                                        The Attorney        General of Texas
       JIM MAlTOX                                        ~u.ly15. 1986
       Attorney General


       Supreme Ocurl Building
                                      Honorable Benjamin Iknesti         Opinion No. JM-521
       P. 0. BOX 125433
       Austin. TX. 79711. 254S
                                      Cameron County Attorney
       512/475-2501                   974 E. Harrison Strc!c:t           Re: Authority of commissioners court
       Telex 910/874.1287             Brownsville, Texas   78520         to prohibit county employees from
       Telecopier   51214750286                                          running for office in a partisan
                                                                         election
       714 Jackson. Suite 700
       Dallas. TX. 752024503          Dear Mr Euresti:
       214i742-8944
                                           You state that: the commissioners court of Cameron County has
       4824 Alberta Ave., Suite 180
                                      adopted a policy prohibiting county employees from running for office
       El Paso. TX. 799052793         in a partisan elect!.on. This restriction states as follows:
       915/5xxMS4
                                                  A count:y employee, other than an elected
                                               official, 'may not be a candidate for elective
,lWl         Texas. Suite 700
                                               office in a partisan election. (A partisan elec-
        louston, TX. 77002.3111
       113X223-5888
                                               tion is an election in vhich candidates are to be
                                               nominated or elected to represent a party whose
                                               candidates; for presidential electors received
       808 Broadway, Suite 312                 votes In .the last preceding election at which
       Lubbock, TX. 79401379                   presidential electors were selected.)
       SW7476239

                                      Personnel Policies Manual of Cameron County, Texas, 02.05.
       4309 N. Tenth, Suite 6
       McAllen, TX. 78501.1885             You ask whether this policy is binding on the staff of elected
       512lS82-4547
                                      constitutional count,yofficers other than members of the commissioners
                                      court. You also ac.k. whether this policy, as applied to all county
       200 Main Plaza, Suite 400      employees, is consistent with the Texas and United States Constitu-
       San Antonio, TX. 78205.2797    tions.
       5121225-4191

                                           We note initia1Ll.y
                                                             that elected county officers are exempted from
       An Equal OpportunityI
                                      this policy. Arti1:l.eXVI, section 65, of the Texas Constitution
       Affirmative Action Employer    subjects elected county and precinct officers to the following
                                      provision:

                                                  Provided, however, if any of the officers named
                                               herein shs,llannounce their candidacy, or shall in
                                               fact becone a candidate. in any General, Special
                                               or Primary Election, for any office of profit or
                                               trust unda!r the laws of this State or the United
                                               States other than the office then held, at any
                                               time when the unexpired term of the office then



                                                                p. 2392
Honorable Benjamin Euresti - Page 2     (m-521)




          held shall exceed one (1) year, such announcement
          or such candidacy shall constitute an automatic
          resignation of th.e office then held, and the
          vacancy thereby created shall be filled pursuant
          to law in the sari...
                              manner as other vacancies for
          such office are filled.

See Clements V. Fashing, 457 U.S. 957 (1982).
-
     The commissioners court may exercise those powers implied from
express powers as well as :?owers that the constitution and statutes
have expressly conferred qmn it. Canales V. Laughlin, 214 S.W.2d
451 (Tex. 1948); Anderson V.--Wood, 152 S.W.2d 1084 (Tex. 1941). The
court has broad discretion in exercising expressly conferred powers.
Anderson V. Wood. supra.

     Article V, section 18, of the Texas Constitution provides that
the commissioners court

          shall exercise su:h powers and jurisdiction over
                                                      ~~-
          all county business, as is conferred by i:his
          Constitution and tgelaws of the State, or as may
          be hereafter prescribed. (Emphasis added).     _

Tex. Const. art. V. 918. Under this provision. and the statutes
defining its powers, the collmllssioners
                                       court has implied authority to
employ persons necessary to carry out county business. See, e.g.,
Adams V. Seagler, 250 S.W. 413 (Tex. 1923); Gano V. Palo Pinto County,
8 S.W. 634 (Tex. 1888); &f:   V. Hall, 280 S.W. 289 (Tex. Civ. App. -
Waco 1925, no writ). ---See also Pritchard & Abbott V. McKenna, 350
S.W.2d 333 (Tex. 1961). In addition, some statutes authorize the
court to hire employees to implement specific programs. See. e.g.,
V.T.C.S. arts. 39121; 6702-l. 162.002(b)(2). 3.101.

     The court's authority to hire employees includes the implied
authority to establish workJ.ngconditions for them. Attorney General
Opinions H-402 (1974); V-110 (1947). See also V.T.C.S. art. 3912k
(statute governing compensation, expenses, and benefits of county,
precinct, and district employ#ees). We believe the commissioners court
may prohibit partisan political candidacies by the employees it has
authority to hire, where this condition is reasonably necessary to the
conduct of county business. The court's authority is subject to con-
stitutional and statutory l:initations. Cf. Stone V. City of Wichita
Falls. 646 F.2d 1085 (5th Cit. 1981) (homerule city charter provision
prohibiting fireman's candidacy for elective office was inconsistent
with section 22 of article 1269m. V.T.C.S., and therefore invalid
under article XI, section 5, IofTexas Constitution).

