Can a Texas county put deputy constables under its civil service system?

Plain-English summary

Larger Texas counties can set up a civil service system for their employees under subchapter A of chapter 158 of the Local Government Code, which gives covered workers job protections and standardized rules. The Bexar County Criminal District Attorney asked the Attorney General whether a county civil service commission, in a county that has the basic subchapter A system, could adopt a rule that treats deputy constables as "employees" covered by the system.

The office answered yes. The statute's definition of "employee" (section 158.001(2)) has three parts: the person gets the position by appointment, the person is not authorized by statute to perform governmental functions involving an exercise of discretion in the person's own right, and the person does not hold an office whose term is limited by the state constitution. Deputy constables are appointed and have no constitutionally-limited term, so they meet the first and third parts. But they do exercise governmental discretion in their own right, so they fall outside the second part by default. The key was a 1989 amendment. It added to the second part the phrase "unless the person is included by a local civil service rule adopted under the procedures outlined in Section 158.009," and it amended section 158.009 to let the commission adopt "the definition of a county employee" as a rule. Together, those changes let a commission expand the definition to include an appointed person who exercises discretion in their own right.

The office addressed a 1990 court decision, Arrington v. County of Dallas, which had held that a deputy constable was not an "employee" under section 158.001 because the deputy performs governmental functions in his or her own right. That decision applied the definition as it stood before the 1989 amendment, so it did not control after the amendment. The office found no express terms in subchapter A and no post-1989 court decision excluding deputy constables, and it found no conflict between the "exercise of discretion" clause and the "unless . . . a local civil service rule" clause. The conclusion was that a commission in a basic subchapter A county may adopt a rule defining deputy constables as employees, and when it does, deputy constables become subject to the civil service system. The office also noted that subchapter B, the sheriff's-department system available in larger counties, did not exclude deputy constables, because they are not employees of the sheriff's department.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion read the chapter 158 civil service provisions as they stood in 1996, shortly after the 1989 amendment it relies on. Those provisions have been amended since, and the population thresholds, section numbers, and rulemaking procedures can change. Read this page for the office's 1996 reasoning about a commission's authority to define deputy constables as covered employees, and verify the current Local Government Code and current case law before relying on any specific section number here.

What the opinion meant at the time

For county civil service commissions: The opinion meant a commission in a county with a basic subchapter A system had the authority, under the post-1989 sections 158.001(2) and 158.009, to adopt a rule bringing deputy constables into the definition of covered "employees."

For deputy constables: The opinion meant deputy constables were not automatically civil service employees, but a county commission could choose to cover them by rule. Without such a rule, they fell outside the system because they exercise governmental discretion in their own right.

For lawyers and county officials weighing Arrington v. County of Dallas: The opinion explained that Arrington's holding (deputy constables are not "employees") rested on the pre-1989 statute and did not survive the 1989 amendment that authorized a commission to include such persons by rule.

Common questions

Can a county commission make deputy constables part of its civil service system?
Yes, under this opinion. A commission in a county with a basic subchapter A system may adopt a rule defining deputy constables as covered employees, and once it does, they become subject to the system.

Why aren't deputy constables automatically "employees"?
Because the default definition excludes people who are authorized by statute to perform governmental functions involving an exercise of discretion in their own right, and deputy constables do that. They are covered only if the commission adopts a rule including them.

What changed in 1989?
The Legislature amended section 158.001(2) to add "unless the person is included by a local civil service rule adopted under the procedures outlined in Section 158.009," and amended section 158.009 to let the commission adopt the definition of a county employee. That gave commissions the power to expand the definition.

What about the Arrington case that said deputy constables aren't employees?
The office explained that Arrington v. County of Dallas applied the definition as it existed before the 1989 amendment, so it did not control the question after the law changed.

