     OFFICE   OF THE ATrORNEY     GENERAL   OF TEXAS
                         AUSTIN




Mr. Adam R. Johnson
Executive Direotor
State Department ot Publio Welfare
Austin, Texas
Dear Sir:




           We are in reCe1
1940, requesting  the opin
quote at some lsngthr
                                         t to the S001aJ.
    SeoUdty AOt,                         Board adopted,




                                     atlons to effectuate
                                  ce with these minimum
                                   by the State agencies
                                   the publio-asslstsnoe

                    Department of Publia Welfars, in
                   ss minimum standards that must be
                   aacordfng to the language or the
                   elves, as adopted by the Sooial
                    has some to the aonolusionthat
    to effeot complisnoewith these standards our
    present personneladmlnlstrationon a merit sys-
    tem basis, which has been in operation for Borne
    time, must be materiallyrevised. If the State
ES* Adem 3. Johnson, page 2



    Department of I‘ublloWelfare Is legally em-
    powered to adopt ssme, the follotingmerit
    system organizationwill have to be adopted,
    or one substantiallyslmllar to it, In order
    thct the Department can meet the mlnlmum
    standards of the Social Security Board:
         "The State Departmentof Public Eelfare
    ~3.11establish a merit system for personnel
    administration,to be admlnistered by an im-
    partial body, to be known as the *liarItSystem
    Counoll,* end to be composed of three msmbers
    Eho will be appointed by the Departrmnt for
    overlapplngterms of two, four, and six years
    for the original members of the council, and
    upon expirationof these terms sucoessors to
    members will be appointedfor lndlvldualterms
    of six years each. These lasmbersof the Xerlt
    System Couuoll will be drafted from the oltlzen-
    ship of the State of Texas, no members of whloh
    Council mill be otherwlss employed as sn offl-
    01al or employee of the Departnmnt.
         The function of this Council will be to
    act as a st~pervlsorybody in connectionwith
    the aonduotlng of open and competitiveexemlna-
    tlons for all applicants for various positfons
    to be filled by the Departmentfor the purpose
    of determining quallfiedbellgfble persons, from
    whose number recruitment of personnelfor the
    State Departmentaan be effected. It will also,
    necessarily,sit aa an Appetals CounOil   In all
    matters of appeals by applicants for positions
    whose applloatlonsfor admission to an antranoe
    or promotional examinationhave been rejeated,
    end in oases of dlssatlsfaetlonon the pert of
    permanent employeeswho have been dismissed,sus-
    pended, or demoted by the Departmsnt. In efl
    cssss of appeals, the Council will have to oon-
    duct hearings, and after said hearings tillraake
    Its reoommendatlonsIn writing to the appointing
    authority of the Department, the EreOutiV~   ?i&O-
    tar, for aonslderatlonby the Department.
    reoommendatlonwill be considered by the Depart-
    ment, and the Department'sdeolslon in the matter
    in which the hearing was held shall be final*
LIT.   kdem R. Sohnson, page 3


            "For the purpose or admlnlsterlngthe open
       and competitiveexamlnatlons,a Merit System
       Supervisorwill be appointed by the Department
       upon the recozmendstlonof the Merit System Coun-
       011. Under this person's supenlslon open and
       competitiveexaminations,In order that the mI.nl-
       mum requirementsof the Social Seaurity &ard*s
       standards oan be met, will inolude a praatfaal
       wrltten test and rating of tralnlng and experlenoe
       for the more responsiblepositions;and oral ex-
       aminationsfor persons requiring frequent aontaat
       with the publlo,.orwhich involve &sports& snp-
       ervlsory or admInIstratIveduties, and a perfor-
       manoe test for positions Involvingthe operations
       of office maohfnes.
            *The ?SerltSystem Supervisorwill prepare
       and establishregisters of ellglbles In the order
       of their final soores as made on the examinations
       end till maintain the registers, mskt certlfioa-
       tlon of ellglblllty snd keep all exsmlnatlon
       records. 811 positionswhich are not speolI'loally
       exempted by the mln%mum standards of the Soalal
       Seourlty act, within the DepartPeat of Public Wsl-
       fare, ere to be filled from resgistsrsof eligibles,
       except for emergencyand provisionalappointments
       for limited periods. When the Department of Pub-
       llc Eelfare signifies Its Intentionto make an
       appointmentto any positionto the Merit System
       Supervisor,suoh appointmentwill be made by
       sefeotlonfrom names of persons ox the appropriate
       register. The eonduatingof these exsmlnations
       will be administeredby the Xerlt System CounCll
       through the Eerlt System SupervIsor, and appoint-
       ments Hill be made by the Exeoutfve Dlreator of
       the Departmentof Public Eelfare from persons
       certlfledas ellglble for appointmentsby the
       Xerlt System Su ervlsor upon request for sanm by
       the Director. 8he elIgI.billty of an employee for
       promotionwill be determinedon recomDseAdatlon     Of
       the Departmentand oertlfleationby the XeXit
       System Supervisor that the emplo ee meets the
       mlnlmum requirementsand Is qualffied fOX promo-
       tlon to the class of position in question. In
       order to comply with the mlnlznm reqUuiramtents of
       the Soolal Seourlty Doard's standards, the Depart-
                                                         87