     We turn to the first question -- whether the policy applies to
the staff of elected con!:titutional county officers, aside from
members of the commissioners court. We have determined that the



                                      p. 2393
.
    Ronorable Benjamin Euresti - Page 3   (JM-521)




    court's implied authority to adopt this restrictlon is based on its
    authority to hire employeeis and establish reasonable working con-
    ditions. Necessarily, it may impose this condition only on the
    employees which it has authority to hire and fire. See Newcomb v.
    Brennan, 558 F.2d 825, cert. denied, 434 U.S. 96871977)       (city
    attorney could dismiss dep%y who announced his intention to run for
    Congress).

         Article 3902, V.T.C.!;..,provides that district, county, and
    precinct officers shall appoint their deputies, assistants, and
    clerks. The officer must apply to the court for authority to appoint
    such personnel and the “wurt shall make its order authorizing the
    appointment of such deputL:s. assistants and clerks . . . and deter-
    mine the number to be appointed. . . ." V.T.C.S. art. 3902. The
    court also establishes the compensation for each position, formerly
    under article 3902, V.T.C.E,., and other specific statutes and now
    under article 3912k. V.T.C.1. Attorney General Opinions H-697 (1975);
    E-35 (1973); see Renfro V. Shropshire, 566 S.W.2d 688 (Tex. Civ. App.
    - Eastland 1978,writ ref'di1.r.e.). However, article 3902, V.T.C.S.,
    expressly prohibits the court from attempting "to influence the
    appointment of any person as deputy, assistant or clerk in any
    office." The commissioners court has "no legal right to screen
    applicants or to veto appointments" made by county officers. See
    Renfro v. Shropshire, 566 S.B.2d 688 (Tex. Civ. App. - Eastland 1978.
    writ ref'd n.r.e.).

         The commissioners court has no power to interfere in the hiring
    decisions made by other county officers; therefore, it may not require
    those county officers to te:rPainate
                                       an employee who becomes a candidate
    for partisan political office. This policy does not affect the
    employment decisions of elected constitutional officers other than
    members of the commissioner!;court.

         We next consider whether the commissioners court may constitu-
    tionally apply the policy to the employees It has authority to hire
    and fire.

         You do not identify an:,Texas constitutional provisions which you
    wish us to address. Article XVI, section 40, of the Texas Constitu-
    tion may be relevant to the court's policy. This provision states in
    part:

             State employees !": other individuals who receive
             all or part of their compensation either directly
             or indirectly frai funds of the State of Texas and
             who are not State officers, shall not be barred
             from servinn as m&bers of the noverninn bodies of
             school districts, cities, towns, or other local
             governmental districts; provided, however, that
             such State employees or other individuals shall




                                     p. 2394
Bonorable Benjamin Euresti - Page 4    (JM-521)




          receive no salary for serving as members of such
          governing bodies. (Emphasis added).

Tex. Const. art. XVI, 540. The quoted language has been construed to
authorize an employee compelsated from state funds to be a candidate
for election to a local aov~?rntnental
                                     body. Attorney General Oninions
MW-149 (1980); H-659 (1975). See also S&e   V. Cit; of Wichita'Falls,
477 F. Supp. 581 (N.D. Tex. 1979). aff'd. on other grounds, 646 F.2d
1085 (5th Mr. 1981). Such persons are protected from dismissal under
statutes and regulations prohibiting political candidacies by public
employees.

     We turn to the validity of such policies under the United States
Constitution. The United States Supreme Court has upheld com-
prehensive restrictions on the outside political activity of federal
and state civil service eraployees. United States Civil Service
Cmission   v. National Association of Letter Carriers, AFL-CIO, 413
U.S. 548 (1973); Broadrick ;. Oklahoma, 413 U.S. 601 (1973); United
Public Workers of America z. Mitchell, 330 U.S. 75 (1947). These
judicial decisions considerad extensive statutory prohibitions on
public employee's participation in political activities and upheld
them against challenges on first amendment grounds. See also Wachstnan
v. City of Dallas. 704 F.2d 160 (5th Cir. 1983), cert. denied, 464
U.S. 1012 (1983); Hickman v. City of Dallas, 475 F. Supp. 137 (N.D.
Tex. 1979), aff'd. mem., 6a F.2d 629 (5th Cir. 1980); Annot., 44
A.L.R. Fed. 306 (1979); Annot., 28 A.L.R. 3d 717 (1969).

     In United Public Workls:s of America v. Mitchell, the Supreme
Court upheld the Hatch Act ban on political activities of federal
employees. The court concluded that the employee's first amendment
right to engage in politi:al speech and activity was subject to
regulation within reasonable limits to protect the competency and
integrity of the uublic service and to maintain authoritv over its
disciplihe and eificiency. United Public Workers of America v.
Mitchell, supra, at 102.

