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                               The Attorney              General of Texas
                                                     March    27,     1978
JOHN L. HILL
Attorney General


                           Honorable Bill M. White                    Opinion No. H- 114 4
                           Criminal District Attorney
                           Bexar County Courthouse                    Re: Whether deputy county clerks
                           San Antonio, Texas 78205                   are covered by county civil service.

                           Dear Mr. White:

                                 You have requested our opinion concerning the application of the
                           County Civil Service Act, article 237231-6, V.T.C.S., to deputy county clerks.
                           You have asked whether such deputy clerks are employees within the terms of
                           the ,Act.

                                Section l(3) of article 2372h-6 provides:

                                      “Employee” means any person who obtains his position
                                      bv aooointment and who is not authorized bv statute to
                                        ”    .   .



                                      perform governmental     functions in his “own ri&
                                      involving some exercise of discretion, but does not
                                      include a holder of an office the term of which is
                                      limited by the Constitution of the State of Texas.
                                      (Emphasis added).

                           In Donges v. Beall, 41 S.W.2d 531 (Tex. Civ. App. - Ft. Worth 1931, writ ref’d),
                           the court held that deputy county clerks were public officers within the
                           constitutional limitation of terms of office. If that holding remained the law,
                           it would compel a negative answer to your question. However, in Green v.
                           Stewart, 516 S.W.2d 133 (Tex. 1974), the Supreme Court of Texas stated:

                                      It is our opinion that the decision of this court in
                                      Aldine Independent School District v. Standley, m,
                                      and our refusal of the aoolication for writ of error in
                                      Dunbar v. Brazoria. sum&, impliedly overruled Donges
                                      v. Beall, supra. It is our opinion that the rule of Aldine
                                      and Dunbar is the better one, and also that the
                                      Legislature intended to follow the rule of those cases
                                      in defining an employee in the Civil Service Act.




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Honorable Bill M. White     -   Page 2    (R-1144)



& at 136. The Court held that deputy tax assessor-collectors      act “in the right of
the tax assessor+ollector rather than in their own right.” rd, at 135.

      The statement in Green v. Stewart concerning Donges v. Beall provides a
strong implication that the Texas Supreme Court would hold deputy county clerks
to constitute employees under the Civil Service Act. This implication is butressed
by article 1938, V.T.C.S., which provides for the appointment of deputy county
clerks and states that such deputies “shall act in the name of their principal.. . .”
Furthermore, article 2.22, V.T.C.C.P., which provides that a deputy clerk may
perform the duties imposed upon his principal, is similar to language in article
7252, V.T.C.S., which was relied upon by the Supreme Court in Green v. Stewart.
On the basis of its opinion in Green v. Stewart, in our opinion the Texas Supreme
Court would hold that deputy county clerks act in the right of the county clerk and
are therefore employees within the County Civil Service Act. See Huntress v.
State, 88 S.W.2d 636 (Tex. Civ. App. - San Antonio 1935, writ dism’c This was the
xof       this office in M-1088 (1972), that aspect of which has not been overruled.
See Attorney General Opinions H-985 (1977), H-619 (1975).

       We are aware that this office has ruled that deputy county clerks may take
acknowledgments without naming their principals.      Attorney General Opinion O-
5496-A (1944). We are not persuaded that the ruling conflicts with our decision
herein, since O-5496-A dealt with a very limited ministerial duty, was issued long
before the enactment of article 2372h-6, and relied in part on Donges v. Beall.

       Similarly, we do not find the unreported opinion in Spanihel v. Turrentine, No.
71-H-1340 (U.S. Dist. Ct., S.D. Tex., 1973), to provide a sufficient basis upon which
to base another conclusion. The opinion was written before Green v. Stewart, did
not mention article 2372h-6, and relied upon article 2372h, the application of which
has been clearly limited by the subsequent enactment of article 2376h-6.               In
addition, much of the discussion of the control of the county clerk over his deputies
directly supports our decision that such deputies act in the right of their principal.

                                    SUMMARY

            Deputy county clerks are employees within the scope of the
            County Civil Service Act, article 2372h-6.




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                                              (H-1144)
Honorable Bill M. White   -   Page   3



APPROVED:




DAVID M. KENDALL, First Assidant



  &d
C. ROBERT HEATH, Chairman
Opinion Committee

jst




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