Can a county's one-year no-rehire policy block a constable from hiring a deputy who recently left another county job?

TX AG Opinion GA-0656: Does a county no-rehire policy bind a constable?

Plain-English summary

The San Jacinto County Criminal District Attorney explained that the commissioners court adopted a policy making a former county employee ineligible for rehire for one year after leaving, except when a part-time employee is rehired full time. He asked whether that policy could stop a constable from hiring a deputy constable who, within the past year, had left a full-time position in another county department.

The opinion framed the issue around two limited sets of powers. A commissioners court exercises only powers granted by the Constitution and statutes or necessarily implied, and its role in hiring is grounded in its authority over the county budget. A constable also holds an elected, constitutional office limited to powers conferred by or implied from the constitution and statutes. Both play a role in hiring deputies: under Local Government Code section 86.011(a), a constable who wants a deputy applies in writing to the commissioners court, which approves the appointment only if it finds the constable needs a deputy to handle the precinct's business. The court also sets the number of positions and the pay.

But the opinion drew a clear line between deciding how many positions exist and deciding who fills them. Once the commissioners court has authorized positions, it is the elected officer who appoints the employees, and the court is expressly prohibited from trying to influence the appointment of any person to an authorized position. Section 86.011 requires the constable to name the proposed deputy in the application, but it does not let the commissioners court object to or veto the named individual. The opinion cited the rule that appointing deputy constables is within the exclusive control of the constable, and that the commissioners court, even through its budget power, has no authority to appoint or terminate a deputy constable.

Courts and the Attorney General's office have repeatedly held that county-wide policies impinging on an elected officer's authority to appoint and fire staff of the officer's choosing do not apply to that officer. Examples include a policy allowing termination only for just cause and a policy barring employees from running for partisan office, neither of which bound the employees of elected officers outside the commissioners court. Although no prior decision addressed a one-year no-rehire policy applied to a constable, the opinion found the answer clear: such a policy impinges on the constable's authority to appoint deputies of the constable's choice, so it cannot bar a constable from appointing a deputy who left a full-time county job within the past year. The opinion addressed only that no-rehire policy, not other policies like drug screening or criminal-history checks.

Currency note

This opinion was issued in 2008. 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.

Local Government Code chapter 151 and section 86.011 may have been amended since 2008. Confirm the current statutes before relying on this analysis.

Who this opinion affected (as of 2008)

Constables: The opinion confirmed that appointing deputy constables is within the constable's exclusive control and that a county no-rehire policy could not block the constable's choice of deputy.

Commissioners courts: The opinion meant their hiring-related authority over a constable's office is budgetary (how many positions, what pay), not a power to choose or veto who fills an authorized deputy position.

Deputy constable candidates who recently left county jobs: The opinion meant a one-year no-rehire policy did not disqualify them from being appointed by a constable.

Common questions

Can the commissioners court's no-rehire policy stop a constable's hire?
No. The opinion concluded the policy does not apply to a constable, because it impinges on the constable's authority to appoint deputies of the constable's choosing.

Doesn't the commissioners court approve deputy appointments?
It approves the number of positions and whether the constable needs a deputy under section 86.011(a), the opinion explained, but it cannot influence or veto which individual the constable names.

Who can hire and fire a deputy constable?
The constable. The opinion cited authority that appointing deputy constables is within the exclusive control of the constable and that the commissioners court has no authority to appoint or terminate one.

Does this opinion address drug screening or background checks?
No. The opinion expressly limited itself to the one-year no-rehire policy and did not address the validity of any other policy.

