Honorable Tim Curry Criminal District Attorney Justice Center 401 West Belknap Fort Worth, Texas 76196-0201
Re: Whether an expanded county civil service system established under Local Government Code section 158.007 covers sheriff's and constable's deputies when the sheriff's department has not established a separate civil service system under chapter 158, subchapter B, and whether a county civil service system has authority to adopt subpoena power (RQ-342)
Dear Mr. Curry:
You have asked us whether a county civil service system resulting from an expansion election under chapter 158, subchapter A, of the Local Government Code, in a county whose sheriff's department has not established a separate civil service system under chapter 158, subchapter B, includes within its coverage deputy sheriffs and deputy constables. You asked this question in regard to Tarrant County, which in November, 1988, held such an election and approved an expanded civil service system pursuant to section
Section
A county with a population of 200,000 or more may, in accordance with this subchapter, 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.
Section 158.007 allows an election to create an expanded county civil service system and sets forth the extent of its expanded coverage. That section provides, in pertinent part:
(a) 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. [Emphasis added.]
Section 158.007(a) thus indicates that a successful expansion election extends civil service coverage to several categories of persons:
1. "the employees, except licensed attorneys, of the office of district or criminal district attorney";
2. "the adult and juvenile probation officers and their assistants";
3. "personnel in the county auditor's office, including all assistant county auditors";
4. "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."
Sheriff's and constable's deputies do not fall within any of the first three categories, but they may be "other employees of the county." Local Gov't Code §
Section
In this subchapter:
. . . .
(2) "Employee" means 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.
Local Gov't Code §
One part of the definition of employee in section 158.001(2) includes "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." This language survives virtually unchanged from the original enactment, in 1971, of the statutory predecessor to subchapter A, V.T.C.S. article 2372h-6. See Act of May 14, 1971, 62d Leg., R.S., ch. 262, § 1(3), 1971 Tex. Gen. Laws 1151, 1154 ("`Employee' means any person who obtains his position by appointment and who is not authorized by statute to perform governmental functions in his own right involving some exercise of discretion") (repealed by Act of April 30, 1987, 70th Leg., R.S., ch. 149, § 49(1), 1987 Tex. Gen. Laws 707, 1308). This office held in Attorney General Opinion
At the time of Attorney General Opinion
It is a presumption of statutory construction that, in the absence of a clear indication of legislative intent to the contrary, a word that is used in different parts of the same statute has the same meaning throughout the statute and that a clear meaning of the word in one part of the statute is attached to it elsewhere. E.g., Walker v. Koger,
Even though sections 158.002 and 158.007 were not enacted as parts of the same statute, there is another rule of construction that may require that the word employee be given the same meaning in both sections.
Where the same or a similar term is used in the same connection in different statutes, it will be given the same meaning in one that it has in another, unless there is something to indicate that a different meaning was intended. This rule applies with particular force where the meaning of a word as used in one act is clear or has been judicially determined, and the same word is subsequently used in another act pertaining to the same subject.
L M-Surco Mfg. v. Winn Tile Co.,
The manifest legislative purpose of section 158.007 was to allow the most populous counties that already have civil service systems to expand coverage to additional persons. This purpose is evident both from the addition of former section 5A (now section 158.007) to the county civil service law, see Act of May 26, 1985, 69th Leg., R.S., ch. 713, § 4, 1985 Tex. Gen. Laws 2510, 2510 and from the contemporaneous amendment of the definition of employee in former section 1 (now section 158.001) to include persons "added to coverage of the county civil service system by an election held under Section 5A [(now section 158.007)]," id. § 1, 1985 Tex. Gen. Laws at 2510 (italics in original). Therefore, the word employees is not used in the same connection because section 158.007 was not intended to apply to the same persons but rather to new persons who before the enactment of that section's statutory predecessor were not covered by the county civil service system. If employees meant the same thing in both provisions, then section 158.007 would be ineffectual because it would "expand" the system to include persons who already were in the system.
Furthermore, the legislative history of the predecessor to section 158.007, V.T.C.S. art. 2372h-6, § 5A (repealed by Act of April 30, 1987, 70th Leg., R.S., ch. 149, § 49(1), 1987 Tex. Gen. Laws 707, 1306), supports a broad reading of the word employees as used in that section. The author of the bill that was enacted as section 5A, House Bill 1240, see Act of May 26, 1985, 69th Leg., R.S., ch. 713, § 4, 1985 Tex. Gen. Laws 2510, 2510, explained in the house committee public hearing on House Bill 1240 that the bill would allow a county election to determine whether to expand civil service coverage to include "everybody in the county with the exception of the auditors' office, the constitutional officers that are elected, . . . and court reporters and a few others." Hearings on H.B. 1240 Before the House Comm. on County Affairs, 69th Leg. (Apr. 23, 1985) (statement of Representative Willis) (tape recording available from House Video/Audio Services Office). The problem with the existing county civil service law, the author reported, was that under it one half of a county's "employees" would be in the system and the other half would be out of it. Id. We believe that in construing section 158.007, a court would follow the injunction, found in section
Our consideration of the definition of employee in section 158.001 so far has not excluded deputy sheriffs and deputy constables from the statutory meaning of the word. Now we will consider the last sentence of the statutory definition: "The term [employee] does not include a person who holds an office the term of which is limited by the constitution of this state." Local Gov't Code §
As we noted above, the final potential exclusions from the definition of employee in section 158.001 are the two following groups of persons: (1) those who are specifically excluded from coverage by subchapter B of chapter 158, which covers a sheriff's department civil service system, Local Gov't Code §
Subchapter B permits a sheriff's department in a county of more than 500,000 residents to create a civil service system, id. § 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. This provision would exclude from the operation of a subchapter A expanded civil service system any employees in the sheriff's department who would have been covered by that system if there were no subchapter B system in effect. The only other provision of subchapter B that concerns the exemption of persons from civil service coverage is section 158.038, which permits the sheriff of a county that has adopted a subchapter B civil service system to exempt certain sheriff's department positions from the system. The sheriff's department of the subject hypothetical county has not established a subchapter B system. Therefore, none of the provisions of subchapter B come into play here as exceptions to the coverage of the county's expanded civil service system.