Background and statutory framework

Subchapter A of chapter 158 of the Local Government Code lets a county with a population of 200,000 or more create a civil service system covering its employees, except those exempted by the subchapter's express terms or judicial interpretations or by subchapter B (section 158.002). Subchapter B is a separate system for a sheriff's department in a county of more than 500,000 residents, covering employees of the sheriff's department including deputy sheriffs (sections 158.031(3), 158.032, 158.035); section 158.040 makes a subchapter B system exclusive of other county systems. As the office had explained in Attorney General Opinion DM-338 (1995), deputy constables are not employees of the sheriff's department, so subchapter B does not exclude them from a subchapter A system.

Section 158.001(2) defines "employee" for subchapter A as a person who obtains a position by appointment and is not authorized by statute to perform governmental functions involving an exercise of discretion in the person's own right, unless the person is included by a local civil service rule adopted under section 158.009, and who does not hold an office whose term is limited by the state constitution. Deputy constables are appointed (sections 86.011, 151.001) and have no fixed term, but they exercise governmental discretion in their own right.

The 1989 amendment (Act of May 22, 1989, 71st Leg., R.S., ch. 881) added the "unless . . . a local civil service rule" clause to section 158.001(2) and made the definition of a county employee a category of rule the commission may adopt under section 158.009. Before that amendment, the court in Arrington v. County of Dallas, 792 S.W.2d 468 (Tex. App.-Dallas 1990, writ denied), had held a deputy constable was not an "employee" under section 158.001. The office concluded the amendment authorized a commission to include deputy constables by rule, so a basic subchapter A commission may adopt such a rule.

Citations

Statutory provisions discussed:

• Local Government Code section 158.001(2) (definition of "employee" for subchapter A)
• Local Government Code section 158.002 (authority to create a county civil service system; exemptions)
• Local Government Code section 158.007 (election to include positions in the system)
• Local Government Code section 158.009 (categories of rules the commission may adopt, including the definition of a county employee)
• Local Government Code section 158.040 (subchapter B sheriff's-department system is exclusive of other county systems); sections 158.031(3), 158.032, 158.035 (subchapter B coverage); sections 86.011, 151.001 (appointment of deputy constables)
• Act of May 22, 1989, 71st Leg., R.S., ch. 881 (1989 amendment to sections 158.001(2) and 158.009)

Cases discussed:

• Arrington v. County of Dallas, 792 S.W.2d 468 (Tex. App.-Dallas 1990, writ denied)
• Attorney General Opinion DM-338 (1995)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0385
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0385.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

April 19, 1996

The Honorable Steven C. Hilbig
Bexar County Criminal District Attorney
Bexar County Justice Center
300 Dolorosa, Suite 5072
San Antonio, Texas 78205-3030

Opinion No. DM-385

Re: Whether a deputy constable may be classified as an "employee" pursuant to chapter 158 of the Local Government Code (RQ-849)

Dear Mr. Hilbig:

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

Code section 158.002 authorizes "[a] county with a population of 200,000 or more [to] . . . create a county civil service system to include all the employees of the county who are not exempted from the system by the express terms or judicial interpretations of this subchapter or by the operation of Subchapter B." Before turning our attention to the meaning of employees as used in subchapter A and "the express terms or judicial interpretations of this subchapter," Local Gov't Code § 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 Opinion DM-338:

[S]ubchapter B permits a sheriff's department in a county of more than 500,000 residents to create a civil service system, [Local Gov't Code] § 158.032, that covers "employees," id. § 158.035, who are defined as employees of the sheriff's department, including deputy sheriffs, id. § 158.031(3). Section 158.040 provides that a sheriff's department civil service system "created under . . . subchapter [B] and in effect" applies to the exclusion of any other civil service system in the county.

Attorney General Opinion DM-338 (1995) at 6-7. Section 158.040 thus excludes an employee of the sheriff's 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 reason that they are not employees of the sheriff's department, so they cannot be excluded from a subchapter A system by virtue of the existence of a subchapter B system. Therefore, for purposes of your question, it does not matter whether the county has created a subchapter B system.

