Can a Texas county put probation department employees under its civil service system?

Plain-English summary

Tarrant County's voters had approved expanding the county civil-service system to cover officers of the county's Community Supervision and Corrections Department, the agency that supervises adult probationers. The county's criminal district attorney asked whether that was legal, given a line of court and Attorney General opinions holding that probation employees are not county employees. The Attorney General concluded the county could not include those employees in its civil-service system.

The reason is who employs probation staff. A Community Supervision and Corrections Department (the opinion calls it a "CSC department") is created by the district judges in a judicial district, not by the county. The judges appoint the department's director, who hires the officers and staff. The judicial district pays their salaries, and the department contracts with a county only to provide employee benefits. The county's role is mostly to supply facilities and equipment. The legislature placed the responsibility for community supervision squarely with the courts, and earlier decisions, including the federal Shore v. Howard case and Attorney General Opinions H-619 and H-672, held that the courts' control over probation supervision is inconsistent with a civil-service commission's control over hiring, firing, and discipline.

A 1985 statute let counties hold an election to expand their civil-service systems to cover adult-probation officers, and that language survives in section 158.007. The opinion treated chapter 158 as sending mixed signals: one provision seemed to authorize covering these employees, while the rest of the chapter limits a civil-service commission to county employees. Reading them together, the opinion concluded the 1985 law did not strip the district courts of their authority over CSC-department employees, so those employees remain outside a county civil-service system.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The district attorney who asked (what the opinion held): The opinion answered that the extension was not legal. Despite the voter-approved expansion, a county may not include CSC-department employees in a civil-service system established under chapter 158 and expanded under section 158.007.

Counties with civil-service systems (what the opinion held for them): At the time, the opinion treated CSC-department employees as employees of the district courts, beyond a county civil-service commission's jurisdiction, regardless of an expansion election.

Probation officers and staff (what the opinion held for them): The opinion explained that their hiring, firing, salaries, and discipline ran through the district courts and the department director, not the county civil-service commission, even where voters had approved bringing them in.

Common questions

Could Tarrant County put probation officers under its civil-service system after voters approved it?
No. The opinion concluded that a county may not include CSC-department employees in its civil-service system, even one expanded by election under section 158.007, because those employees are employees of the district court.

Who actually employs community-supervision (probation) staff in Texas?
The opinion explained that the district judges establish the department, appoint its director, and the director hires the staff; the judicial district pays their salaries. The county mainly provides facilities and contracts for benefits.

Didn't a 1985 law let counties cover probation officers in civil service?
The 1985 law added the expansion-election language now in section 158.007, but the opinion concluded it did not subtract from the district courts' authority over these employees, so they still could not be brought under the county system.

Why does it matter who controls hiring and firing?
The opinion, following Shore v. Howard and Opinions H-619 and H-672, reasoned that judicial independence in supervising probationers requires the courts to control employment decisions, which is inconsistent with a civil-service commission regulating selection and dismissal.

Background and statutory framework

A county with a population over 200,000 may create a civil-service system to govern its employees (Tex. Loc. Gov't Code §§ 158.002, .003, .004), run by a three-member commission with rulemaking power over selection, classification, discipline, and dismissal of county employees (§ 158.009(a)). A county over 800,000 may hold an election to expand the system to cover additional groups, including "the adult and juvenile probation officers and their assistants" (§ 158.007(a)). Chapter 76 of the Government Code, however, places community-supervision-and-corrections departments under the district courts: the judges create the department and appoint its director (§ 76.004), the judicial district pays salaries (§ 76.006(b)), and the department contracts with a county for benefits (§ 76.006(a)), while Code of Criminal Procedure article 42.12 vests responsibility for community supervision in the courts. Relying on Shore v. Howard, Randall v. Jefferson County, Clark v. Tarrant County, and Attorney General Opinions H-619 and H-672, the opinion concluded that the courts' authority over these employees is inconsistent with civil-service-commission jurisdiction, and that neither the 1985 expansion law nor the 1989 amendment letting a commission define "county employee" changed that result.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. § 158.007(a) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. §§ 158.002, .003, .004 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 158.001(2), (3) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 158.009(a) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 158.010(a) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 158.013
• Tex. Gov't Code Ann. ch. 76 (Vernon 1998 & Supp. 2000)
• Tex. Gov't Code Ann. § 76.002(a), (c), (d) (Vernon 1998)
• Tex. Gov't Code Ann. § 76.004, .004(b) (Vernon 1998)
• Tex. Gov't Code Ann. § 76.006(a), (b) (Vernon Supp. 2000)
• Tex. Gov't Code Ann. § 76.008(a), .009(a) (Vernon 1998)
• Tex. Code Crim. Proc. Ann. art. 42.12, § 1 (Vernon Supp. 2000)
• Act of May 26, 1985, 69th Leg., R.S., ch. 713, 1985 Tex. Gen. Laws 2510
• Act of May 22, 1989, 71st Leg., R.S., ch. 881, § 2, 1989 Tex. Gen. Laws 3879