Section 158.013 provides, in pertinent part:
(b) This subchapter [(subchapter A)] does not apply to:
(1) assistant district attorneys, investigators, or other employees of a district or criminal district attorney, except as provided by Section 158.007;
(2) the official shorthand reporter of a court; or
(3) an elected or appointed officer under the constitution.
Id. § 158.013(b) (emphasis added). The only possible place to fit a deputy constable or deputy sheriff within this section would be under the above-emphasized subsection (b)(3) exception for "an elected or appointed officer under the constitution."
Sheriffs and constables do hold offices established in the constitution. See Tex. Const. art.
In sum, we conclude that sheriff's and constable's deputies are covered by an expanded civil service system created pursuant to section
You also ask whether a county civil service commission may "adopt" section
Section 158.009 does not expressly grant a county civil service commission the power to subpoena witnesses, but it could be read as a broad grant to the commission of authority to assume any and all powers that may be administratively convenient, so long as the powers are contained in existing "civil service law[s] or rule[s]." Section 143.009 is unmistakably a "civil service law of this state" in the sense of law as a statute. Furthermore, the issuance of subpoenas to compel the attendance of witnesses could easily be said to promote the purposes of subchapter A, particularly in view of the commission's authority under subsection (a) of section 158.009 to make and enforce rules involving, among other things, disciplinary actions and grievances.
On the other hand, the substance of section 143.009(b) is not a "law" in the sense of a rule of action or conduct. See BLACK'S LAW DICTIONARY 884 (6th ed. 1990). Rather, it is a list of delegated powers, including the subpoena power. In section 158.009 the word law is used in the alternative with the word rule, which can mean a "[p]rescribed guide for conduct or action, regulation or principle." Id. at 1331. Looking further at the context, we see that section 158.009 allows the adoption of a law or rule "as a guide," not as a power. Finally, note that the rest of section 158.009, that is, subsections (a) and (c), deal only with the commission's rule-making function. The language of section 158.009 thus tends to suggest a narrower legislative intent to authorize the commission to adopt or use laws or rules that serve as guides only for its own rule-making process.
Compulsory process is not a power that administrative agencies may assume merely for convenience and without express statutory authorization. The power to compel testimony inherently and primarily belongs to the judiciary. 8 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2195 (John T. McNaughton rev. 1961). "Agencies have no inherent subpoena power." LEE MODJESKA, ADMINISTRATIVE LAW: PRACTICE AND PROCEDURE 26 (1982). Generally, administrative subpoena power exists only by express statutory conferral, 73 C.J.S. Public Administrative Law and Procedure § 82 (1983), in the absence of which it will not be implied unless essential to meet statutory objectives, Vance v. Ananich,
The law is well settled that the power of subpoena which formerly was exclusively a judicial power, may now be granted to nonjudicial bodies, commissions, agencies or officials by statute, but the power and the extent of the power is to be determined in each case by the express statutory grant.
Pennsylvania ex rel. Margiotti v. Orsini,
Based on the language of section 158.009 and the foregoing authorities, we conclude that the section does not authorize a county civil service commission to endow itself with subpoena power by its own rule. You do not ask and we do not consider here whether a county civil service commission has subpoena power by necessary implication to effectuate other statutory powers or duties.
Section
Very truly yours,
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
[1] The fact that both statutes were codified later, in the same statute, as parts of subchapter A of chapter 158 of the Local Government Code, see Act of April 30, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 943, 944-45, does not change the constructional significance of their history as separate statutes, for the legislature did not intend that the codification work a substantive change in the law. Id. § 51, 1987 Tex. Gen. Laws at 1308.
[2] In a subchapter B system "[t]he sheriff may designate as exempt . . . the position of chief deputy . . . [and] one or more positions in the office of departmental legal counsel." Local Gov't Code §
[3] Cf. Hearings on H.B. 1240 Before the House Comm. on County Affairs, 69th Leg. (Apr. 23, 1985) (statement of Representative Willis) (tape recording available from House Video/Audio Services Office) (bill enacted as statutory predecessor to section 158.013 would allow county election to determine whether to expand civil service coverage to include "everybody in the county with the exception of the auditor's office, the constitutional officers that are elected, . . . and court reporters and a few others").
[4] The position of deputy sheriff developed in the common law. 70 AM. JUR.2d Sheriffs, Police, and Constables § 6 (1987); see Rich v. Graybar Elec. Co.,
[5] Section
(b) During an investigation, the commission or the commission member may:
(1) administer oaths;
(2) issue subpoenas to compel the attendance of witnesses and the production of books, papers, documents, and accounts relating to the investigation; and(3) cause the deposition of witnesses residing inside or outside the state.
. . . .
(e) A person who fails to respond to a subpoena issued under this section commits an offense punishable [by fine of not less than $10 or more than $100, confinement in the county jail for not more than 30 days, or both fine and confinement].
Subsection (a) provides as follows:
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.
Local Gov't Code §
[6] Subsection (c) provides as follows: The commission may not adopt or enforce a rule requiring a county employee to retire because of age. The commission may adopt a rule requiring a county employee, on reaching an age set by the commission, to submit annually to the commission an affidavit from a physician stating that the employee is physically and mentally capable of continuing employment. Local Gov't Code §