Judges: GREG ABBOTT, Attorney General of Texas
Filed Date: 9/27/2004
Status: Precedential
Modified Date: 7/6/2016
The Honorable Bill Hill Dallas County District Attorney Civil Division Administration Building 411 Elm Street, 5th Floor Dallas, Texas 75202
Re: Whether a civil service commission's authority under section
Dear Mr. Hill:
You ask whether a civil service commission's authority under section
158.035 (1) of the Local Government Code to adopt and enforce rules relating to the "selection . . . of employees," impermissibly intrudes upon the sheriff's authority to select assistants, as discussed in Attorney General OpinionGA-0037 .1 See Tex. Loc. Gov't Code Ann. § 158.035(1) (Vernon 1999); Tex. Att'y Gen. Op. No.GA-0037 (2003) at 3.You indicate that under the current regulations of the Dallas County Sheriff's Department's civil service commission, only current employees of the Dallas County Sheriff's Department may be appointed to positions as deputy sheriff recruits. See Request Letter, supra note 1, at 1.2 Citing Opinion
GA-0037 , you suggest that the current regulation prohibiting the appointment of nonemployees may unlawfully infringe upon the sheriff's authority. Id. at 2-3; see Tex. Att'y Gen. Op. No.GA-0037 (2003) at 3.Opinion
GA-0037 considers whether a county commissioners court may adopt a policy that restricts a sheriff's authority to select employees. See Tex. Att'y Gen. Op. No.GA-0037 (2003) at 1-2. According to the opinion, although a commissioners court has "extensive authority over the
county's budget" and may thereby limit the number of employees a sheriff may appoint and set employees' compensation, id. at 2;see also id. at 3, the commissioners court may not tell a sheriff whom to select:
An elected county officer [such as a sheriff], despite the commissioners court's control over the officer's budget, is free to select assistants of his or her "own choice." . . . An elected county officer "occupies a sphere of authority, . . . within which another officer may not interfere or usurp." . . . This "sphere of authority" consists of those duties the Texas Constitution and statutes delegate to the officer.
Id. at 3 (citations omitted); see also Tex. Loc. Gov't Code Ann. § 151.004 (Vernon 1999) (prohibiting a commissioners court from influencing "the appointment of any person to an employee position"). The opinion concludes that a commissioners court policy restricting the class of individuals from which the sheriff may appoint employees would impermissibly interfere with the sheriff's authority to appoint and could not, therefore, be adopted. See Tex. Att'y Gen. Op. No.
The elected position of county sheriff is created by article
Chapter 158, subchapter B of the Local Government Code authorizes a sheriff's department "in a county with a population of more than 500,000 [to] . . . create a civil service system." Id. § 158.032. If a commission is created in accordance with the statutory requirements, see id. § 158.033 (requiring a petition and an election to create a commission), section 158.035 provides the commission the power to "adopt, publish, and enforce rules regarding . . . selection and classification of employees . . . and . . . other matters relating to the selection of employees and the procedural and substantive rights . . . of employees."Id. § 158.035(a). In "a county with a population of 3.3 million or less," such as Dallas County, see Bureau of the Census, U.S. Dep't of Commerce, 2000 Census of Population, available at http://www.census.gov/ (population of Dallas County: 2,218,899), the sheriff may exempt certain positions from the civil service system under section 158.038:
the position of chief deputy;
four positions of major deputy;
one or more positions in the office of departmental legal counsel; and
additional positions in the department; provided, however, that the sheriff may not designate as exempt a total of more than 10 positions.
Tex. Loc. Gov't Code Ann. § 158.038(b) (Vernon Supp. 2004-05).
Given Attorney General Opinion
As a preliminary matter, we note that all of the employees appointed under chapter 85 of the Local Government Code may be subject to a civil service commission created under chapter 158, subchapter B. See Tex. Loc. Gov't Code Ann. §§ 85.003(c), .004(b), .005(a), .006 (Vernon 1999 Supp. 2004-05). In Letter Opinion 92-48, this office opined that, in accordance with a 1990 appellate court case, "where the legislature has [originally] enacted a statute subsequent to the enactment of [a] . . . civil service act which requires employees to serve at the pleasure of the appointing authority, that statute will prevail over the civil service act and the employee will not be subject to the civil service system." Tex. Att'y Gen. LO-92-48, at 3 (citingClark v. Young,
We conclude, in answer to your first question, that a civil service commission's express statutory authority under section 158.035(a)(1) to regulate employee selection is broad enough to encompass authority to effectively limit the sheriff's hiring authority. See Tex. Loc. Gov't Code Ann. § 158.035(a)(1) (Vernon 1999). Section 158.035(a)(1) plainly requires a commission to "adopt . . . and enforce rules regarding . . . selection . . . of employees." Id. Commission rules thus regulate sheriff's employees' "substantive and procedural rights to their employment." Tarrant County v. Van Sickle,
You ask second whether a civil service commission's regulatory authority over employee selection impermissibly intrudes upon the sheriff's sphere of authority. Neither Attorney General Opinion
A sheriff's authority to appoint employees is statutory, not constitutional. Article
Moreover, a 2003 appellate court opinion, Sheppard v. Thomas, suggests that a sheriff has a ministerial duty to comply with commission rules regarding employee selection, and, implicitly, that a commission's authority to regulate employee selection does not impermissibly intrude upon the sheriff's sphere of authority.See Sheppard v. Thomas,
We accordingly conclude that a civil service commission created under chapter 158, subchapter B of the Local Government Code may, under section 158.035(b)(1), limit the sheriff's authority to select assistants. The civil service commission's authority to regulate personnel selection does not unlawfully infringe upon the sheriff's authority.
A civil service commission created under chapter 158, subchapter B of the Local Government Code has express statutory authority, under section 158.035(b)(1), to limit the sheriff's authority to select assistants. The civil service commission's statutory authority to regulate personnel selection does not impermissibly intrude upon the sheriff's sphere of authority discussed in Attorney General OpinionGA-0037 (2003).
Very truly yours,
GREG ABBOTT Attorney General of Texas
BARRY MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee
Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee