The Honorable Henry Wade           Opinion No. H-995
Criminal District Attorney
Dallas County                      Re: Applicability of
Sixth Floor, Records Building      civil service laws to
Dallas, Texas 75202                employment of deputy
                                   sheriffs.

Dear Mr. Wade:

     You have requested our opinion concerning the appli-
cability of the County Civil Service Act, article 2372h-6,
V.T.C.S., to deputy sheriffs in Dallas County.  In counties
adopting a civil service system under the Act, a civil
service commission is authorized to make and enforce rules
relating to selection, promotion, discipline, and dismissal
of employees, as well as other matters pertaining to em-
ployment and working conditions. V.T.CIS. art. 2372h-6, 9
a. The County Civil Service Act applies to employees,
defined to include

          any person who obtains his position
          by appointment and who
                              --- is not authorized
          b statute to perform
          9 unctions iiihis own
          some exerczeof - di&retion   . . . .

V.T.C.S. art. 2372h-6, 5 l(3).   (Emphasis added). The under-
lined language excludes from the operation of the Act one
who (a) performs governmental functions, (b) in his own right,
 (c) involving some exercise of discretion.  Green v. Stewart,
516 S.W.Zd 133 (Tex. 1974). In construing tEZE-ra=uage,
the Supreme Court also relied on a definition of employee
which it had used to distinguish "employee" from "officer"
in interpreting article 16, section 30 of the Constitution.
See
-    Aldihe independent School District v. Standley 280
S.W.Zd 578 (Tex. 1955). One's status aran office; is
determined by "whether any sovereign function of the govern-




                       p. 4096
The Honorable Henry Wade -~page 2   (H-985)



-ment is conferred upon the individual to be exercised by
him for the benefit of the public largely independent of
the control of others." Green 5 Stewart, supra, at 135.
Our task is to determine whether a deputy sheriff is an
employee as defined by article 2372h-6, V.T.C.S., and the
Supreme Court in construing that Act.

     Article 6869, enacted prior to the County Civil Service
Act, describes the powers of deputy sheriffs and provides
for their appointment and termination:

          Sheriffs shall have the power, by
          writing, to appoint one or more depu-
          ties for their respective counties,
          to continue in office durinc the
          pleasure of the sheriff; who sha~ll
          have power and authority toperform
          all ---
              the actznd   duties oFtheir


          the duties of his office, take and
          subscribe to the official oath. . . .

(Emphasis added). A deputy sheriff is "a public officer
invested by law with some portion of the sovereign functions
of the government, to be exercised by him for the benefit of
the public." --Rich v. Graybar Electric Co., a4 s.w.zd 708
(Tex. 1935); Murray v. State, 67 S.W.Zd 274 (Tex. Crim. App.
1933); -see also Murra v. Harris, 112 S.W.Zd 1091 (Tex. Civ.
App. -- Ama-     -ix+--.
                    38, writ dism'd). We believe that case
law clearly makes the deputy sheriff an officer.

     We also believe that he performs "governmental functions
in his own right involving some exercise of discretion" and
thus is not an employee within the terms of article 2372h-6,
V.T.C.S.   He is "invested by law with some portion of the
sovereign functions of the government."   pray   v. State,
suora at 216. The Code of Criminal Proce ure imposes on him
manyduties   that require him to exercise discretion and act
independently of the control of the sher'iff.
Crim. Proc. arts. 2.12, 2.13, 2.14, 2.17, .2.18x.

     The deputy sheriff performs governmental functions in
his ownright, and not in the right of the sheriff. In
Gr~e~env.
       - Stewart, the deputies appointed "to assist" the tax




                        p. 4097
The Honorable Henry Wade - page   3   (H-985)



assessor-collector did not act in their own right. A deputy
sheriff, however, does not merely assist the sheriff, but
has  statutory authority to perform all of his duties. -
.~ .__                                                    See
Nail1 v. State, 129 S.W. 630 (Tex. Crim. App. 1910). His
autiesxre   assigned him by statute., and not by delegation
from the sheriff. See Pfeffer v. Mahnke, 260 S.W. 1031
 (Tex. 1924); AttornFGeneral    O&ion    H-619 (1975). The
sheriff cannot in fact limit his statutorily authorized
duties and powers. Trammel v. Shelton, 45 S.W. 319 (Tex.
Civ. App. 1898, no writ). AEhough      some of the deputy's
official acts must be done in the sheriff's name, he can
convey property under his own name following an execution
sale. Compare Herndon --v.~ Rewed, 18 S.W. 665 (Tex. 1891) and
Miller v. Alexander, 13 Tex. 497 (1855) with Cortimi lia'-
ml=,        326 S.W.Zd 278 (Tex. Civ. App. --9,
                                             -- Houston 1
G m'see -- 'also Attorney General Opinion O-5394 (1943).

     We are aware that some courts have defined "deputy" as
one "who exercises an office in another's right." Sanchez
v: Murphy, 385 F. Supp. 1362 (D. Nev. 1974); Trammel1 5
E-2&        c;:;"t;y+    of New York, 45 F. Supp. 36,6 (E.D.
                       Leonax   mS.W.     706 (MO. 1909). We
have not fouiiii    case in which a Texas court has adopted
this definition of deputy, and we do not believe it applies
to a deputy sheriff in Texas. The Texas courts have instead
emphasized that the deoutv is the sheriff's alter eoo.
Heye v. Moody, 4 S.W. ?!42-(Tex. 1887); Bigham v. State, 148
S.W.2d 835 (Tex. Crim. App. 1941). In any case, judicial
definitions of "deputy" in statutes governing other offices
do not necessarily apply to the deputy sheriff, who holds a
common law office and whose role is to some extent defined
by case law, of which statute is merely declaratory.    Rich
v. Grayb;r Electric Co., supra; Blackburn v. Brorein, 70
So. Zd 2 3 (Fla. 195x     We conclude that zputy sheriffs
are not employees within the terms of the County Civil
Service Act. Our opinion is consistent with the decisions~
of courts in other states that deputies with duties equal to
the sheriff's are not covered bv civil service ~reaulations.
Blackburn v. Br'orein, supra;
321 N.Y.S.m   mp.       Div.
Service § 15: 70 Am. Jur.Zd, Sheriffs,Police    and Constables
5 2.   In reaching this conclusion, owe have considered only
those deputies vested with governmental functions. We have
not considered aooointments like those made bv the countv
tax assessor-coliector in Green v. Stew~art, who deputized
all employees in his office, including typists and file
clerks.




                       p. 4098
The Honorable Henry Wade - page 4     (H-985)



     We need not answer your remaining questions, which
were premised upon a finding that the~county Civil Ser-
vice Act applies to deputy sheriffs. Attorney General
Opinion M-1088 (1972) is hereby overruled to the extent
inconsistent with this opinion.

                          SUMMARY

            The County Civil Service Act, article
            2372h-6, V.T.C.S. does not apply to
            deputy sheriffs.
                              -Very   truly yours,




                                Attorney General of Texas

APPROVED:




DZ~gg---                t Assistant




c. ROBERT HEATH, Chairman
Opinion Conanittee




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