    OPflCE   OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

    JOHN CORNYN




                                                   January 22,200l




The Honorable Juan .I. Hinojosa                            Opinion No. K-0334
Chair, Committee on Criminal Jurisprudence
Texas House of Representatives                             Re: Procedures governing disciplinary    action
P.O. Box 2910                                              against an employee of a sheriffs department
Austin, Texas 78768-2910                                   covered by a county civil service system
                                                           (RQ-0267-JC)



Dear Representative      Hinojosa:

          On behalf of the Hidalgo County Sheriffs Department (the “Department”), you ask about
the law and procedures generally applicable to disciplinary action against an employee of the
Department.     Department employees, you tell us, are covered by the county civil service system
established under subchapter A of chapter 158 of the Local Government Code (a “subchapter A
county civil service system”).’ You first ask whether there is a time limit for taking disciplinary
action against a Department employee upon discovery of a violation of the law, a civil service rule,
or both. You next ask whether the disciplinary procedures set out in section 143.1017 or 158.0351
of the Local Government Code apply to the county’s civil service system. Finally, you ask whether
the Department must tile with the attorney general a criminal investigation statement required by
subsection (h) of section 143.1017, if the Department intends to indefinitely suspend an employee
for a violation of the law, civil service rule, or both.

         We answer your first question in general terms and with reference only to the civil service
provisions of the Local Government Code. We conclude that there are no statutory time limits for
taking disciplinary action against an employee of the sheriffs department covered by a subchapter
A county civil service system. We also conclude that section 143.1017, which sets forth disciplinary
procedures applicable to amunicipal fire fighters and police officers civil service system, and section
158.0351, which sets out procedures applicable to a sheriffs department civil service system in a
county with a population of more than 500,000, by their terms do not apply to a chapter 158,
subchapter A county civil service system. The subchapter A civil service commission, however,



       ‘SeeLetter fromHonorable Juan J. Hinojosa,Chair,HouseCommitteeon CriminalJurisprudence,to Honorable
John Comyn, Texas Attorney General (Aug. 10,ZOOO) (on tile with Opinion Committee) [hereinafterRequest Letter].
The Honorable        Juan J. Hinojosa     - Page 2         (X-0334)




could adopt the section 143.1017 or 158.035 1 provisions as rules or use them as a guide in adopting
its rules. Finally, we conclude that the Department is not required by section 143.1017(h) to file a
statement with the attorney general if the Department intends to indefinitely suspend an employee
given that the statute by its terms does not apply to the county civil service system.

         To provide a legal context for your questions, we briefly review the county civil service
scheme under subchapter A of chapter 158 of the Local Government Code. Subchapter A permits
a county with a population of 200,000 or more to create a county civil service system to include “all
the employees of the county who are not exempted from the system by the express terms or judicial
interpretations of [Subchapter A] or by the operation of Subchapter B.“’ TEX. LOC. GOV’T CODE
ANN. 5 158.002 (Vernon 1999). If a civil service system is created, the commissioners court must
appoint a civil service commission to administer the system. See id. 3 158.008 (a). The civil service
commission must adopt, publish, and enforce rules regarding (1) the definition of an employee; (2)
selection and classification of 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 employees’ selection, rights, advancement, benefits, and their working
conditions. See id. 5 158.009(a). Subchapter A does not set out procedures applicable to dismissal
of civil service county employees or to disciplinary action against them.

         Hidalgo County has a population of 383,545 according to the most recent federal decennial
census. See 1 BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE,1990 CENSUS OF POPULATION:
General Population Characteristics: Texas 2 (1992); TEX. GOV’TCODE ANN. 5 311.005(3) (Vernon
 1998) (“‘Population’ means the population shown by the most recent federal decennial census.“).
Pursuant to chapter 158, subchapter A, Hidalgo County voters approved the creation of a county civil
service system; and the county civil service commission appointed by the commissioners court
adopted a rule including deputy sheriffs and deputy constables within the definition of county
“employees”3 subject to the civil service system. See Request Letter, supro, note 1 at 1. We assume
that the civil service commission in Hidalgo County has not adopted rules addressing the
disciplinary procedures you ask about.




         ‘Subchapter B of chapter 158 allows creation of a sheriffs department civil service system in a county with
a population of more than 500,000. See TEX.Lot. GOV’TCODEANN.$5 158.031-,040(Vernon 1999).

        ‘Section 158.001(2)defmes an “employee” in a county that has adopted a subchapter A civil service system
as
                    a person who obtains a position by appointment and who is not authorized by
                    statutetoperfonngovemmental functions involving an exerciseofdiscretion inthe
                    person’s own right, unless the person is included by a local service rule adopted
                    under the procedures outlined in Section 158.009; 01 a person included in the
                    coverage of a county civil service system as the result of an election held under
                    Section 158.007.

Id. 5 158.001(2).
The Honorable Juan J. Hinojosa     - Page 3       (X-0334)




        We begin our analysis with your second question: whether section 143.1017 or section
158.0351 of the Local Government Code apply to a county that has adopted a civil service system
under subchapter A of chapter 158. We conclude that neither provision by its terms applies to such
a county.