Xr.   ,dcse '2.   Johnson, page 4


      ment till clnaslfyall position8 and establish
      a comprehensiveplan for aompensetlonfor all
      ChSS%S Of >OSitiOnSwithiuth8 limits Of the
      provisionsof the biennial appropriationa&.
      The expenses incident to the operation of this
      merit system, Including the expenses of the
      Merit System Council, the bLeritSystem Super-
      visor, and its necessary personnel,will be met
      by the Stat8 Departmentof Public Welfare out
      Of DIOnieSin the State D8pWtm8nt Of Public
      ti81faP8Fund.
           "In S8tta up a merit System organization,
      it is necessary that the St&e Department oi
      Fublio ;$elfareadopt rules and regulations, un-
      der the requirementsof the Social Security
      Board, that will govern the Writ System Counoil
      end the Merit System Supervisor and insure con-
      tinning compl5.ancewith the minimum standards or
      the Social Security Board, and insure the Me-
      pendent adminlstretfon0r a merit system ror
      personnel edmlnlafrationinvolving the cocduot-
      iw Or the above mentioned 8XaminatiOnSby the
      Kertt System Supervisor under the supervlalonor
      the Zerlt System Council,with appointmentsto
      any and all positions destred to be filled by
      the Departmenthaving to be made through selee-
      tion Prom a limited number of the highest avail-
      able eligibleson the appropriateregister main-
      tained by the Merit System Supervisor.
           'A copy or the Standards for a ESeritSystem
      0r Personnel Mmlnlstratlon In Stat8 Employment
      Security and Stat8 Publia kssistsnae Agenaies,
      hereinabovereferred to, Is enclosed for your
      considerationLn connectionwith the following
      questions:
           '1. ooes the State Eepartmant oi Fublie
      Welfare have authoritytier the law oreating
      this agency end the general lawa or the State
      o? Texas to establish by rule and regulation
      such a treritSystem Council as is required by
      the ininlmumstandardsof the Soaial Seaurity
      Board and to adopt such a merit system organiza-
      tion as is hereinaboveoutllned, in orQsr to
      oonqly with those minimum standards?
?r
al- .   %dam 2. Johnson, p8ge 5


