Untitled Texas Attorney General Opinion ( 2000 )

OFPKE OF THE ATTORNEY GENER*L STATE OF TEXAS
JOHN CORNYN
July 18,200O
The Honorable Tim Curry Opinion No. JC-0254
Tarrant County Criminal District Attorney
Justice Center Re: Whether, under section 158.007 of the Local
401 West Belknap Government Code, a county may include
Fort Worth, Texas 76196-0201 community-supervision-and-corrections-
department employees in an expanded civil-
service system (RQ-0186-K)
Dear Mr. Curry:
Under section 158.007 of the Local Government Code, a county whose population exceeds
800,000 that has created a civil-service system under chapter 158, subchapter A of that code may,
if the voters approve, expand its civil-service system to “cover. the adult and juvenile probation
officers and their assistants.” TEX. Lot. GOV’T CODE ANN. 5 158.007(a) (Vernon 1999). Judicial
and attorney general opinions issued before section 158.007 was added to the Local Government
Code conclude that adult-probation officers, who are currently known as community-supervision-
and-corrections-department employees, see generally TEX. GOV’T CODE ANN. ch. 76 (Vernon 1998
& Supp. 2000) (entitled “Community Supervision and Corrections Departments”), are not county
employees and may not be included in a civil-service system. See id. 5 76.004(b) (Vernon 1998)
(requiring community-supervision-and-corrections-department director to appoint officers and
employees); Shore v. Howard, 414 F. Supp. 379,390 (N.D. Tex. 1976); Tex. Att’y Gen. Op. Nos.
H-672 (1975) at 1; H-619 (1975) at 2-3; seealso Randallv. Jeff erson County, 771 F. Supp. 173,174
(E.D. Tex. 1991) (stating that county was not adult-probation officer’s employer), uff’d in part, 966
F.2d 1449 (5th Cir. 1992); Tex. Att’y Gen. LO-97-090, at 1 ( same). You ask whether, given the
rationale of these judicial and attorney general opinions, a county may, consistently with section
158.007 ofthe Local Government Code, include in its civil-service system community-supervision-
and-corrections-department employees. See Letter from Honorable Tim Curry, Tarrant County
Criminal District Attorney, to Honorable John Comyn, Texas Attorney General (Feb. 7,200O) (on
file with Opinion Committee) [hereinafter “Request Letter”]. We conclude that it may not.
Your question leads us to assume that Tarrant County, which has a population over 800,000,
see 1 BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE,1990 CENSUS OF POPULATION,General
Population Characteristics: Texas 4 (1992) (population: 1,170,103), has implemented a civil-service
system under chapter 158, subchapter A of the Local Government Code. You state that Tarrant
County voters approved, in accordance with section 158.007, aballot measure to expand the system.
Request Letter, supra, at 2; see TEX. Lot. GOV’T CODEANN. 5 158.007 (Vernon 1999). Thus, you
The Honorable Tim Curry - Page 2 (X-0254)
continue, the voters “apparently” extended “the protection of the Tarrant County Civil Service Act
to officers of the Tarrant County Community Supervision and Corrections Department.” Request
Letter, supra, at 2. Nevertheless, you question the legality of the extension. Id. at 1.
A county whose population exceeds 200,000 may establish a county civil-service system to
govern matters relating to “all the employees of the county who are not” expressly exempted from
the system by statute or by judicial decision. TEX. Lot. GOV’T CODE ANN. $9 158.002, ,003, ,004
(Vernon 1999). Ifa civil-service system is created, the county commissioners court appoints a three-
member civil-service commission, which regulates the terms of employment of county employees:
Except as provided by Section 158.010, the commission shall
adopt, publish, and enforce 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). Section 158.010, cited in section 158.009(a), permits the head of a department
included within the county’s civil-service system to assume responsibility to select all department
employees. See id. 5 158.010(a).
Of those counties that have implemented a civil-service system, a county with a population
greater than 800,000 may hold an election to determine whether to expand its system to include
additional employees:
In a county that has a population of more than 800,000 and a
civil service system created under this subchapter, the qualified voters
of the county, voting at an election called for that purpose, may
determine whether the system will be dissolved or expanded to cover
The Honorable Tim Curry - Page 3 (JC-0254)
the employees, except licensed attorneys, of the office of district or
criminal district attorney, the adult and juvenile probation officers
and their assistants, personnel in the county auditor’s office including
all assistant county auditors, and all other employees of the county
not included in the coverage of the system and not specifically
exempted by Section 158.013 or Subchapter B.