Cases:

• Shore v. Howard, 414 F. Supp. 379, 390 (N.D. Tex. 1976)
• Randall v. Jefferson County, 771 F. Supp. 173, 174 (E.D. Tex. 1991), aff'd in part, 966 F.2d 1449 (5th Cir. 1992)
• Clark v. Tarrant County, 608 F. Supp. 209, 214 (N.D. Tex. 1985), aff'd in relevant part, rev'd in part, 798 F.2d 736 (5th Cir. 1986)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0254
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0254.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

July 18, 2000

The Honorable Tim Curry
Tarrant County Criminal District Attorney
Justice Center
401 West Belknap
Fort Worth, Texas 76196-0201

Opinion No. JC-0254

Re: Whether, under section 158.007 of the Local Government Code, a county may include community-supervision-and-corrections-department employees in an expanded civil-service system (RQ-0186-JC)

Dear Mr. Curry:

Under section 158.007 of the Local Government Code, a county whose population exceeds 800,000 that has created a civil-service system under chapter 158, subchapter A of that code may, if the voters approve, expand its civil-service system to "cover the adult and juvenile probation officers and their assistants." TEX. LOC. GOV'T CODE ANN. § 158.007(a) (Vernon 1999). Judicial and attorney general opinions issued before section 158.007 was added to the Local Government Code conclude that adult-probation officers, who are currently known as community-supervision-and-corrections-department employees, see generally TEX. GOV'T CODE ANN. ch. 76 (Vernon 1998 & Supp. 2000) (entitled "Community Supervision and Corrections Departments"), are not county employees and may not be included in a civil-service system. See id. § 76.004(b) (Vernon 1998) (requiring community-supervision-and-corrections-department director to appoint officers and employees); Shore v. Howard, 414 F. Supp. 379, 390 (N.D. Tex. 1976); Tex. Att'y Gen. Op. Nos. H-672 (1975) at 1; H-619 (1975) at 2-3; see also Randall v. Jefferson County, 771 F. Supp. 173, 174 (E.D. Tex. 1991) (stating that county was not adult-probation officer's employer), aff'd in part, 966 F.2d 1449 (5th Cir. 1992); Tex. Att'y Gen. LO-97-090, at 1 (same). You ask whether, given the rationale of these judicial and attorney general opinions, a county may, consistently with section 158.007 of the Local Government Code, include in its civil-service system community-supervision-and-corrections-department employees. See Letter from Honorable Tim Curry, Tarrant County Criminal District Attorney, to Honorable John Cornyn, Texas Attorney General (Feb. 7, 2000) (on file with Opinion Committee) [hereinafter "Request Letter"]. We conclude that it may not.

Your question leads us to assume that Tarrant County, which has a population over 800,000, see 1 BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 1990 CENSUS OF POPULATION, General Population Characteristics: Texas 4 (1992) (population: 1,170,103), has implemented a civil-service system under chapter 158, subchapter A of the Local Government Code. You state that Tarrant County voters approved, in accordance with section 158.007, a ballot measure to expand the system. Request Letter, supra, at 2; see TEX. LOC. GOV'T CODE ANN. § 158.007 (Vernon 1999). Thus, you continue, the voters "apparently" extended "the protection of the Tarrant County Civil Service Act to officers of the Tarrant County Community Supervision and Corrections Department." Request Letter, supra, at 2. Nevertheless, you question the legality of the extension. Id. at 1.

A county whose population exceeds 200,000 may establish a county civil-service system to govern matters relating to "all the employees of the county who are not" expressly exempted from the system by statute or by judicial decision. TEX. LOC. GOV'T CODE ANN. §§ 158.002, .003, .004 (Vernon 1999). If a civil-service system is created, the county commissioners court appoints a three-member civil-service commission, which regulates the terms of employment of county employees:

Except as provided by Section 158.010, the commission shall adopt, publish, and enforce rules regarding:

(1) the definition of a county employee;

(2) selection and classification of county employees;

(3) competitive examinations;

(4) promotions, seniority, and tenure;

(5) layoffs and dismissals;

(6) disciplinary actions;

(7) grievance procedures; and

(8) other matters relating to the selection of county employees and the procedural and substantive rights, advancement, benefits, and working conditions of county employees.

