HonorableAdam R. Johnson
ExecutiveDirector
State Departmentof PublicWelfare
Austin,Texas

HonorableOrvilleS. Carpenter
Chairmanand ExecutiveDirector
Texas UnemploymentCompensationCommission
Austin,Texas

Gentlemen:

                                         OpinionNo. O-1752
                                         Re: May a Joint Merit System
                                             Councilbe established';y
                                             the ExecutiveDirectorsof
                                             the State Departmentof
                                             Public Welfareend Texas
                                             UnemploymentCompensation
                                             Collmission?

         We receivedyour letterof December1, 1939, in which you request
our opinionon the followingquestion:

         "DO we have authorityunder the laws creatingthese agen-
    cies and the generallaws of the State of Texas to establishby
    regulationsuch a Joint Merit System Councilas that contemplated
    by the minimum standardsof the Social SecurityBoard; or, in the
    absenceof any specificstatutoryauthorization,is there any
    prohibition'against such joint actionby us?"

          You advisethat the Federal SecurityAgency has adoptedminimum
standardsfor a merit systemof personneladministration  and enclosea copy
of the minimumstandardsfor a merit system in these agencies. A perusalof
the minimum standardsset out in the folder disclosesthat in the absenceof
a State civil servicesystemthere will be establisheda merit systemadmin-~
isteredby.an impartialbody referredto s.sthe Merit SystemCouncil,the
members of which are to be appointedby the administrativeagenciesor by the
Governoron recommendation  of the administrativeagencies,for statedoverlap-
ping terms, and no member of which is otherwiseemployedas an officialor
employeeof any of the State agenciesaffected. Briefly stated,the minimum
standardsprovidefor a completemerit systemor civil serviceplan to be ad-
ministeredby the Merit System Council. Among other requirements, the Council
HonorableAdam R. Johnssn,Page 2 (O-1752)
HonorableOrvilleS. Carpenter



is to appointa merit system supervisorto conductwritten exsminations~given
to appliCmtB,  and establishregistersof eligibles. All poBitionsnot spe-
cificallyexemptedare to be filled from a regieterof eligibleswhich will
includea limitednumber of the highestavailableeligibles. Further,the
eligibilityof an employeefor promotionwill be determinedon recommendation
of the agency and certification
                              by the merit system supervisorthat the em-
ployee meets the minimumrequirementsand is qualifiedfor promotionto the
class of positionin question.

          A scrutinyof the statutesrevealsthat the selectionof employees
for the State Departmentof PublicWelfarehas been vested in the executive
directorand the members of the board. Sectionk of Article695c, Revised
Civil Statutesof Texas, reads:

         "The ExecutiveDirectorshall be the executiveand admin-
    iBtmtiVe  officerof the State Department. The ExecutiveDirec-
    tor, with the consentand approvalsof a majorityof the members
    of the Board shall:

           “a.   Classifyall positionsIn the administration
                                                          of this
    Act;

         "b. Fix objectiveBtandardBfor all positionsincludedin
    the classifications;

         "C. Formulatesalaryschedulesfor the servicesso     cla~si-
    fled, subjectto biennialappropriations;

         "d. Provide for a fair and impartialselection,appoint-
    ment, retentionand promotionof personnelin accordancewith
    the classificationand compensationplans thereinbefore pro-
    vided."

          The authorityto appointemployeesfor the Texas UnemploymentCom-
pensationCommission rests with the Commission.  Article 5221-b-9,Subdivi-
sion (d), RevisedCivil Statutes,providesas follows:

         "Personnel: Subjectto other provision6of this Act, the
    Commission iB authorizedto appoint,fix the compensation,  and
    prescribethe duties and powers of such officers,accountants,
    attorneys,experts,and other personsas may be necessaryin
    the performanceof its duties. The Commissionshall not em-
    ploye or pay any person who is an officeror cossnitteemember
    of any politicalparty organization.The Comis~ion    may dele-
    gate to any such person so appointedsuch power and authority
    as it deems reasonableand proper for the effectiveadminis-
    trationof this Act, and may, in its discretion,bond any per-
    Son handlingmoneys or signingchecks hereunder."
HonorableAdam R. Johnson,Page 3 (O-1752)
HonorableOrvilleS. Carpenter



                                        16 providedfor by statute,it takes
          When a civil servicecosunieeion
over certainpowersthat were formerlyvested in the administrativehead or
appointingpower of the Sovenussnt.The Legislaturetakes the power to appoint
employeesor removethem and placesthis functionin the hand8 of an impartial
body. It transfersfrom one head to anothercertainadministrative powers;
and, in creatingcivil servicecommissionB, the Legislaturetrsnsfersthe em-
ploymentbureau of the Governmentto a new body. HermanJ. Friedman,25 Har-
vard Law Review 712.

          Under the relatedfacts,the creationof a civil serviceor merit
system of personneladministrationby mutual agreementbetweentwo separate
appointingpowers is not permissiblein the absenceof statutoryenactment.

          The selectionand appointingpower of each agency has been provided
for in the statutesquotedand where the Legislaturedelegatinga power directs
the manner of its exercise,that method is exclusiveof all othere. 39 T. J.
68; WichitaElectricCo. v. Hinckley,131 S. W. 1192.

          Since the ultimateappointeeis a public officerand so an "agent
or   servsnt
           of the sovereign  people of the State",hs BUBt "derivehis author-
ity eitherby electionby the people or appointmentby that tribuneto whom
the people have confidedthe power of appointment." State v. Washburn,Sup.
Ct. of MIBBOLI~I,67 S. W. 592.

          The duty of investigatingand determiningas to the qualifications
of applicantsfor public positionis placed on the appointingpower. When
the Legislaturehas placedthe authorityof making appointmentsupon officers
and boards,and vests them withna discretionand judgmentto determinewho
is best qualifiedto serve the public,the courts cannot supervisethe exer-
cise of such authority,nor controlthe discretionand judgment80 vested.
An appointmentconsistsin the choiceby the appointingpower of the person
appointed,end involves  the exerciseof discretion. While the appointing
power may listento the recommendation or advice of other8 . . . yet the Be-
lectionmust finallybe the act of the appointingpower. I.2C. J. 897; Dever
V. Humphrey,sup. Ct. Of &nBaB,  75 Pacific 1037; 45 C. J. 952.

          The creationof such a board by the agenCie8 named would mount to
an exerciseof 1egiBhtiVe  power, a prerogative.reeerved to the legislative
body, of this stateby our Texas Constitution,Article III, Section1.

               Trusting   that this will snswer your inquiry,we are

                                                             YOUrB   very truly

APPROVEDDEC 9, 1939                     APPROVED       ATTORNEYGENEXALOF TEXAS
                                        OPINION
I*/ Gerald c. Mann                     coM?.frrrm      By   /B/   RirBchieJohnson
                                       BY /B/ BWR                 HirschieJohnson
ATTORNEXCENERALOFTEXAS                   CHAIRMAN                       ABBiBtallt
HJ:RS:IM