     In United States Civil +vice   CmnrnissionV. National Association
of Letter Carriers, AFL-CIO, 413 U.S. 548 (1973) the Supreme Court
referred to the balance to be: struck between the emrlovee's
                                                    . .      interests
as a citizen in conmtentin~:on matters of public concern and the
government "as an employer, in promoting the efficiency of the public
services it performs through its employees." 413 U.S., at 564
(quoting Pickering V. BoardL)f Education, 391 U.S. 563, 568 (1968)).
The court identified the governmental interest in having its employees
administer the law in accordance with the will of Congress rather than
the will of a political part:y,in avoiding the appearance of partisan
bias in administering the law. and in preventing the use of a govern-
ment work force as a po1itic:a.lmachine. 413 U.S. at 564-65. A related
interest was to make employment and advancement in government service
not depend upon political performance. 413 U.S. at 566.




                                      p. 2395
Honorable Benjamin Euresti - Page 5      (JM-521)




     In Broadrick V. Oklahom!. 413 U.S. 601 (1973) the Supreme Court
determined that Oklahoma's restrictions on political activities of the
state's classified civil servants would not be struck down as facially
overbroad, even though the etatute was directed at political expres-
sion "which if engaged in b:y private persons would plainly be pro-
tected by the First and Fourteenth Amendments." It stated as follows:

          But at the same i:J:me,5818 [of Oklahoma's Merit
          System of Personnel Administration Act, Okla.
          Stat. Ann., Tit. 74, 6801 et seq.] is not a
          censorial statute, directed at particular groups
          or viewpoints. . , . The statute, rather, seeks
          to regulate polit::calactivity in an even-handed
          and neutral manner.

413 U.S. at 616. See also C:lementsV. Fashing. 457 U.S. 957 (1982)
(restraints on political c&didacies established by article III.
section 19, and article XV::, section 65, of the Texas Constitution
have a rational basis and may be upheld under traditional equal
protection analysis); --
                      Wachsrvm v. City of Dallas, 704 F.2d 160 (5th
Cir. 1983). cert. denied, 464 U.S. 1012 (upholding Dallas city charter
provisions prohibiting certain kinds of participation by city
employees in local elections, including nonpartisan city council
elections).

     The Supreme Court cams have upheld bans on a broad range of
political activities by public employees. However, the possibility
remains that such restricttons may be invalid as to a particular
public employee. In Hickmanp. City of Dallas, 475 F. Supp. 137 (N.D.
Tex. 1979). aff'd. men., 634,F.2d 629 (5th Cir. 1980), an employee of
Dallas challenned a citv charter urovision which reauired him to
forfeit his position if-he became 'a candidate for elective office
within the county. The court :Eoundthis provision invalid as violating
the first amendment rights of the employee, a nonsupervisory police
officer, who wished to run for city council in a different city.
Dallas did not show that his candidacy would impair the integrity of
city government or the lo:ralty and efficiencv of citv emulovees.
Hickman V. City of Dallas, '$.75-F.Supp. 137 (N:D. Tex. i979); aff'd.
nest.,634 F.2d 629 (5th Cir. 1980).

     The court examined the city's objectives in adopting the policy.
It found that the city's interest in maintaining the loyalty,
efficiency and nonpartisanship of its employees would justify reason-
able restrictions on it the first amendment right of its employees to
become candidates for public office:

         For example, conflicts might arise if an employee
         were to challenge h:tssupervisor, or run for mayor
         or the city council, in a Dallas city election.




                                      p. 2396
Eonorable Benjamin Euresti - Page 6     (JM-521)




          Candidacy for elec~::iveoffice. whether inside or
          outside Dallas, by those in managerial or super-
          visory positions might well create the possibility
          and the appearance of conflicts of interest.

475 F. Supp. at 141.

     Based on the authorities cited, we do not believe the courts
would hold the Cameron County policy facially invalid. See Willis v.
City of Fort Worth, 380 S.W.:!d814 (Tex. Civ. App. - Fort Worth, 1964
writ ref'd n.r.e.). However, it may be unconstitutional as applied to
                         Dallas v. Hickman, B.
particular candidacies. --                          Whether particular
applications are invalid must be decided on a case by case basis.

                              SUMMARY

             The cormnissionen~court of Cameron County has
          implied authority to prohibit the county employees
          which it hires from running for partisan office.
          This policy does not apply to the staff employed
          by elected constix~tional county officers. The
          policy is not facially unconstitutional but may
          have unconstitutioml applications under article
          XVI, section 40, o:T the Texas Constitution or the
          first and fourteenth amendments of the United
          States Constitutior..




                                            JIM     MATTOX
                                            Attorney General of Texas

JACK HIGETOWBR
First Assistant Attorney Genmal

MARY KELLER
Executive Assistant Attorney G.eneral

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




                                  p. 2397