Id. § 158.009(a). Section 158.010, cited in section 158.009(a), permits the head of a department included within the county's civil-service system to assume responsibility to select all department employees. See id. § 158.010(a).

Of those counties that have implemented a civil-service system, a county with a population greater than 800,000 may hold an election to determine whether to expand its system to include additional employees:

In a county that has a population of more than 800,000 and a civil service system created under this subchapter, the qualified voters of the county, voting at an election called for that purpose, may determine whether the system will be dissolved or expanded to cover the employees, except licensed attorneys, of the office of district or criminal district attorney, the adult and juvenile probation officers and their assistants, personnel in the county auditor's office including all assistant county auditors, and all other employees of the county not included in the coverage of the system and not specifically exempted by Section 158.013 or Subchapter B.

Id. § 158.007(a). Section 158.001 defines an "employee" 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) (emphasis added). A "department" is "a county, district, or precinct office or officer, agency, or board that has jurisdiction and control of the performance of employees' official duties." Id. § 158.001(3).

In general, jurisdiction of a community-supervision-and-corrections department (a "CSC department") is not with the county but with the local district court or courts. The legislature has placed "wholly within the state courts the responsibility for determining the conditions of community supervision, and the supervision of defendants placed on community supervision." TEX. CODE CRIM. PROC. ANN. art. 42.12, § 1 (Vernon Supp. 2000). In accordance with chapter 76 of the Government Code, the district judge or judges trying criminal cases in a judicial district establish a CSC department and employ "district personnel to conduct presentence investigations, supervise and rehabilitate defendants placed on community supervision, enforce the conditions of community supervision, and staff community corrections facilities." TEX. GOV'T CODE ANN. § 76.002(a) (Vernon 1998); see also id. § 76.001(2) (defining "community supervision"). Because a CSC department generally serves all courts within a judicial district, it may serve more than one county. See id. § 76.002(c). But see id. § 76.002(d) (permitting Texas Board of Criminal Justice, in certain circumstances, to allow more than one CSC department to serve judicial district that includes more than one county). District judges appoint a director for the CSC department, who employs "a sufficient number of officers and other employees to perform the professional and clerical work of the department." Id. § 76.004.

A CSC department receives financial support both from the county or counties in the judicial district and from the district itself. A county's contribution to a CSC department includes "physical facilities, equipment, and utilities" for the department's use. Id. § 76.008(a) (Vernon 1998). The district judge or judges may supplement the county's contribution from district funds in limited circumstances. See id. § 76.009(a).

The judicial district served by the CSC department or the department itself is responsible to provide employee compensation and benefits. The judicial districts served by a CSC department pay employee salaries. See id. § 76.006(b) (Vernon Supp. 2000). The CSC department contracts with a county served by the department to provide employee benefits. See id. § 76.006(a). CSC-department employees are governed by personnel policies and receive benefits "equal to" those received by county employees. Id.

Applying statutes regarding the establishment of a CSC department as well as a prior version of chapter 158, subchapter A, judicial and attorney general opinions have determined that CSC-department employees are not county employees and may not participate in a county's civil-service system. See Randall, 771 F. Supp. at 174; Clark v. Tarrant County, 608 F. Supp. 209, 214 (N.D. Tex. 1985) aff'd in relevant part, rev'd in part, 798 F.2d 736 (5th Cir. 1986); Shore, 414 F. Supp. at 390; Tex. Att'y Gen. Op. Nos. H-672 (1975) at 1; H-619 (1975) at 2; Tex. Att'y Gen. LO-97-090, at 1. According to Attorney General Opinion H-619, the district court's responsibility under article 42.12 of the Code of Criminal Procedure to supervise defendants who are placed on community supervision includes the authority to oversee the selection and dismissal of employees. See Tex. Att'y Gen. Op. No. H-619 (1975) at 3; cf. Tex. Att'y Gen. Op. No. DM-208 (1993) at 5 (concluding that, for purposes of anti-nepotism statutes, department director, not district judge, has authority to hire CSC-department personnel). This responsibility is inconsistent, according to Attorney General Opinion H-619, with a civil-service commission's authority to regulate the selection and dismissal of county employees. See Tex. Att'y Gen. Op. No. H-619 (1975) at 3; see also Tex. Att'y Gen. Op. No. H-672 (1975) at 1 ("the control exercised by district judges over adult probation [is] inconsistent with the authority of the Civil Service Commission concerning employees subject to the Act"); cf. TEX. LOC. GOV'T CODE ANN. § 158.009(a) (Vernon 1999) (authorizing civil-service commission to regulate selection and classification of, disciplinary actions against, and substantive rights and working conditions of county employees, among other things). In Shore v. Howard a federal district court agreed with attorney general opinions concluding that "the purposes of the probation statutes are inconsistent with the rules regarding employment and dismissal of employees adopted under the County Civil Service Act. The court's responsibility for the supervision of probationers includes these facets of employment and dismissal of probation officers." Shore, 414 F. Supp. at 390; see Tex. Att'y Gen. Op. Nos. H-672, H-619 (1975).