             “2. I.oesthe Depnrtstent of ?ubllc 'Welfare
        have authority to appoint members of a kerlt
        System Council, end, ii so, does It have euthor-
        ity to appoint them for definite, stated over-
        lapping terms; end will the appointingpower
        rest with the Erecutlve Director of the Depert-
        nent or with the State Board of'Public Welfere?
             "3. Does the State Department of Publio
        Yielrarehave authority under the laws of the
        St&t% to expend monies out of the State Depart-
        ment of Public '&'elrere
                               Pund to defray expenses
        of the Rerit System Counall, the salary and
        expenses of the kerlt System SupervIsor, end the
        perSOMe necessary to be employed to edmlniater
        the merit system orgenlaetlonhereinaboveset
        out, or one substantiallysimilar to it, which
        would be necessary to comply with the minImum
        standards of the Social Security Board?
             "4. Will the method of oonductlng open
        end oompetitiveexaminetlona,as outlined above,
        end the aeleotion or persons to riu positions
        within the Departmentfrom a limited number of
        the highest available eligibles on the appro-
        priate register, kept by the Eerlt System Super-
        visor, as compiled f'r0nth8 results Or the ex-
        8mlnatlonataken, operate es an unlawful reatrlo-
        tion on the eppolntive power delegated to the
        Recutire Direator by the Public Welfare Aat or
        1939 (Senate Bill No. 36, Acts, 46th Legislature,
        Regular Session), seid exeminetionaaud method
        of s.electlonof personnel under the reoited
        merit syat8m organization being efieotive only
        by operation or rules and regulations adopted by
        the,State Board of Publio Welters end not other-
        wise erfeativethrough operation of law?"
          The Public Welfare Aot of 1939, Senate Bill No. 36,
General Law% of Texas, Acts 46th Legislature,p. 344, creates
the Departmentof Publia Welfare conslating of a vStete Board
of Public Welfere, BP Rxeoutive Dlreotor, and auah other of-
ficers end employees es mey..berequired to etflolentiyaerry
out the purposes of this Aat." Sea. 2a. The State Poerd of
Public Weliare consists or three m8mbers appointed by the
Govepnor, with the advim end COnSent Of the Sen6t8, for six
year overlappingterms. Th8 Executive Dlreotor ai the De-
pertint or Publia Welfare is the wezeautiveand adminlstra-
Ur. Adam R. Johnson, page 6


tive officer of the State Deparknent and shall discharge
all administrativeand executive functions of the State
De~rtment.R He is seleated and aDDOinted by the State
Do&d with the advise and consent b? the Se&e and &ervBs
"at the pleasure of the Board.'
           The followInS pertinent provisionsare found In
the Act:
         Wet. 3. b. The Board shall be responsible
    ror the adoption of all policies,rules, ana re-
    gulations for the governzmnt of the State Depart-
    ment or Fublic Weltare.
         c. The Board, its agents, representatives
    and employees shallconetltute the State Depar&mnt
    of Fublla Xelfara and whenever, by any of the pro-
    visions or this Act, or of any other Act, any
    right, power or duty is imposed or conferred on
    the State Department of F~ubliawelrare, the right,
    power or duty so Imposed or aonferred shell be
    possessed and exercised by the Executive Director
    unless any such right, power or duty is apeolfi-
    oally d818g6tSdto the duly appointed agents or
    employees of such departnrant,~or  any of them by
    this Act OP by an appropriaterule,    regulationor
    order or the State Board.
          “880. 4. The lheoutlve Director shall be
    the executive end edmlnlstretlveorfiaer of the
    State Department. T%8 Tbceoutlve Direetor, sith
    the consent and approval or a majority or the mem-
    bers of the Board shall:
          a. Classify all positions in the admfnistre-
    tion or this Act;
          b. Fix objective standards ror all positions
    inaluded in the~classificatlon;
          a. Formulate salary schedules for the ser-
    vices so classified,subjeat to biennial epproprie-
    tlons;
          d. Provide for a iair and impartial seleation,
    appointment,retention and promotion of'personnel
    in eocordanoe with the classiilcetionend compense-
    tlon plans therein before provided.
         WSea. 5. The State Department shall be aharged
    wfth the admInIstrationor the ~welraresctivlties
    of the State as hereinafter provided. The State De-
    pertm8nt shall:
         6. Establish and provide such method of local
    adizlnistrationas is deemed advisable, end provide
xl-.AdRm R. Johnson, page 7


