                          May 12, 1970


Hon. Ward R. Burke, Chairman      Opinion No. M- 628
Department of Mental Health
  and Mental Retardation          Re:   May the Commissioner of the
Box S, Capitol Station                  Texas Department of Mental
Austin, Texas 78711                     Health and Mental Retardation
                                        terminate the services of
                                        the Deputy Commissioner of
                                        that department without the
                                        approval of the governing
Dear Mr. Burke:                         board of that department?
          You have requested our opinion as to whether or not
the Commissioner of the Texas Department of Mental Health and
Mental Retardation may terminate the services of the Deputy
Commissioner of Mental Health Services without the approval of
the Texas Board of Mental Health and Mental Retardation.
          Article 5547-202, Vernon's Civil Statutes, provides
in part as follows:
          "Sec. 2.07. (a) The Board shall appoint
     a qualified person to serve as Commissioner. ...
         "Sec. 2.08. (a) The Commissioner shall
    appoint a Deputy Commissioner of Mental Health
    Services and a Deputy Commissioner for Mental
    Retardation Services. Each appointment is
    subject to the approval of the Board. ...
         "Sec. 2.11 (b) All of the administrative
    rule making and decisional powers granted by
    this Act are vested in the Commissioner, subject
    to the basic and general policies formulated by
    the Board. ...
         "Sec. 2.12 (a) The Commissioner is responsible
    for the effective administration of the programs
    and services of the Department."




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Hon. Ward R. Burke, Page 2   (M-629)


          The power of removal is incident to the power of
appointment. 43 Am.Jur. 31, Public Officers, Sec. 183. The
Deputy Commissioner is a mere employee, without tenure. He
takes no oath, makes no bond, and the nature of his duties do
not require him to exercise sovereign powers in his own right.
47 Tex.Jur. 2d 11-12, Public Officers, Sec. 1.
          In Freeman v. Gould Special School District of Lincoln
C,;uni;;,t3;!.,405 F.2d 1153 (8th Cir. 1969) the Court held

          “Many government employees are under civil
     service and some under tenure. Absent these security
     provisions, a public employee has no right to continue
     public employment except in so far as he may not
     be dismissed or failed to be rehired for impermissible
     constitutional reasons, such as race, religion, or
     the assertion of rights guaranteed by law or the
     Constitution." (405 F.2d 1159).
          "Absent statutory or contractual requirements,
     persons discharged for inefficiency, incompetency,
     or insubordination have no constitutional right to
     a hearing with rights of cross-examination and
     confrontation of witnesses." (405 F.2d 1161).
          The applicable law is stated in Jones v. Hopper, 410
F.2d 1323 (10th Cir. 1969), as follows:
          "It has become a settled principle that government
     employment, in the absence of legislation, can be
     revoked at the will of the appointing officer." (410 F.2d 1328).
          The Supreme Court of the United States in Cafeteria
Workers v. McElroy, 367 U.S. 886 (19611, recognizes this
proposition of law and has not sought to change it as of this
writing.
          There is nothing in the Mental Health and Mental
Retardation Act which requires the approval of the Texas Board
of Mental Health and Mental Retardation where the Commissioner
has terminated the services of the Deputy Commissioner for Mental
Health Services, and it is our opinion that the Commissioner
has the authority to terminate the employment of the Deputy
Commissioner for Mental Health Services without the approval
of the Board.  We have been furnished no factual grounds or




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Hon. Ward Burke, Page 3   (M-628)


basis for the termination of the employment, and we presume
that the termination of employment was not based upon any
unconstitutional ground.
          Formal charges and a hearing are not required even where
a public officer holds only at the pleasure of his superiors
as when the provision for appointment prescribes no definite
term and does not require that the removal be for cause, or
where the removal depends on the exercise of personal judgment
on the question whether cause for removal exists. 43 Am.Jur.
52, Public Officers, Sec. 213.
                        SUMMARY
                        -------
          The Commissioner of the Texas Department of
     Mental Health and Mental Retardation may terminate
     the services of the Deputy Commissioner of Mental
     Health Services without the approval of the Texas
     Board of Mental Health and Mental Retardation,
     provided the termination is not based upon any
     unconstitutional ground.
                                    truly yours,


                                       C. MARTIN

Prepared by Jack Sparks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman
James Mabry
James R. Giddings
Rex White
Vince Taylor
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NVLA WHITE
First Assistant

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