                        February 28, 1972


Honorable Ted Butler            Opinion No.M-1088
Criminal District Attorney
Bexar County Courthouse         Re:   Construction of Senate Bill
San Antonio, Texas 78204              213, Acts 62nd Leg., R.S.
                                      1971, Ch. 262, p. 1151 (Art.
Dear Mr. Butler:                      2372h-6, V.C.S.).

          Your request for an opinion asks the following question:

          "your opinion is requested as to whether
     deputies of county officials are 'Employees'
     within the definition of 'Employee' in Section
     1 (3) of the Civil Service Syst&n-Creation,
     Dissolution, Etc.--Counties of 300,000 or More,
     Chapter 262, S.B. No. 213, 62nd Legislature,
     R.S., 1971. We refer to all deputies, but
     specifically those deputies of the following
     county officials:    a.) County Clerk, b.) District
     Clerk,  c.) Assessor  and Collector of Taxes, d.)
     Auditor,  e.) Treasurer,  f.) Sheriff, and g.) Con-
     stables."

          Senate Bill 213, Acts 62nd Legislature, R.S. 1971, Ch.
262, p. 1151 (Article 2372h-6, Vernon's Civil Statutes) provides
for the creation of a county civil service system in counties
having a population of 300,000 or more inhabitants.  Section 1
defines "employee" as follows:

          "(3) 'Employee' means any person who obtains
     his position by appointment and who is not au-
     thorized by statute to perform governmental
     functions in his own right 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."

          In the case of Murray v. Harris, 112 S.W.Zd 1091 (Tex.
Civ.App. 1938, error dism.), the court stated at page 1093:

          "The statute conferring upon the sheriff
     the power to appoint deputies fixes no definite

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     term of office, but provides that the tenure
     shall be at the pleasure of the sheriff, which
     is tantamount to a provision that both the
     appointment and tenure are discretionary with
     him. . ."

          It was thus held in Attorney General's Opinion WW-1191
(1961):

          "Thus, it is clear that, under the pro-
     visions of Article 6869, the Sheriff has full
     power to appoint the deputies who will serve
     under him and also has full power to terminate
     their services at any time he may see fit. The
     term of a deputy sheriff is not fixed by statute
     and the power to 'hire' and 'fire' is an incident
     of the power of appointment given the sheriff.
     The office of deputy sheriff is therefore held
     only during the pleasure of the sheriff."

          It is our opinion that the above holding is equally
applicable to other deputies. Article 1938, Vernon's Civil
Statutes, relating to deputy,county clerks; Article 1898, relating
to deputy district clerks: Article 7252, relating to deputy as-
sessor-collectors of taxes: Article 1650, relating to assistant
county auditors; Article 3943d, relating to assistants to the
county treasurer; and Article 3902, relating to appointment
generally of deputies, clerks and assistants.

          In Attorney General's Opinion O-5341   (1943), it is
stated:

          "'The term "office" implies a delegation of
     a portion of the sovereign power to, and possession
     of, it by the person filling the office; a public
     office being an agency for the state, and the
     person whose duty it is to perform the agency
     being a public officer.  The term embraces the
     idea of tenure, duration, emolument and duties,
     and has respect to a permanent public trust to
     be exercised in behalf of government, and not to
     a merely transient, occasional or incidental em-
     ployment. A person in the service of the govern-
     ment who derives his position from a duly and
     legally authorized election or appointment, whose
     duties are continuous in their nature and defined


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        Hon. Ted Butler, page 3        (M-1088)



             by rules prescribed by government, and not by con-
             tract, consisting of the exercise of important
             public powers, trusts, or duties, as a part of the
             regular administration of government, the place
             and the duties remaining, though the incumbent
             dies or is changed, every office in the consti-
             tutional meaning of the term implying an authority
             to exercise some portion of the sovereign power,
             either in making, executing or administering the
             laws. Mechem on Public Officers, §l-9."'

                  In view of the foregoing authorities we agree with you
        that deputies of county officials are included in the definition
        of "employee" as defined in Subsection (3) of Section 1 of Senate
        Bill 213, Acts 62nd Legislature, R.S. 1971, Ch. 262, page 1151
        (Article 2372h-6, Vernon's Civil Statutes).

                                     SUMMARY

                  Deputies of county officials are "employees"
             within the meaning of Senate Bill 213, Acts 62nd
             Leg., R.S. 1971, Ch. 262, p. 1151 (Article 2372h-6,
             Vernon's Civil Statutes), creating a county civil
             service system in counties with a population of
             300,000 or more inhabitants.

                                                  truly yours,




                                                      General of Texas

        Prepared by John Reeves
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Kerns Taylor, Chairman
        W. E. Allen, Co-Chairman
        James McCoy
        Jack Goodman
        Herschel T. Moore
        Dyer Moore



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    Hon. Ted Butler, page 4    (M-1088)



    SAMUEL D. MCDANIEL
    Staff Legal.Assistant

    ALFRED WALRER*
    Executive Assistant

    NOLA WHITE
    First Assistant




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