After, and perhaps as a result of, these opinions, the legislature amended the statutory predecessor to chapter 158 in 1985 to permit a county to expand its civil-service system to include those added under an expansion election, such as adult-probation officers. See Act of May 26, 1985, 69th Leg., R.S., ch. 713, 1985 Tex. Gen. Laws 2510, 2510-11. The 1985 enactment added the substance of what is now section 158.007(a), permitting an election to expand a civil-service system to include adult-probation officers, and amended the Act's definition of "employee" to encompass, as the definition continues to do, employees added in accordance with an expansion election. See id. §§ 1, 2, 1985 Tex. Gen. Laws 2510, 2510-11. The issue you raise requires us to consider whether the 1985 legislation in fact superseded Shore and Attorney General Opinions H-672 and H-619.

In light of the statutes and opinions suggesting that CSC-department employees are not subject to county control, chapter 158, subchapter A gives mixed messages about whether a civil-service system may include employees other than those employed by the county. Section 158.007(a), together with section 158.001(2)'s definition of "employee," authorizes a county to expand its civil-service system, in accordance with a vote of the electorate, to include community-supervision-and-corrections-department employees. On the other hand, the purpose of a civil-service commission is to govern matters involving county employees only. See TEX. LOC. GOV'T CODE ANN. § 158.002 (Vernon 1999) (permitting county to create civil-service system "to include all the employees of the county"). The powers of a civil-service commission, enumerated in section 158.009(a), appear to be limited to regulation of county employees. The commission must, for example, define the term "county employee," see id. § 158.009(a)(1), and adopt regulations to standardize the selection and classification of "county employees," see id. § 158.009(a)(2).

Because a CSC-department employee is an employee of the district court, we conclude that a CSC-department employee is not subject to the jurisdiction of a civil-service commission and cannot be included within an expanded civil-service system. Statutes authorizing a county district to establish a CSC department have not been significantly amended with respect to the issue you raise since the issuance of the judicial and attorney general opinions we have discussed. See Randall, 771 F. Supp. at 174; Clark, 608 F. Supp. at 214; Shore, 414 F. Supp. at 390; Tex. Att'y Gen. Op. Nos. H-672 (1975) at 1; H-619 (1975) at 2; Tex. Att'y Gen. LO-97-090, at 1. Nor did anything in the 1985 legislation that purported to allow a county civil-service commission to include CSC-department employees in the civil-service system subtract from a district court's jurisdiction of the employees. The courts within the judicial district, because they oversee the department director, see Tex. Att'y Gen. Op. No. DM-208 (1993) at 5, continue to have complete authority over the CSC department: hiring and firing of employees, see TEX. GOV'T CODE ANN. § 76.002(a) (Vernon 1998); contracts for employee benefits, see id. § 76.006(a) (Vernon Supp. 2000); and the payment of employee salaries, see id. § 76.006(b).

The rationale of Shore and the attorney general opinions cited consequently remains persuasive. As the Shore court indicated, "judicial independence in supervising probationers called for by the probation statutes requires" that the courts be financially and administratively independent of "other state governmental entities and regulations." Shore, 414 F. Supp. at 390; accord Tex. Att'y Gen. Op. No. H-619 (1975) at 3. District courts cannot control totally "the conditions of community supervision, and the supervision of defendants placed on community supervision," see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 1 (Vernon Supp. 2000) if employees must be hired, fired, or disciplined in accordance with the civil-service rules.

A civil-service commission's authority to define "a county employee," provided in 1989, did not increase a civil-service commission's authority to include in the county civil-service system persons who do not perform services for the county. See Act of May 22, 1989, 71st Leg., R.S., ch. 881, § 2, sec. 158.009(1), 1989 Tex. Gen. Laws 3879. This authority cannot encompass the authority to exercise jurisdiction of CSC-department employees, whose oversight and supervision lies solely with the state courts. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 1 (Vernon Supp. 2000). Nor does the fact that a CSC department is to contract for employee benefits with a county served by the department, see TEX. GOV'T CODE ANN. § 76.006(a) (Vernon Supp. 2000), make CSC-department employees county employees who may be subject to the county's civil-service system.

SUMMARY

A county may not include employees of the community-services-and-corrections department in a civil-service system established under chapter 158 of the Local Government Code and expanded in accordance with section 158.007 of that Code.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee