                                ATTORNEY GENERAL                     OF    TEXAS
                                             GREG        ABBOTT




                                               September 27,2004



The Honorable Bill Hill                              Opinion No. GA-0254
Dallas County District Attorney
Civil Division                                       Re: Whether a civil service commission’s authority
Administration Building                              under section 15&035(l) of the Local Government
411 Elm Street, 5th Floor                            Code to adopt and enforce rules relating to the
Dallas, Texas 75202                                  “selection    of employees,” impermissibly intrudes
                                                     upon the sheriffs authority to select assistants, as
                                                     discussed in Attorney General Opinion GA-0037
                                                     (RQ-020%GA)


Dear Mr. Hill:

       You askwhether acivil servicecommission’s   authorityunder section 158035(l)oftheLocal
Government Code to adopt and enforce rules relating to the “selection              of employees,”
impermissibly intrudes upon the sheriffs authority to select assistants, as discussed in Attorney
General Opinion GA-0037.’ See TEX. LOC. GOV’T CODE ANN. 5 158.035(l) (Vernon 1999); Tex.
Att’y Gen. Op. No. GA-0037 (2003) at 3.

         You indicate that under the current regulations ofthe Dallas County Sheriffs Department’s
civil service commission, only current employees of the Dallas County Sheriffs Department may
be appointed to positions as deputy sheriff recruits. See Request Letter, supra note 1, at l? Citing
Opinion GA-0037, you suggest that the current regulation prohibiting the appointment of
nonemployees may unlawfully infringe upon the sheriffs authority. Id. at 2-3; see Tex. Att’y Gen.
Op. No. GA-0037 (2003) at 3.

         Opinion GA-0037 considers whether a county commissioners court may adopt a policy that
restricts a sheriff’s authority to select employees. See Tex. Att’y Gen. Op. No. GA-0037 (2003)
at l-2. According to the opinion, although a commissioners court has “extensive authority over the




          ‘See Letter from Honorable Bill Hill, Dallas County District Attorney, Civil Division,   to Honorable Greg
Abbott, Texas Attorney General (Apr. 5, 2004) (on tile with the opinion             Committee,      also avaikzble af
http://www.oag.state.tx.us) [herein&k  Request Letter].

          *See also Telephone Conversation with Bob Schell, Chief, Civil Division, Dallas County District Attorney’s
Office (June 14,2004) (contiming   that the regulations were adopted by the civil service commission).
The Honorable Bill Hill - Page 2                  (GA-0254)




county’s budget” and may thereby limit the number of employees a sheriff may appoint and set
employees’ compensation, id. at 2; see also id. at 3, the commissioners court may not tell a sheriff
whom to select:

                        An elected county officer [such as a sheriff], despite the
                commissioners court’s control over the officer’s budget, is free to
                select assistants of his or her “own choice.”       An elected county
                officer “occupies a sphere of authority,        within which another
                officer may not interfere or usurp.” .     This “sphere of authority’
                consists of those duties the Texas Constitution and statutes delegate
                to the officer.

Id. at 3 (citations omitted); see also TEX. Lot. GOV’T CODE ANN. $ 151.004 (Vernon 1999)
(prohibiting a commissioners court horn influencing “the appointment of any person to an employee
position”).   The opinion concludes that a commissioners court policy restricting the class of
individuals from which the sheriff may appoint employees would impermissibly interfere with the
sheriffs authority to appoint and could not, therefore, be adopted. See Tex. Att’y Gen. Op. No. GA-
0037 (2003) at 3. The opinion notes, however, that the sheriffs authority may be limited by statute,
citing statutory nepotism prohibitions.    See id. at 4; see also TEX. GOV’T CODE ANN. ch. 573
(Vernon 1994 & Supp. 2004-05). The authority of a civil service commission was not at issue in the
opinion.

        The elected position of county sheriff is created by article V, section 23 of the Texas
Constitution, which states that a sheriffs “duties, qualifications, perquisites, and fees ofoffice shall
be” legislatively prescribed. TEX. CONST. art. V, $23. Chapter 85 of the Local Government Code
provides a sheriffwith statutory authority to appoint deputies, reserve deputies, and other employees.
Deputies, who must be appointed in writing, serve “at the pleasure ofthe sheriff.” TEX. LOC. GOV’T
CODE ANN. 5 85.003(c) (Vernon 1999). Reserve deputies, whom a sheriffmay appoint if authorized
by the commissioners court, likewise serve “at the discretion of the sheriff.” Id. 5 85.004(b) (Vernon
Supp. 2004-05). The sheriff also may appoint guards “with the approval of the commissioners
court,” see id. 5 85.005(a) (Vernon 1999), and, in a county with population of at least 210,000, a
county police force, see id. 5 85.006.         The commissioners       court, or any member of the
commissioners court, may not attempt to influence the sheriff to appoint a particular person to an
employment position. See id. 5 15 1.004.