    such personnel as may be found neoessary for
    carrying out in en economicalway the admln-
    istration of this Bat; provided however, that
    all employees of the Depart=& shall have been
    residents of the Stat8 of Texas for a period of
    at least four (4) years preceding their appoint-
    ment . . ."
          V.eo. 6. There shell be created in the
     State Department of Public Welfare the following
     Divisions:
          a. A Division of.Tubllc &sistennoe;
          b. iiDivision of Child Welfare;
          c. A Division of Res8arch end Statistics,
     and such other Divisions as the Executive Dlreo-
     tor may find neoessary for effeotive administra-
    tion. The Eneoutlve Director shall have the
    power to allocate adl reallocate funotions amo
    the Divisionswithin   the Department and have t%
      ower and authority, subjeot to olassification,
      o seleot. avuoint. and discharge suoh sistants
    clerks, St8nograDherS.auditors. bookket:ers.and'
    clerical assistants as may be neoessary 1n the
    a&mlnistratlon of the duties imposed upon the
    State DaPartmentof Public Welfare within the
      imits of the appropriationsthat may be mad8 for
    the work of said Department; salaries of all such
    employees to b8 fi d b the E!xeoutlve   Director
    in keeping with sa%lel paid other State employees
    performing llk8 work and holding similar positions.
    (Underscoringours)
        Veo, 10. The State Departawntof Welfare
   is hereby designatedas the State agency to oo-
   operate wliththe Federal Government in the admin-
   istration of the provisions of Title I, Tltla IV,
   Part 3 of Title V, and Title X, of the Federal
   *SocialSeourity Act* and of the provisions of
   such other Titles of the Federal *Social Seourity
   Act' as may be adeea thereto from time to tlme,
   in the event no other State agenoy is by law de-
   signated to oooperate with the Federal Government
   in the administrationof the provisions of such
   Title, or Titles as msy be added to the *SoaLa
   Seourity Act* and the Department ie dlreoted to
   enact and promulgate suah rules and regulations
   as may be neoesseryto effect the cooperatione
   herein outlined and designated.
hr. Adam R. Johnson, page 8


           "The State Departauentof Welfare is hereby
     authorizedand direSted to cooperate with the
     proper departmentsof the Federal Government
     and with an other departm8nts of the State end
     local governments in the 8nforC8aBnt end admin-
     istration Of suoh provisions Of the Federal
     'SocialSecurity Aot,' and any a;aendnBnts  there-
     to and the rules and regulations issuedthere-
     under, end in compliancetherepoith,in the manner
      resoribed in this Act or as otherwise provided
      y law." (Underscoringours)
             The i?ai8outive
                           Direotor as ohief administrative
and 8XeoUtiV8    QffiO8r, under the prOViSiOn   of the abOV8
Aot i# aharged with the duty of seleoting, appointfng,
fixing the salary and dlsoharging suoh assistants or oth8r
@4'@Oy88S Of th8 D8paddZ8nt Qs !IUiy   be n8C8SSary in the pro-
per admiaistratfonof the act. Granted suah power, we do
not think it must be arbitrarily 8XerCiS8d by the Exsoutive
Dfrsator but he may In hlpldiscretion,through rule or re-
gulation,    establish and maintain a system  or preatlos where-
by the eppOintiV8 power vested in him may bs sffioiently
EdIdiIlt  Cl&ently 8X8rCiS8d. Tim appolntive powsr mey set
standards and inquire into the qualifiaatioxmof hia pros-
pective appointees or employees as ti hi8 discretion may be
proper.
          Seotion 4 shows a eleer legislative intent that
some system be establishedby the,D8Rartm8nt for the se-
leation and ezuploymentOf dspertvsantalpersonnel. Rot only
Is the Ereautive Director to fix standards for the positions
olassifiedbut he is direotsd to vprovide for a faiF end
Impartial seleation, appolntmSnt,retention and promotion
or p8rsonn8l."

          That SOm8 system may be 8mployed by the aDpOintiV8
power Is apparfmtly recognized by your department sin08 you
state in your letter that to aomply with th8 Soaid s8euFity
Doerd standards *our present personnel administrationon a
merit systsm basis whloh has been in oqeretion for Some
time must be materLlly revised,* however you do not state
in what particulars.
          It ia 8qU&iy  olser that the Executive I)irsotor
may employ or secure sucrhassistance as mey be necessary to
properly axamine appliaants,determlne thefr quallfioations
and make recommendationstoguide him fn performing th8
duties Imposed upon him by Zaw. Ministerial duties may be
Xr . Adem a. Johnson, page 9


