduct
or action char would seriously impair job effec-
tiveqess; end conduct which has proven to be
detrimental or has an adverse effect on the
Department.
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?lr.Oliver Lewis, Jr. - Page 4 (X3-698)
This rule of the Bexar County civil service~system is similar to
that of other civil service systems which provide for suspension or
dismissal ot en employee upon indictment or commission or' a crime.
See, e.g., Abrems v. U.S. Department of the Navy. 714 F.2d 1219 i3d
Cir. 1983) (violent crime off-duty); Jankowitz V. United States, 533
F.2d 538 (U.S. Ct. Cl. 1976) (indefinite suspension without pey of
federal employer following indictment); Rooks v. State Persormel
Board, 168 Cal. Rptr. 822 (Cal. App. 3d 1980) (peace officers may be
discharged for violating laws they are employed to enforce): Chang v.
Palo6 Verde6 Estates. 159 Cal. Rptr. 630 (Cal. App. 3d 1979) (dis-
charge of fireman for drug use); Annot., 25 A.L.R. Fed. 443, 56 (cases
on discharge of civil service employee because of a criminal cunvic-
tion).
The Bexar County sheriff's department civil service commission
therefore does deal with the problems that arise when d deputy is
indicted or is alleged to have conmittrd a felony. Although the
commission's approach to the problem may cost the county more money
then the approach required by article 6869, V.T.C.S., we cannot for
that reason alone conclude that the revocation provision of article
6869, V.T.C.S., prevails over article 2372h-8. V.T.C.S.
SUMMARY
The provision of article 6869, V.T.C.S.. that
a deputy sheriff!6 appointment will be revoked by
his indictment for a felony does not apply to
deputy sheriffs subject to a civil service system
created pursuaut to article 2372h-8, V.T.C.S.
JIM MATTOX
Attorney General of Texas
JACK HlGliTOWRR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEARLEY
Special Assistant Attorney General
RICK GILPIN
Chairman. Opinion Comittre
Prtrparedby Susan L. Garrison
Assistant Attorney General
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