         Chapter 143 of the Local Government Code applies only to a city that adopts a civil service
system covering tire fighters, police officers, or both. See TEX. Lot. GOV’T CODEANN. $5 143.002,
,004 (Vernon 1999). Section 143.1017, which sets out procedures for suspending or dismissing a
fire fighter or police officer who is indicted for a felony or officially charged with any other crime
involving moral turpitude, applies only to a municipality with a population of 1.5 million or more.
Seeid. $5 143.101(a), .1017.


         Subchapter B of chapter 158 of the Local Government Code, sections 158.031 through
158.040, applies to a sheriffs department civil service system established in a county with a
population of more than 500,000. See id. 5 158.032. Section 158.0351, which also sets out
procedures for suspending or dismissing a sheriffs department employee indicted for a felony or
charged with the commission of a class A or B misdemeanor, applies only to a sheriffs department
civil service system in a county with a population of 2.8 million or more. See id. fj 158.0351.

         You next ask: “If a county employee is suspended under these conditions, violation of law
and/or Civil Service Rule and the department head is considering ordering an indefinite suspension,
is the sheriffs department required to file with the attorney general a statement within 180 days as
stated in section 143.1017(h) [of the Local Government Code]?’ Request Letter, supra, note 1 at
2. We conclude in the negative. Subsection (h) of section 143.iO17 allows a department head to
indefinitely suspend a tire fighter or police officer after the 180-day period following the date of the
discovery of the act constituting a felony or a crime of moral turpitude when the department head
considers a delay to be necessary to protect a criminal investigation of the person’s conduct. See
TEX. Lot. GOV’T CODE ANN. $ 143.1017(h) (Vernon 1999). If the department head intends to do
that, he or she must file with the attorney general a statement describing the criminal investigation
and its objective within 180 days after the date the act complained of occurred. See id. But as we
have previously concluded, section 143.1017 by its terms does not apply to a subchapter A county
civil service system.

          But, while sections 143.1017 and 158.0351 by their terms do not apply to a county that has
established a civil service system under subchapter A of chapter 158, a civil service commission in
such a county could adopt the substance of these provisions as a rule or use them as a guide in
adopting its rules addressing disciplinary procedures. See id. $4 158.008(a), .009(b); Tex. Att’y Gen.
Op. No. DM-338 (1995) at 10. Section 158.009(a) directs a civil service commission established
pursuant to subchapter A to adopt, publish, and enforce rules regarding dismissals and disciplinary
actions, among other subjects. TEX. Lot. Gov’TCODEANN. 5 158.009(a) (Vernon 1999). Section
158.009(b) authorizes it to adopt or use as a guide any civil service law or rule of the United States,
the state, or a political subdivision of the state to the extent the law or rule promotes the purposes
of subchapter A and serves the county’s needs. See id. 5 158.009(b); Tex. Att’y Gen. Op. No. DM-
The Honorable Juan J. Hinojosa     - Page 4       (K-0334)




338 (1995) at 10 (“The language of section 158.009 thus tends to suggest a narrower legislative
intent to authorize the commission to adopt or use laws or rules that serve as guides only for its own
rule-making process.“).

         Finally, we consider your question: “Is there a time limit for taking disciplinary action
against an employee of the sheriffs department upon discovery of a violation of law and/or civil
service rule violation?’ Request Letter, supra, note 1 at 1. Given the lack of context and specificity
ofyour question, we answer it in general terms and with reference only to the statutory civil service
provisions of the Local Government Code.

         Subchapter A of chapter 158 of the Local Government Code does not provide a time frame
within which disciplinary action must be taken upon discovery of a misconduct.          Civil service
provisions in chapters 143 - municipal civil service system - generally require that disciplinary
action be taken within six-months of the discovery of the conduct, see, e.g., TEX. LOC. GOV’T CODE
ANN. 5 143.056(h) (Vernon 1999) (indefinite suspension based on felony or class A or B
misdemeanor may be ordered after 180-day period following discovery of act only if delay is
necessary to protect criminal investigation); id. 5 143.1017(h) (indefinite suspension based on
felony or crime of moral turpitude may be ordered after 180-day period following discovery only
if delay is necessary to protect a criminal investigation in city with population of 1.5 million or
more). However, these provisions by their terms do not apply to a chapter 158, subchapter A county
civil service system.

        While subchapter A does not limit the time frame for taking disciplinary action against a civil
service employee, in our opinion, any disciplinary action should be taken within a reasonable time
of the discovery of the violation of the law, civil service rule, or both.
The Honorable   Juan J. Hinojosa   - Page 5     W-0334)




                                       SUMMARY

               There is no statutory time limit for taking disciplinary action against an
          employee of a sheriffs department covered by a civil service system
          established under subchapter A of chapter 158 of the Local Government
          Code. Sections 143.1017 and 158.0351 of the Local Government Code do
          not apply to a chapter 158, subchapter A county civil service system. A
          subchapter A civil service commission, however, could adopt the section
          143.1017 or 158.0351 provisions as rules or use them as a guide in adopting
          its rules. A department head in a subchapter A county civil service system
          is not required by section 143.1017(h) to tile a statement with the attorney
          general if the department intends to indefinitely suspend an employee given
          that the statute by its terms does not apply to a subchapter A county civil
          service system.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVlN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General - Opinion Committee