Background and statutory framework

A commissioners court exercises only powers expressly delegated by the Constitution or statutes plus those necessarily implied (Tex. Const. art. V, § 18(b); Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941); Hooten v. Enriquez, 863 S.W.2d 522, 529 (Tex. Civ. App.-El Paso 1993, no writ); Renfro v. Shropshire, 566 S.W.2d 688, 690 (Tex. Civ. App.-Eastland 1978, writ ref'd n.r.e.); Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 334 (Tex. 1961)). A constable, holding an elected constitutional office, is likewise limited to powers conferred by or implied from the constitution and statutes (Crosthwait v. State, 138 S.W.2d 1060, 1061 (Tex. 1940)). The commissioners court's role in hiring stems from its budget authority (Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, pet. denied)): an officer needing deputies applies to the court, which determines the number of employees and authorizes their appointment, and a constable seeking a deputy applies in writing under section 86.011(a), which the court approves only if it finds the deputy is needed for precinct business (Tex. Loc. Gov't Code Ann. §§ 86.011(a), 151.001(a), 151.002 (Vernon 2008); State v. Johnson, 52 S.W.2d 110, 111 (Tex. Civ. App.-San Antonio 1932, writ dism'd w.o.j.)). The court sets compensation for employees paid from county funds (Tex. Loc. Gov't Code Ann. § 152.011 (Vernon 1999)). But once positions are authorized, the elected officer appoints the employees, and the court may not attempt to influence the appointment of any person to an authorized position (Tex. Loc. Gov't Code Ann. §§ 151.003, 151.004 (Vernon 2008); Williams v. Bagley, 875 S.W.2d 808, 811 (Tex. App.-Beaumont 1994, no writ)). Appointment of deputy constables is within the exclusive control of the constable, and the commissioners court has no authority to appoint or terminate a deputy constable (Renken v. Harris County, 808 S.W.2d 222, 226 (Tex. App.-Houston [14th Dist.] 1991, no writ); Renfro, 566 S.W.2d at 692). County-wide policies impinging on an elected officer's authority to hire and fire staff of the officer's choosing do not apply to the officer (Garcia v. Reeves County, 32 F.3d 200, 203 (5th Cir. 1994)).

Citations

Statutes:

• Tex. Const. art. V, § 18(b)
• Tex. Loc. Gov't Code Ann. §§ 86.011(a), 151.001(a), 151.002, 151.003, 151.004 (Vernon 2008)
• Tex. Loc. Gov't Code Ann. § 152.011 (Vernon 1999)

Cases:

• Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948)
• Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)
• Hooten v. Enriquez, 863 S.W.2d 522, 529 (Tex. Civ. App.-El Paso 1993, no writ)
• Renfro v. Shropshire, 566 S.W.2d 688, 690, 692 (Tex. Civ. App.-Eastland 1978, writ ref'd n.r.e.)
• Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 334 (Tex. 1961)
• Crosthwait v. State, 138 S.W.2d 1060, 1061 (Tex. 1940)
• Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, pet. denied)
• State v. Johnson, 52 S.W.2d 110, 111 (Tex. Civ. App.-San Antonio 1932, writ dism'd w.o.j.)
• Williams v. Bagley, 875 S.W.2d 808, 811 (Tex. App.-Beaumont 1994, no writ)
• Renken v. Harris County, 808 S.W.2d 222, 226 (Tex. App.-Houston [14th Dist.] 1991, no writ)
• Garcia v. Reeves County, 32 F.3d 200, 203 (5th Cir. 1994)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0656
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0656.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

August 28, 2008

The Honorable Bill Burnett
San Jacinto County Criminal District Attorney

1 State Highway 150, Room 21

Coldspring, Texas 77331-0430

Opinion No. GA-0656

Re: Whether a county policy prohibiting the rehire of an individual within one year after terminating an employment relationship with the county applies to the hiring of a deputy constable (RQ-0681-GA)

Dear Mr. Burnett:

You explain that the San Jacinto County Commissioners Court has adopted a policy that generally prohibits the rehiring of an individual who has terminated an employment relationship with the county for a period of one year following the termination:

When an employee terminates from San Jacinto County, the employee is not eligible for rehire for a period of one year, unless the employee was classified as a part-time employee and rehired as a full[-]time employee.

