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DAN MORALES
 .,lTGRNEY
        GENERAL                             April 19.1996

       The Honorable Steven C. Hilbig               Opiion No. DM-385
       Bexar County CriminelDistrict Attorney
       Bexar County Justice Center                  Re: Whether a deputy consteble may be
       300 Dolororq Suite 5072                      clasdied as an “emp10yee” pumuant to
       San Antonio, Texas 78205-3030                clulpta 1% of the Local Govemment
                                                    code @Q-849

       Dear Ml. Hilbig:

               You ask whether the civil service commission (the “commission’*)in a county that
       has created a civil se&e system under subchapter A of chapter 158 of the Local
       Govemment Code (the “code”) but has not expanded the system under section 158.007 of
       the wde may adopt a rule defining deputy constables as “employees” covered by the
       systan.   We believe such authority is found in code sections 158.001(2) and
       158.009(a)(1).

               Code section 158.002 authorizes ‘[a] couoty with a population of 200,000 or
       more [to]. . . aeateacountycivilsavicesystemtoindudeirlltheemployeesofthe
       countywbaannotacempted~mthe~~bytheacpresstamsorjudicial
       interpretdons of this subchapter or by the operation of Subchapter B.” Before turning
       our attention to the meaning of emploveesas used in subchapter A and “the express terms
       or judiciai interpretations of this sub&apt&,” Local Gov’t Code 8 158.002, we note that
       subchapter B does not operate to exclude deputy constables from a subchapter A system
       As we said in Attorney General Opiion DM-338.

                  [s]ubchapter B permits a sheritl’s department in a county of more
                  than 500,000 residents to create a civil service system, m    Gov’t
                  Code] 8 158.032. that covers “employees,” id 6 158.035. who are
                  de&ted as employees of the sherifFs department, including deputy
                  sheriffs, id. 5 158.031(3). Section 158.040 provides that a sherifh
                  department civil service system “created under.. . subchapter [B]
                  and in effect” applies to the exclusion of any other civil se&x
                  system in the county.

       Attorney Gene& Opinion DM-338 (1995) at 67. Section 158.040 thus excludes an
       employee of the sherifh department covered by a subchapter B civil service system from
       the coverage of a subchapter A system in the county. Deputy constables are not
       “employees”under subchapter B for the reeson that they are not employees of the sherifh
       depestment, so they cannot be excluded f?om a subchapter A system by virtue of the
The Honorable Steven C. Hilbig - Page 2          (DM-385)




exhnce of a subchapter B system. Therefore, for purposes of your question, it does not
matter whether the camty has created a subchapter B system.

      Now we will consider whether deputy constables are “employees of the county,”
Local Gov’t Code 8 158.002. Section 158.001 detlnes emplqwe, as used in ~~bchapt~
4m
            a person who obtains a position by appointment and who is ‘not
            au*         by statute to pedolm govanmmtal limctions involving an
            ~ofdiscretioninthe~n’sownright,unlersthe~nis
            includedbyaloclllcivil~~rulerdoptsdundatheproadunr
            outlined in !Jection 158.009, or a person inch&d in the coverage of
            acountycivilsavicesystemilstheresultofMclcctionheldunda
            Section 158.007. The term does not include a person who holds an
            office the term of which is limited by the constitution of this state.

Id. 8 158.001(2). Thus, an “employee” in a county that has a basic subchapter A civil
~servicesystemisapemonwho

 1. “obtains a position by appoim”
2. “is not authorized by statute to perform governmental tImctions involving an exercise
      ofdiscntioninthepason’sownright,unleu,thepenonisincludedbyalocalcivil
      service rule adopted under the procedures outlined in Section 158.009,”and
3. does not “holdn an office the term of which is limited by the constitution of this state.”