         Chapter 158, subchapter B of the Local Government Code authorizes a sheriffs department
“in a county with a population of more than 500,000 [to]            create a civil service system.” Id. 5
158.032. Ifacommission       is created in accordance with the statutory requirements, see id. 4 158.033
(requiring a petition and an election to create a commission),            section 158.035 provides the
commission the power to “adopt, publish, and enforce rules regarding.          selection and classification
of employees.      and.     other matters relating to the selection of employees and the procedural and
substantive rights.     of employees.” Id. 5 158.035(a). In “a county with a population of 3.3 million
or less,” such as Dallas County, see BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE,2000
CENSUS OF POPULATION, available at http://www.census.gov/                (population of Dallas County:
The Honorable    Bill Hill - Page 3             (GA-0254)




2,218,899),   the sheriff may exempt certain positions      from the civil service system under section
158.038:

                        (1) the position of chief deputy;

                        (2) four positions of major deputy;

                        (3) one or more positions in the office of departmental    legal
                counsel; and

                         (4) additional positions in the department; provided, however,
                that the sheriff may not designate as exempt a total of more than 10
                positions.

TEX. Lot. GOV’T CODE ANN. 5 158038(b)          (Vernon Supp. 2004-05).

         Given Attorney General Opinion GA-0037’s discussion of a sheriffs authority to select
assistants and a civil service commission’s statutory authority to regulate the selection ofnonexempt
employees, you ask two questions. First, you ask whether the powers that section 158.035 bestows
upon a sheriffs civil service commission “include the power or authority to limit” the sheriffs hiring
authority. Request Letter, supra note 1, at 1. Second, you ask whether a sheriffs sphere of authority
prevents the civil service commission from limiting the sheriffs pool of candidates. See id.

         As a preliminary matter, we note that all of the employees appointed under chapter 85 of the
Local Government Code may be subject to a civil service commission created under chapter 158,
subchapter B. See TEX. LOC. GOV’T CODE ANN. $5 85.003(c), .004(b), .005(a), ,006 (Vernon 1999
& Supp. 2004-05). In Letter Opinion 92-48, this office opined that, in accordance with a 1990
appellate court case, “where the legislature has [originally] enacted a statute subsequent to the
enactment of [a] . civil service act which requires employees to serve at the pleasure of the
appointing authority, that statute will prevail over the civil service act and the employee will not be
subject to the civil service system.” Tex. Att’y Gen. LO-92-48, at 3 (citing Clark v. Young, 787
S.W.2d 166 (Tex. App.-Fort Worth 1990, writ denied)); see also id. at 4 (stating that a statute that
was “originally enacted subsequent to the          civil service act” must be carefully scrutinized to
determine whether the employee should be excluded from the civil service system) (emphasis
added). Chapter 158, subchapter B was first adopted in 1981. See Act of May 6, 1981,67th Leg.,
R.S., ch. 119, 1981 Tex. Gen. Laws 295,295-97. The provision requiring a sheriffs civil service
commission to adopt rules relating to the “selection         of employees” was in the original statute.
See id. 5 6(a)(l), 1981 Tex. Gen. Laws 295,296. The sheriffhas had statutory authority to appoint
deputies to serve at the sheriffs pleasure under chapter 85 and its predecessors since at least 1929.
See Act effective June 11, 1929,4lst Leg., 1st C.S., ch. 113, 5 1, 1929 Tex. Gen. Laws 283,284.
The provision authorizing the sheriff to appoint reserve deputies to serve at the sheriffs discretion
was originally adopted in 1971. See Act ofMay24,1971,62dLeg.,           R.S., ch. 506, § l(c), 1971 Tex.
Gen. Laws 1738,173s. Neither guards nor members of a county police force, also appointed under
The Honorable Bill Hill - Page 4               (GA-0254)




chapter 85, serve “at the sheriffs pleasure” or “at the sheriffs discretion.” See TEX. LOC. GOV’T
CODE ANN. 5s 85.005(a), .006 (Vernon 1999). Accordingly, to the extent the sheriff has not
designated them exempt under section 158.038(b), employees appointed under chapter 85 are subject
to the civil service system.