Id. lj 158.007(a). Section 158.001 defines an “employee” as
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; or aperson included in the coverage of
a county civil service system as the result of an election held under
Section 158.007. The term does not include a person who holds an
office the term of which is limited by the constitution of this state.
Id. 8 158.001(2) (emphasis added). A “department” is “a county, district, or precinct office or
officer, agency, or board that has jurisdiction and control of the performance of employees’ official
duties.” Id. $ 158.001(3).
In general, jurisdiction of a community-supervision-and-corrections department (a “CSC
department”) is not with the county but with the local district court or courts. The legislature has
placed “wholly within the state courts the responsibility for determining the conditions of
community supervision, and the supervisionofdefendants placed on community supervision.” TEX.
CODEC&M. PROC.ANN. art. 42.12,§ 1 (Vernon Supp. 2000). In accordance with chapter 76 of the
Government Code, the district judge or judges trying criminal cases in a judicial district establish
a CSC department and employ “district personnel to conduct presentence investigations,
supervise and rehabilitate defendants placed on community supervision, enforce the conditions of
community supervision, and staff community corrections facilities.” TEX. GOV’T CODE ANN.
5 76.002(a) (Vernon 1998); see also id. 5 76.001(2) (defining “community supervision”). Because
a CSC department generally serves all courts within a judicial district, it may serve more than one
county. See id. 5 76.002(c). But see id. 5 76.002(d) (permitting Texas Board of Criminal Justice,
in certain circumstances, to allow more than one CSC department to serve judicial district that
includes more than one county). District judges appoint a director for the CSC department, who
employs “a sufficient number of officers and other employees to perform the professional and
clerical work of the department.” Id. 5 76.004.
A CSC department receives financial support both from the county or counties in the judicial
district and from the district itself. A county’s contribution to a CSC department includes “physical
facilities, equipment, and utilities” for the department’s use. Id. 5 76.008(a) (Vernon 1998). The
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district judge or judges may supplement the county’s contribution from district funds in limited
circumstances. See id. 5 76.009(a).
The judicial district served by the CSC department or the department itself is responsible to
provide employee compensation and benefits. The judicial districts served by a CSC department pay
employee salaries. See id. § 76.006(b) (Vernon Supp. 2000). The CSC department contracts with
a county served by the department to provide employee benefits. See id. 5 76.006(a). CSC-
department employees are governed by personnel policies and receive benefits “equal to” those
received by county employees. Id.
Applying statutes regarding the establishment ofa CSC department as well as a prior version
of chapter 158, subchapter A, judicial and attorney general opinions have determined that CSC-
department employees are not county employees and may not participate in a county’s civil-service
system. See Randall, 771 F. Supp. at 174; Clark v. Tarrant County, 608 F. Supp. 209,214 (N.D.
Tex. 1985) aff’d in relevantpart, rev’d inpart, 798 F.2d 736 (5th Cir. 1986); Shore, 414 F. Supp.
at 390; Tex. Att’y Gen. Op. Nos. H-672 (1975) at 1; H-619 (1975) at 2; Tex. Att’y Gen. LO-97-090,
at 1. According to Attorney General Opinion H-619, the district court’s responsibility under article
42.12 of the Code of Criminal Procedure to supervise defendants who are placed on community
supervision includes the authority to oversee the selection and dismissal of employees. See Tex.
Att’y Gen. Op. No. H-619 (1975) at 3; cf Tex. Att’y Gen. Op. No. DM-208 (1993) at 5 (concluding
that, for purposes of anti-nepotism statutes, department director, not district judge, has authority to
hire CSC-department personnel). This responsibility is inconsistent, according to Attorney General
Opinion H-619, with a civil-service commission’s authority to regulate the selection and dismissal
ofcounty employees. See Tex. Att’y Gen. Op. No. H-619 (1975) at 3; see also Tex. Att’y Gen. Op.
No. H-672 (1975) at 1 (“the control exercised by district judges over adult probation [is] inconsistent
with the authority of the Civil Service Commission concerning employees subject to the Act”); cf:
TEX. Lot. GOV’TCODEANN. $ 158.009(a) (Vernon 1999) (authorizing civil-service commission to
regulate selection and classification of, disciplinary actions against, and substantive rights and
working conditions of county employees, among other things). In Shore v. Howard a federal district
court agreed with attorney general opinions concluding that “the purposes of the probation statutes
are inconsistent with the rules regarding employment and dismissal of employees adopted under the
County Civil Service Act. The court’s responsibility for the supervision of probationers includes
these facets of employment and dismissal of probation officers.” Shore, 414 F. Supp. at 390; see
Tex. Att’y Gen. Op. Nos. H-672, H-619 (1975).