Id.  Deputy constables do obtain their positions by appointment, see id 45 86.011.
151.001, and do not have a “term” of office, see Attomey General Opiion DM-338
(1995)11t6. TheytheregoremeettheiirstandthirdrequiraMltslistedabove.            Onthe
other hand, they are “auth0liz4?dby statute to perform govemmental tiJnctions involving
an exercise of dkcretion in the person’s own right,”Local Gov’t Code 0 158.001(2). The
court in Arlington v. County of Duk, 792 S.W.2d 468. 470-71 (Tex. App.-Dallas
1990. writ denied), held that a deputy constable is not an “employee” under section
158.001 in a county that has adopted a basic civil service system because the deputy
performs govmmmtd iimctions in his or her own right and by use of disc&on

        The Arringtran court, however, applied the subchapter A deflnition of emplqvee as
it existed before section 158.001 was amended in 1989. See id at 469; cj. Act of
May22,1989, 716 Leg., RS., ch. 881. 1989 Ten. Gen. Laws 3879. In I989 the
legiskum added to the definition of empkye in s&ion 158.001(2) the phrase “unless the
person is included by a local civil senke rule adopted under the procedures outlined in
Section 158.009.” Act of May 22, 1989.71st Leg., RS.. ch. 881. 8 1, 1989 Tex. Gen
Laws 3879, 3879. In the same statute the legislature amended code section158.009 to




                                           p. 2115
The Honorable Steven C. Hilbig - Page 3        W-385)




add “the definition of a wunty employee”as a category of rules that the wmmission is
authow to adopt. Id. 8 2, at 3879.

        Time   1989 medmenb        e.xpmdyautlwriaethewmmissiontoexpandthe
d&nition of empIoveeto in&de a person who holds a position by appointment and who
does not “hold0 an office the term of which is limited by the constitution of this state,”
Local Gov’t Code 8 158.001(2), but who other&se would not &II withinthe definition
because the person is “authorized by statute to paform governmental iunctions involving
anexer&eofdiscmtioninthe~n’sownri&”id                 Wewnchulethatawmmksionin
awuntywithrbapicsubduptaAcivilBavicesystanmayhdoptaruledefiningdcputy
wnstables as “employees”wvered by the system. Upon adoption of such a rule, deputy
wnstablea become “employees”for purpoms of subchapter A

       Fhlly, we must consider whether “the express terms or judicial interpretations
of... subchapter”A, id. Q 158.002, exempt deputy wnstables from the wverage of a
basic sulxhapter A wunty civil service system. There are no such “express terms” in
subchapter A; nor, since the 1989 amendmen@has any wurt so inteqreted subchapter A
We therefore wnclude that when the wmmission in a basic subchapter A system adopts a
rule defining deputy wnstables as “employees,”the deputy constables bewme subject to
the coverage of the civil service system.

        You contend that @re is a wntlict in section 158.001(2)between the clause “who
is not authorized by statute to perform governmental timctions involving an exercise of
discretion in the person’s own tight” and the clause “unless the person is included by a
local civil service mle adopted under the procedures outlined in Section 158.009.” You
Cuther wntend that the former clause is restrictive and under the rules of statutory
wnstruction wntrols over the latter clause. which you say is broader. We Snd no wngict
behveen the two clauses, however. The conjunction unless as used in section 158.001(2)
limitsthenachofthefonnerclausetocwntycivilsmiw~~inwhichthaeisw
“acampanying ciramutance or conditionthat”a civil service rule includes the pa-son in
the definition of emplqve. WEBSTER’NIMH
                                      S     NEW CoLLEouTEDICTlCsMRY1292
. (1989) (detining nnfess). We therefore tind no need to resort to rules of wnst~ction to
  harmonize the two clauses.




                                         p.   2116
The Honorable Steven C. Hilbig - Page 4     (DM-385)




                               SUMMARY
             Awuntycivilaeniccwmmissioninawuntywithabasiccivil
         serviceaystancreatedunderaubchapterAofchapter158ofthe
         LocalGovamnentCodemayadoptandede6ningdeputywnstable-s
         as”anployedwveredbythesystem.              Whenthewmtycivil
         suvicewmmi.isioninabasicrubchaptaAcivilservicesystem
         adopts a rule defining deputy wnstables as”anployees,” the deputy
         wnstablesbewmesubjecttothecovemgeoftbecivilse&esystem.




                                                 DAN MORALES
                                                 Attorney Generel of Texas

JORGE VEGA
FvrtA#SiSUAnonyrGelWil

SARAH J. SHIRLEY
chllir,Gpinion~ttee

PrepamdbyJamesB.Pinson
-AttomeyGald




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