          We conclude, in answer to your first question, that a civil service commission’s express
statutory authority under section 158.035(a)(l) to regulate employee selection is broad enough to
encompass authority to effectively limit the sheriffs hiring authority. See TEX. Lot. GOV’T CODE
ANN. 5 158.035(a)(l)(Vemon         1999). Section 158.035(a)(l)plainlyrequires acommissionto“adopt
. . . and enforce rules regarding.     selection.   of employees.” Id. Commission rules thus regulate
sheriffs employees’ “substantive and procedural rights to their employment.”       Tarrant County v.
Van Sickle, 98 S.W.3d 358,363 (Tex. App.-Fort Worth 2003, pet. denied) (discussing acountycivil
service system created under chapter 158, subchapter A). The sheriff may exempt certain positions
horn the civil service system in accordance with section 158.038, and the sheriff accordingly may
select those employees without complying with the commission’s regulations. See TEX. Lot. GOV’T
CODEANN. 3 158.038@) (Vernon Supp. 2004-05).

         You ask second whether a civil service commission’s regulatory authority over employee
selection impermissibly intrudes upon the sheriffs sphere of authority. Neither Attorney General
Opinion GA-0037 nor Abbott Y. Pollock are apposite here, where we are considering the sheriffs
authority vis-a-vis the civil service commission.   Opinion GA-0037 applied to the authority of a
sheriff vis-a-vis the commissioners court. Abbott v. Pollock, upon which GA-0037 relies for the
proposition that a sheriff may select employees of his or her own choosing, likewise pertains to a
commissioners court’s authority to alter a sheriffs office employee’s status. See Abbott v. Pollock,
946 S.W.2d 513,518 (Tex. App.-Austin 1997, writ denied);seealso       TEX.LOC. GOV’TCODEANN.
5 151.004 (Vernon 1999) (prohibiting a commissioners court from influencing an individual’s
appointment to an employee position).

         A sheriffs authority to appoint employees is statutory, not constitutional. Article V, section
23 of the Texas Constitution does not preclude the legislature from limiting a sheriffs appointing
authority by statute, by, for example, prohibiting nepotism. See TEX. CONST. art. V, § 23 (stating
that sheriffs’ duties “shall be prescribed by the Legislature”); Tex. Att’y Gen. Op. No. GA-0037
(2003) at 4. Here, the legislature has, by enacting section 158.035(a)(l), expressly authorized acivil
service commission to limit a sheriffs appointing authority, where a commission has been
established bypetition and ~~~~~~~~~,~~~TEx.Loc.Gov’TCODEANN. 5 158.033 (Vernon 1999), but
excepting those positions a sheriff has designated as exempt under section 158.038, see id. 5
 158.038(b) (Vernon Supp. 2004-05).

        Moreover, a 2003 appellate court opinion, Sheppard v. Thomas, suggests that a sheriffhas
a ministerial duty to comply with commission rules regarding employee selection, and, implicitly,
that a commission’s authority to regulate employee selection does not impermissibly intrude upon
the sheriffs sphere of authority.       See Sheppard v. l7zomns, 101 S.W.3d 577, 582-83 (Tex.
App.-Houston     [ 1st Dist.] 2003, pet. denied). The Sheppard court concluded that a civil service
commission’s authority to regulate employee layoffs and dismissals under section 158035(b)(4)
The Honorable Bill Hill - Page 5               (GA-0254)




“vests the Commission with the authority to compel a sheriffto follow its rulings.” Id. at 582. Thus,
when a commission orders a sheriff to reinstate a particular former employee without taking a
physical-ability test, the sheriff is required to comply: “[Alnything less than [the sheriffs] full
compliance with the Commission’s         order constitutes a failure to perform a nondiscretionary
ministerial act.” See id. at 583.

         We accordingly conclude that a civil service commission created under chapter 158,
subchapter B of the Local Government Code may, under section 158035(b)(l), limit the sheriffs
authority to select assistants.  The civil service commission’s authority to regulate personnel
selection does not unlawfully infringe upon the sheriffs authority.
The Honorable Bill Hill     Page 6             (GA-0254)




                                       SUMMARY

                        A civil service commission     created under chapter 158,
               subchapter B of the Local Government Code has express statutory
               authority, under section 158.035(b)(l), to limit the sheriffs authority
               to select assistants.    The civil service commission’s       statutory
               authority to regulate personnel selection does not impertnissibly
               intrude upon the sheriffs sphere of authority discussed in Attorney
               General Opinion GA-0037 (2003).

                                              Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