After, and perhaps as a result of, these opinions, the legislature amended the statutory
predecessor to chapter 158 in 1985 to permit a county to expand its civil-service system to include
those added under an expansion election, such as adult-probation officers. See Act ofMay 26,1985,
69th Leg., R.S., ch. 713, 1985 Tex. Gen. Laws 2510, 2510-11. The 1985 enactment added the
substance ofwhat is now section 158.007(a), permitting an election to expand a civil-service system
to include adult-probation officers, and amended the Act’s definition of “employee” to encompass,
as the definition continues to do, employees added in accordance with an expansion election. See
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id. 5s 1,2,1985 Tex. Gen. Laws 2510,2510-l 1. The issue youraiserequires us to consider whether
the 1985 legislation in fact superseded Shore and Attorney General Opinions H-672 and H-619.
In light of the statutes and opinions suggesting that CSC-department employees are not
subject to county control, chapter 158, subchapter A gives mixed messages about whether a civil-
service system may include employees other than those employed by the county. Section
158.007(a), together with section 158.001(2)‘s definition of “employee,” authorizes a county to
expand its civil-service system, in accordance with a vote of the electorate, to include community-
supervision-and-corrections-department employees. On the other hand, the purpose ofa civil-service
commission is to govern matters involving county employees only. See TEX. Lot. GOV’T CODE
ANN. 9: 158.002 (Vernon 1999) (permitting county to create civil-service system “to include all the
employees of the county”). The powers of a civil-service commission, enumerated in section
158.009(a), appear to be limited to regulation of county employees. The commission must, for
example, define the term “county employee,” see id. § 158.009(a)(l), and adopt regulations to
standardize the selection and classification of “county employees,” see id. 5 158.009(a)(2).
Because a CSC-department employee is an employee of the district court, we conclude that
a CSC-department employee is not subject to the jurisdiction of a civil-service commission and
cannot be included within an expanded civil-service system. Statutes authorizing a county district
to establish a CSC department have not been significantly amended with respect to the issue you
raise since the issuance of the judicial and attorney general opinions we have discussed. See
Randall, 771 F. Supp. at 174; Clark, 608 F. Supp. at 214; Shore, 414 F. Supp. at 390; Tex. Att’y
Gen. Op. Nos. H-672 (1975) at 1; H-619 (1975) at 2; Tex. Att’y Gen. LO-97-090, at 1. Nor did
anything in the 1985 legislation that purported to allow a county civil-service commission to include
CSC-department employees in the civil-service system subtract from a district court’s jurisdiction
of the employees. The courts within the judicial district, because they oversee the department
director, see Tex. Att’y Gen. Op. No. DM-208 (1993) at 5, continue to have complete authority over
the CSC department: hiring and tiring of employees, see TEX. GOV’T CODE ANN. art. 76.002(a)
(Vernon 1998); contracts for employee benefits, see id. 5 76.006(a) (Vernon Supp. 2000); and the
payment of employee salaries, see id. 5 76.006(b).
The rationale of Shore and the attorney general opinions cited consequently remains
persuasive. As the Shore court indicated, “judicial independence in supervising probationers called
for by the probation statutes requires” that the courts be financially and administratively independent
of“otherstate governmental entities andregulations.” Shore, 414F. Supp. at 390; accordTex. Att’y
Gen. Op. No. H-619 (1975) at 3, District courts cannot control totally “the conditions ofcommunity
supervision, and the supervision of defendants placed on community supervision,” see TEX. CODE
GRIM. PROC. ANN. art. 42.12, 5 1 (Vernon Supp. 2000) if employees must be hired, fired, or
disciplined in accordance with the civil-service rules.
A civil-service commissibn’s authority to define “a county employee,” provided in 1989, did
not increase a civil-service commission’s authority to include in the county civil-service system
persons who do not perform services for the county. See Act ofMay 22, 1989,71st Leg., R.S., ch.
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881, § 2, sec. 158.009(l), 1989 Tex. Gen. Laws 3879. This authority cannot encompass the
authority to exercise jurisdiction of CSC-department employees, whose oversight and supervision
lies solely with the state courts. See TEX. CODE GRIM. PROC. ANN. art. 41.12, 5 1 (Vernon Supp.
2000). Nor does the fact that a CSC department is to contract for employee benefits with a county
served by the department, see TEX. GOV’TCODE ANN. 5 76.006(a) (Vernon Supp. 2000), make CSC-
department employees county employees who may be subject to the county’s civil-service system.
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SUMMARY
A county may not include employees of the community-
services-and-corrections department in a civil-service system
established under chapter 158 of the Local Government Code and
expanded in accordance with section 158.007 of that Code.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVW
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee