                                         DRNEY                 GENERAL

                                                                       1
                                                                             Y------
                                                                                     i’his    Opinion

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                                           May        20,   1975


The Honorable     Henry Wade                                       Opinion    No.   H-       619
District Attorney
Dallas County     Government Center                                Re:   Conetruing     the County
Dallas,  Texas      75202                                          Civil Service    Act, article
                                                                   237211-6, V. T. C. S.

Dear   Mr.   Wade:

          You have requested     our opinion concerning     the applicability                           of the
County Civil Service    Act,   article    2372h-6,  V. T. C. S., to assistant                           county
auditors,    assistant purchasing      agents,  and adult probation   officers.

          In those counties adopting a civil service             system the Act sets up
a Civil Service      Commission        and gives it the power to make, publish and
enforce    rules relating      (1) to the selection    and classification    of county
employees,      (2) to competitive       examinations,      (3) to promotions,      seniority
and tenure,      (4) to layoffs    and dismissals,      (5) to disciplinary    actions,
grievance     procedures      and other procedureal        and substantive     rights of
employees,      and (6) to other matters         having to do with the selection        of
employees     and their advancement,          rights,   benefits    and working    conditions.
Art.   237213-6, sec.,      8, V. T. C.S.

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

                   ‘Employee”     means any person who obtains his
                    position   by appointment    and who is not authorized
                    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.
                    (Emphasis     added).




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The Honorable      Henry   Wade    - Page   2      (H-619)




          The threshold     question  concerning    the applicability of the act to a
particular   position    is therefore  whether   its occupant “[a] performs     govern-
mental functions      [b] in his own right [c] involving     some exercise   of discretion.”
Green v. Stewart,       516 S. W. 2d 133 (Tex.     Sup. 1974).

          In GE,        the Texas Supreme      Court   addressed     this provision     in the
context of deputy tax assessor-collectors.             The Court     noted the language       of
article   7252, V. T. C. S., which provides         that “[e]ach     Assessor     and Collector
of Taxes may appoint one or more deputies              to assist him.      . . , ” and held this
language     to indicate   that the deputies   “do not act in their own right but in the
right of the assessor-collector.         . . ” 516 S. W. 2d at 135. The Court stated
that “[o]ne who acts in his own right is . . . largely            independent      of the control
 of others,”    516 S. W. 2d at 136, and finding the deputies          not to be so, held
them to be within the definition       of “employee”      in article    2372h-6,     V. T. C. S.

         Article   1580, note,    section   l(g)    (1975 Supp.)   provides:

                   [The county purchasing]          agent may have     assistants
                   to aid in the performance          of his duties.   . .

No means of selection        of these assistants     is provided.       In our opinion
Green compels      the conclusion     that assistant     county pumhasing        agents are
within the definition     of employee    contained     in section l(3) and are subject to
the County Civil Service        Act.   The language      of the statute    providing   for them
is quite similar    to that of deputy tax assessor-collectors.              Assistant    purchas-
ing agents merely      aid the purchasing      agent in the performance          of=     duties,
and therefore    do not act in their own right.

         Article 42.12,     Tex.  Code.   Crim.   Proc.,        the Adult Probation   and
Parole   Law, provides      for the selection   of adult      probation  officers  in section
10.

                      Where      more than one probation       officer   is required,
                   the [district]     judge or judges shall appoint a chief adult
                   probation     officer   or director,   who, with their approval,
                   shall appoint a sufficient        number of assistants       and other
                   employees      to carry    on the professional,     clerical,    and
                   other work      of the court.




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The Honorable      Henry    Wade    - Page    3      (H-619)




                      The judge or judges,     with the approval     of the
                   juvenile  board of the county,      may authorize     the chief
                   probation   or chief juvenile   officer  to establish    a
                   separate   division  of adult probation    and appoint adult
                   probation   officers  and such other personnel         as required.

