Attorney General Opinion GA-0254

ATTORNEY GENERAL OF TEXAS GREG ABBOTT The Honorable Bill Hill Dallas County District Attorney Civil Division Administration Building 411 Elm Street, 5th Floor Dallas, Texas 75202 September 27,2004 Opinion No. GA-0254 Re: Whether a civil service commission’s authority under section 15&035(l) of the Local Government Code to adopt and enforce rules relating to the “selection of employees,” impermissibly intrudes upon the sheriffs authority to select assistants, as discussed in Attorney General Opinion GA-0037 (RQ-020%GA) Dear Mr. Hill: You askwhether acivil servicecommission’s authorityunder section 158035(l)oftheLocal Government Code to adopt and enforce rules relating to the “selection of employees,” impermissibly intrudes upon the sheriffs authority to select assistants, as discussed in Attorney General Opinion GA-0037.’ See TEX. LOC. GOV’T CODE ANN. 5 158.035(l) (Vernon 1999); Tex. Att’y Gen. Op. No. GA-0037 (2003) at 3. You indicate that under the current regulations ofthe Dallas County Sheriffs Department’s civil service commission, only current employees of the Dallas County Sheriffs Department may be appointed to positions as deputy sheriff recruits. See Request Letter, supra note 1, at l? Citing Opinion GA-0037, you suggest that the current regulation prohibiting the appointment of nonemployees may unlawfully infringe upon the sheriffs 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 l-2. According to the opinion, although a commissioners court has “extensive authority over the ‘See Letter from Honorable Bill Hill, Dallas County District Attorney, Civil Division, to Honorable Greg Abbott, Texas Attorney General (Apr. 5, 2004) (on tile with the opinion Committee, also avaikzble af http://www.oag.state.tx.us) [herein&k Request Letter]. *See also Telephone Conversation with Bob Schell, Chief, Civil Division, Dallas County District Attorney’s Office (June 14,2004) (contiming that the regulations were adopted by the civil service commission). The Honorable Bill Hill - Page 2 (GA-0254) 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. Lot. GOV’T CODE ANN. $ 151.004 (Vernon 1999) (prohibiting a commissioners court horn 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 sheriffs authority to appoint and could not, therefore, be adopted. See Tex. Att’y Gen. Op. No. GA- 0037 (2003) at 3. The opinion notes, however, that the sheriffs authority may be limited by statute, citing statutory nepotism prohibitions. See id. at 4; see also TEX. GOV’T CODE ANN. ch. 573 (Vernon 1994 & Supp. 2004-05). The authority of a civil service commission was not at issue in the opinion. The elected position of county sheriff is created by article V, section 23 of the Texas Constitution, which states that a sheriffs “duties, qualifications, perquisites, and fees ofoffice shall be” legislatively prescribed. TEX. CONST. art. V, $23. Chapter 85 of the Local Government Code provides a sheriffwith statutory authority to appoint deputies, reserve deputies, and other employees. Deputies, who must be appointed in writing, serve “at the pleasure ofthe sheriff.” TEX. LOC. GOV’T CODE ANN. 5 85.003(c) (Vernon 1999). Reserve deputies, whom a sheriffmay appoint if authorized by the commissioners court, likewise serve “at the discretion of the sheriff.” Id. 5 85.004(b) (Vernon Supp. 2004-05). The sheriff also may appoint guards “with the approval of the commissioners court,” see id. 5 85.005(a) (Vernon 1999), and, in a county with population of at least 210,000, a county police force, see id. 5 85.006. The commissioners court, or any member of the commissioners court, may not attempt to influence the sheriff to appoint a particular person to an employment position. See id. 5 15 1.004. Chapter 158, subchapter B of the Local Government Code authorizes a sheriffs department “in a county with a population of more than 500,000 [to] create a civil service system.” Id. 5 158.032. Ifacommission is created in accordance with the statutory requirements, see id. 4 158.033 (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. 5 158.035(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: The Honorable Bill Hill - Page 3 (GA-0254) 2,218,899), the sheriff may exempt certain positions from the civil service system under section 158.038: (1) the position of chief deputy; (2) four positions of major deputy; (3) one or more positions in the office of departmental legal counsel; and (4) additional positions in the department; provided, however, that the sheriff may not designate as exempt a total of more than 10 positions. TEX. Lot. GOV’T CODE ANN. 5 158038(b) (Vernon Supp. 2004-05). Given Attorney General Opinion GA-0037’s discussion of a sheriffs authority to select assistants and a civil service commission’s statutory authority to regulate the selection ofnonexempt employees, you ask two questions. First, you ask whether the powers that section 158.035 bestows upon a sheriffs civil service commission “include the power or authority to limit” the sheriffs hiring authority. Request Letter, supra note 1, at 1. Second, you ask whether a sheriffs sphere of authority prevents the civil service commission from limiting the sheriffs pool of candidates. See id. 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. $5 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 (citing Clark v. Young, 787 S.W.2d 166 (Tex. App.