Now we will consider whether deputy constables are "employees of the county," Local Gov't Code § 158.002. Section 158.001 defines employee, as used in subchapter A, as

a person who obtains a position by appointment and who is not authorized by statute to perform governmental functions involving an exercise of discretion in the person's own right, unless the person is included by a local civil service rule adopted under the procedures outlined in Section 158.009, or a person included in the coverage of a county civil service system as the result of an election held under 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. § 158.001(2). Thus, an "employee" in a county that has a basic subchapter A civil service system is a person who

1. "obtains a position by appointment";
2. "is not authorized by statute to perform governmental functions involving an exercise of discretion in the person's own right, unless the person is included by a local civil service rule adopted under the procedures outlined in Section 158.009"; and
3. does not "hold[] 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. §§ 86.011, 151.001, and do not have a "term" of office, see Attorney General Opinion DM-338 (1995) at 6. They therefore meet the first and third requirements listed above. On the other hand, they are "authorized by statute to perform governmental functions involving an exercise of discretion in the person's own right," Local Gov't Code § 158.001(2). The court in Arrington v. County of Dallas, 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 governmental functions in his or her own right and by use of discretion.

The Arrington court, however, applied the subchapter A definition of employee as it existed before section 158.001 was amended in 1989. See id. at 469; cf. Act of May 22, 1989, 71st Leg., R.S., ch. 881, 1989 Tex. Gen. Laws 3879. In 1989 the legislature added to the definition of employee in section 158.001(2) the phrase "unless the person is included by a local civil service rule adopted under the procedures outlined in Section 158.009." Act of May 22, 1989, 71st Leg., R.S., ch. 881, § 1, 1989 Tex. Gen. Laws 3879, 3879. In the same statute the legislature amended code section 158.009 to add "the definition of a county employee" as a category of rules that the commission is authorized to adopt. Id. § 2, at 3879.

These 1989 amendments expressly authorize the commission to expand the definition of employee to include a person who holds a position by appointment and who does not "hold[] an office the term of which is limited by the constitution of this state," Local Gov't Code § 158.001(2), but who otherwise would not fall within the definition because the person is "authorized by statute to perform governmental functions involving an exercise of discretion in the person's own right," id. We conclude that a commission in a county with a basic subchapter A civil service system may adopt a rule defining deputy constables as "employees" covered by the system. Upon adoption of such a rule, deputy constables become "employees" for purposes of subchapter A.

Finally, we must consider whether "the express terms or judicial interpretations of . . . subchapter" A, id. § 158.002, exempt deputy constables from the coverage of a basic subchapter A county civil service system. There are no such "express terms" in subchapter A; nor, since the 1989 amendment, has any court so interpreted subchapter A. We therefore conclude that when the commission in a basic subchapter A system adopts a rule defining deputy constables as "employees," the deputy constables become subject to the coverage of the civil service system.

You contend that there is a conflict in section 158.001(2) between the clause "who is not authorized by statute to perform governmental functions involving an exercise of discretion in the person's own right" and the clause "unless the person is included by a local civil service rule adopted under the procedures outlined in Section 158.009." You further contend that the former clause is restrictive and under the rules of statutory construction controls over the latter clause, which you say is broader. We find no conflict between the two clauses, however. The conjunction unless as used in section 158.001(2) limits the reach of the former clause to county civil service systems in which there is no "accompanying circumstance or condition that" a civil service rule includes the person in the definition of employee. Webster's Ninth New Collegiate Dictionary 1292 (1989) (defining unless). We therefore find no need to resort to rules of construction to harmonize the two clauses.

SUMMARY

A county civil service commission in a county with a basic civil service system created under subchapter A of chapter 158 of the Local Government Code may adopt a rule defining deputy constables as "employees" covered by the system. When the county civil service commission in a basic subchapter A civil service system adopts a rule defining deputy constables as "employees," the deputy constables become subject to the coverage of the civil service system.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James B. Pinson
Assistant Attorney General