delegated to such subordinatesbut their actions must
be subservientto the will, direotion and oontrol of
the dominant authority whom they serve. Their recom-
mendations may be strictly followed as a matter of
polloy or praatice but whether in any partlaular in-
stanae this will be don8 must be determined by th8 per-
son or board upon whom the Lsgfs~ture has impoS8d the
duty of selecting, appointing,promoting or discharging
p8rSOlKi81.
          AS we understand the mlnimum requirementsdls-
cussed in your letter and oontelned in the pamphlet en-
titled "Standards for a Herit Syst8m of PerSonLIe1i&ain-
istration in Stat8 EmploymentSecurity end Stat8 Publie
ASSiStaWe Agenoies,v dated NW8&3r 1, 1939, the merit
system propoS8dto be established by rule or regulation,
however, is to be admlnistersdfree of restraint or con-
trol by the Pxeoutive Director or Stat8 Board once it Is
established. This being true our Opinion Ho. O-1752
praotioallydisposes of the iSaUeS herein presented,the
odly distinotlon be%ng that in this instanoe the Depart-
ment of Publio Welfare would establish a Merit system
Counoll while under the feats in that opinion it was
contemplatedthat youx departzmntend the Texas Unem-
ployment CompensationCoapclisslonwould establish a Coun-
cil by joint aation. Our former ruling was not baaed 60
mueh upon the jofnt action by the two boards as the in-
herent nature of the plan itself'.
          Article III, SeCtiOn 1 Of the ConStitutionOf
Texas vests the LeglsLativeparserof this Stat8 in "The
Legislatureof the Stat8 of Texa6.v Thfs poWr being SO
V8St8d is exoluslve,and the Departmentof Public Welfare
is without authorityto create a separate and distinat
board or body not itself a part of that D8parta?ent,and
subject to its control. It oannot further delagate to
such independentbody the discretionarypowers and duties
speaificallyprovided by lawta be performed and exeraised
by the Department or Public Welfare, Its ofrfaers and sm-
p1oyees.
          It is aontsmplatedby the proposed x&Wit syst8m
as set out In the bulletin of November 1, 1939, that a
Eerlt System Supervisorwill b8 appointed, UpOn the reCim-
mendatlon of the Merit System Counall, who will.admit ap-
plicants to exatnfnations,sondut& ths examinations,and
give rstlnga. Tt is provided that:
                                                             . I.,




xr   .   Y&m X. Johnson, page 10


              "yhe Zerlt System Supervisor will prepare
         and establishregisters of eligibles in the
         order of their final scores and will maintain
         the registers, make oertificationof eligibles,
         and keep all examinationrecords.
              "All positions, not speoifloallyexempted
         herein, are to be filled fromregisters of eli-
         gibles, except for emergency ana proviarional
         appointmentsfor lImited periods. Appointments
         will be made by selectionfrom a limited number
         of the highest available eligibles on the appro-
         priate register."
          Sucoessive emergenoy or provlslonal appointments
may not be given to any individual,and present employees
may be retained provided they attain passing grades in ex-
aminations.
           True, the officer upon whom the power and duty
is imposed by statute Is allowed the final act of making
a selectionand appointmentfrom a restrloted and limited
number of "the highest available ellgIblesncertified by
the Xerlt System Supervisor but the Legislature has pro-
vided that the power and authority to select and appoint
shall be subject only to olassificationor other lImIta-
tions contained in the Act, the classificationsto be made
by the Exeoutive  Directorwl.ththe oonsent and approval of
the state  Board.

          The plan further restricts the exercise of the
statutory auties Imposed upon the appointire power since
It olearly contempletesthe obtaining of a permanent
"status- or employment. The appointee first shall serve
for a fixed probationaryperiod, after wh.Ich,upon an
evaluation in writing, the employment shall beam@ pal%@-
nent. Having acquired a permanent status tte employee
WI11 not be subject to removal except for oause, unless
separated for reasons of curtailment of work or laok of
funds. In the event of removal, permanent employeeswill
have the right of an appeal to an Impartial body through
an established prooedure provided for In the merit system
rules."
          Clearly, an officer of this State In whom the
legislaturehas vested certain powers and duties may not
abdicate and by rule or regulation delegate the &5oretIon-
ary fun&Ions Imposed upon him and thereby bind hImself and
Mr. ddam R. Johnson, page 11



his successors in offloe. Such is the apparent purpose
of the foregoing provisionswhich seek to establish a
permanent personnel subject to removal only for cause,
with a right of appeal to an *lmpartlal body” unknown
to Texas law.
          Your first question is answered In the negative
and it therefore beoomm umeoessary to give specific an-
swers to your remalnlng questions.
                                    yours very tNly
                               AlTORNEY GR?WAL OF TMAS


                               3Y
                                               Assistant
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