-Fort Worth 1990, writ denied)); see also id. at 4 (stating that a statute that was “originally enacted subsequent to the civil service act” must be carefully scrutinized to determine whether the employee should be excluded from the civil service system) (emphasis added). Chapter 158, subchapter B was first adopted in 1981. See Act of May 6, 1981,67th Leg., R.S., ch. 119, 1981 Tex. Gen. Laws 295,295-97. The provision requiring a sheriffs civil service commission to adopt rules relating to the “selection of employees” was in the original statute. See id. 5 6(a)(l), 1981 Tex. Gen. Laws 295,296. The sheriffhas had statutory authority to appoint deputies to serve at the sheriffs pleasure under chapter 85 and its predecessors since at least 1929. See Act effective June 11, 1929,4lst Leg., 1st C.S., ch. 113, 5 1, 1929 Tex. Gen. Laws 283,284. The provision authorizing the sheriff to appoint reserve deputies to serve at the sheriffs discretion was originally adopted in 1971. See Act ofMay24,1971,62dLeg., R.S., ch. 506, § l(c), 1971 Tex. Gen. Laws 1738,173s. Neither guards nor members of a county police force, also appointed under The Honorable Bill Hill - Page 4 (GA-0254) chapter 85, serve “at the sheriffs pleasure” or “at the sheriffs discretion.” See TEX. LOC. GOV’T CODE ANN. 5s 85.005(a), .006 (Vernon 1999). Accordingly, to the extent the sheriff has not designated them exempt under section 158.038(b), employees appointed under chapter 85 are subject to the civil service system. We conclude, in answer to your first question, that a civil service commission’s express statutory authority under section 158.035(a)(l) to regulate employee selection is broad enough to encompass authority to effectively limit the sheriffs hiring authority. See TEX. Lot. GOV’T CODE ANN. 5 158.035(a)(l)(Vemon 1999). Section 158.035(a)(l)plainlyrequires acommissionto“adopt . . . and enforce rules regarding. selection. of employees.” Id. Commission rules thus regulate sheriffs employees’ “substantive and procedural rights to their employment.” Tarrant County v. Van Sickle, 98 S.W.3d 358,363 (Tex. App.-Fort Worth 2003, pet. denied) (discussing acountycivil service system created under chapter 158, subchapter A). The sheriff may exempt certain positions horn the civil service system in accordance with section 158.038, and the sheriff accordingly may select those employees without complying with the commission’s regulations. See TEX. Lot. GOV’T CODEANN. 3 158.038@) (Vernon Supp. 2004-05). You ask second whether a civil service commission’s regulatory authority over employee selection impermissibly intrudes upon the sheriffs sphere of authority. Neither Attorney General Opinion GA-0037 nor Abbott Y. Pollock are apposite here, where we are considering the sheriffs authority vis-a-vis the civil service commission. Opinion GA-0037 applied to the authority of a sheriff vis-a-vis the commissioners court. Abbott v. Pollock, upon which GA-0037 relies for the proposition that a sheriff may select employees of his or her own choosing, likewise pertains to a commissioners court’s authority to alter a sheriffs office employee’s status. See Abbott v. Pollock, 946 S.W.2d 513,518 (Tex. App.-Austin 1997, writ denied);seealso TEX.LOC. GOV’TCODEANN. 5 151.004 (Vernon 1999) (prohibiting a commissioners court from influencing an individual’s appointment to an employee position). A sheriffs authority to appoint employees is statutory, not constitutional. Article V, section 23 of the Texas Constitution does not preclude the legislature from limiting a sheriffs appointing authority by statute, by, for example, prohibiting nepotism. See TEX. CONST. art. V, § 23 (stating that sheriffs’ duties “shall be prescribed by the Legislature”); Tex. Att’y Gen. Op. No. GA-0037 (2003) at 4. Here, the legislature has, by enacting section 158.035(a)(l), expressly authorized acivil service commission to limit a sheriffs appointing authority, where a commission has been established bypetition and ~~~~~~~~~,~~~TEx.Loc.Gov’TCODEANN. 5 158.033 (Vernon 1999), but excepting those positions a sheriff has designated as exempt under section 158.038, see id. 5 158.038(b) (Vernon Supp. 2004-05). Moreover, a 2003 appellate court opinion, Sheppard v. Thomas, suggests that a sheriffhas 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 sheriffs sphere of authority. See Sheppard v. l7zomns, 101 S.W.3d 577, 582-83 (Tex. App.-Houston [ 1st Dist.] 2003, pet. denied). The Sheppard court concluded that a civil service commission’s authority to regulate employee layoffs and dismissals under section 158035(b)(4) The Honorable Bill Hill - Page 5 (GA-0254) “vests the Commission with the authority to compel a sheriffto follow its rulings.” Id. at 582. Thus, when a commission orders a sheriff to reinstate a particular former employee without taking a physical-ability test, the sheriff is required to comply: “[Alnything less than [the sheriffs] full compliance with the Commission’s order constitutes a failure to perform a nondiscretionary ministerial act.” See id. at 583. We accordingly conclude that a civil service commission created under chapter 158, subchapter B of the Local Government Code may, under section 158035(b)(l), limit the sheriffs authority to select assistants. The civil service commission’s authority to regulate personnel selection does not unlawfully infringe upon the sheriffs authority. The Honorable Bill Hill Page 6 (GA-0254) SUMMARY A civil service commission created under chapter 158, subchapter B of the Local Government Code has express statutory authority, under section 158.035(b)(l), to limit the sheriffs authority to select assistants. The civil service commission’s statutory authority to regulate personnel selection does not impertnissibly intrude upon the sheriffs sphere of authority discussed in Attorney General Opinion GA-0037 (2003). Very truly yours, BARRY R. 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