Section 1 states     that “[i]t is the purpose    of this Article  to place wholly
within the State     courts of appropriate     jurisdiction   the responsibility  for         . . .
the supervision      of probationers.    . .‘I

          The purpose of article       42.12 as set out above is inconsistent           with the
provisions    of the County Civil Service         Act.     The members      of the Civil Service
Commission      are appointed      by the Commissioners           Court,  article    2372h-6,
section 6(a), and the commission            has authority      to enact rules concerning         the
selection   and dismissal      of employees.       In our view the court’s        responsibility
for the supervision       of probationers     includes     these facets of the employment
of probation    officers.     See Commissioners           Court of Hays County v. District
Judge,    506 S. W. 2d 630(Tex.         Civ. App. -- Austin 1974, writ ref’d.,            n. r. e.);
Commissioners         Court of Lubbock County v. Martin,             471 S. W. 2d 100 (Tex.
Civ. App. -- Amarillo         1971, writ ref’d.,       n. r. e.).

         It is therefore   our opinion       that adult probation      officers   are   not within
the application    of the County Civil       Service   Act.

         With respect      to assistant    county    auditors,   article   1650, V. T. C. S.,
provides   in part:

                   The County Auditor        of any county of this State may, at
                   any time,    with the consent of the District       Judge or
                   District   Judges having jurisdiction       as hereinafter
                   provided,    appoint a first
                                              ’     assistant  and other assistants
                   who shall be authorized        to discharge    such duties as may
                   be assigned     to them by the County Auditor        and provided
                   for by law.      In counties where only one assistant        is
                   appointed,    such assistant      shall be authorized    to act for
                   the County Auditor      during his absence       or unavoidable
                   detention   with respect     to such duties as are required       by
                   law of the County Auditor.         . .




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The Honorable      Henry    Wade    - Page    4   (H-619)




                        The County Auditor     shall prepare     a list of the
                   number of deputies       sought to be appointed,       their duties,
                   qualifications    and experience,      and the salaries     to be
                   paid each, and shall certify       the list to the District
                   Judge, or in the event of more than one District              Judge
                   in the county,     to the District   Judges,    and the District.
                   Judge or the District      Judges shall then carefully        consider
                   the application     for the appointment      of said assistants     and
                   may make all necessary         inquiries    concerning    the qualifica-
                   tions of the    persons    named,     the positions    sought to be
                   filled and the reasonableness         of the salaries    requested.     . ,
                   no assistant    shall be employed       except in the manner
                   herein provided.

         In our view the first asaistant      is assigned    sufficient    statutory   duties
in his own right to be within the exception        to the definition     of “employee”
contained   in section l(3) of the County Civil Service         Act.    See Pfeffer     v.
Mahnke,    260 S. W. 1031 (Tex.    Comm. App. 1924).           The rezning         assistants
would not be excepted,     for responsibilities      of their positions      are derivative
of the duties of the county auditor.      -See   Green   v.  Stewart,    supra.

          In addition,    in our opinion no assistant         county auditore     who are within
the scope of article       1650 are subject to the County Civil Service             Act.    Article
1650 was last amended in 1973. Acts 1973, 63rd Leg.,                      ch. 339, p. 765.       The
Legislature     has made clear that assistant            county auditors     are to be selected
under the supervision         of the district    judges,    and “no assistant      shall be
employed ” in any other manner.              The County Civil Service         Act cannot have
impliedly    repealed    article    1650, since the latter article         was amended      sub-
sequent to the enactment          of the body of the former         and concurrently      with
its amendment.         Furthermore,       since both statutes are in effect,           the more
particular    provisions     of article   1650 must control        over article    2372h-6,
for the latter applies      to county employees          in general.     Forwood     v. Taylor,
 214 S. W. 2d 282 (Tex.        Sup. 1948); State v. Balli,        190 S. W. 2d 71 (Tex.      Sup.
1944) . Aseistant      County Auditors        are therefore      not within the application
of Article    237211-6, the County Civil Service            Act.    Attorney    General    Opinion
M-1088 (1972) is overruled          to the extent it conflicts.




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        The Honorable    Henry   Wade   - Page    5     (H-619)




                                          SUMMARY

                         Assistant    county purchasing      agents are subject
                         to the County Civil Service       Act, while adult
                         probation    officers   and assistant    county auditors
                         are not.    Attorney     General   Opinion M-1088 (1972)
                         is overruled      to the extent it conflicts.


                                                              Very   truly     yours,




                                                        / /   Attorney       General    of Texas

    APPROVED:




        Opinion   Committee

        jwb




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