You ask whether this policy may be applied to restrict a county constable's hiring of a deputy constable who, within one year prior to being hired by the constable, terminated a full-time position with another county department. See Request Letter, supra note 1, at 1.

The powers of both a county commissioners court and a constable are limited. A county commissioners court's powers encompass only those expressly delegated to the commissioners court by the Texas Constitution or statutes and those necessarily implied therefrom. See TEX. CONST. art. V, § 18(b) (providing that a commissioners court "shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed"); Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941); Hooten v. Enriquez, 863 S.W.2d 522, 529 (Tex. Civ. App.-El Paso 1993, no writ); Renfro v. Shropshire, 566 S.W.2d 688, 690 (Tex. Civ. App.-Eastland 1978, writ ref'd n.r.e); see also Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 334 (Tex. 1961) (finding that, although a commissioners court is not "expressly clothed with constitutional or statutory authority to contract for" certain services, it has authority that may be implied "from the powers that have been expressly granted to and the duties imposed upon this body by law"). Likewise, a constable, who holds an elected, constitutional office, is limited to those powers expressly conferred by or necessarily implied from the constitution and statutes. See Crosthwait v. State, 138 S.W.2d 1060, 1061 (Tex. 1940) (stating that an "officer must look to the Act by which his office is created ... to ascertain the extent of his powers"); Tex. Att'y Gen. Op. No. JC-0239 (2000) at 2 (stating that a county officer is limited to those powers expressly conferred by or necessarily implied from statutes).

Both a county commissioners court and an elected district, county, or precinct officer play a role in the officer's hiring of an employee. The commissioners court's role is grounded in its jurisdiction over the county's budget. See Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.-Austin 1997, pet. denied) (noting that a commissioners court's authority over the positions in the sheriff's office stems from its budgetary power). Thus, in general, when a district, county, or precinct officer "requires the services of deputies, assistants, or clerks in the performance of the officer's duties," the officer must "apply to the commissioners court ... for the authority to appoint the employees." TEX. LOC. GOV'T CODE ANN. § 151.001(a) (Vernon 2008). After receiving such an application, the commissioners court "shall determine the number of employees that" the officer may appoint and "shall authorize their appointment." Id. § 151.002. Section 86.011(a) of the Local Government Code provides similarly with respect to a constable's appointment of deputy constables:

An elected constable who desires to appoint a deputy must apply in writing to the commissioners court of the county and show that it is necessary to appoint a deputy in order to properly handle the business of the constable's office that originates in the constable's precinct. The application must state the name of the proposed deputy. The commissioners court shall approve and confirm the appointment of the deputy only if the commissioners court determines that the constable needs a deputy to handle the business originating in the precinct.

Id. § 86.011(a); see State v. Johnson, 52 S.W.2d 110, 111 (Tex. Civ. App.-San Antonio 1932, writ dism'd w.o.j.) (explaining that the Legislature's adoption of amendments to the statutory predecessor to section 86.011 "left intact" the statutory predecessor to sections 151.001 through 151.004). The commissioners court may later reconsider the number of positions in a particular department during the annual budget process. Tex. Att'y Gen. Op. No. JC-0239 (2000) at 2. And the commissioners court bears "sole authority to 'set the amount of the compensation, office and travel expenses, and all other allowances for ... employees who are paid wholly from county funds.'" Tex. Att'y Gen. Op. No. JC-0239 (2000) at 2 (quoting TEX. LOC. GOV'T CODE ANN. § 152.011 (Vernon 1999)).

An elected officer's role-which the Beaumont court of appeals has described as encompassing "a broad discretion in the selection of their staff and their employees"-is based on the officer's responsibility to perform the constitutional and statutory duties assigned to the officer. Williams v. Bagley, 875 S.W.2d 808, 811 (Tex. App.-Beaumont 1994, no writ); see also Abbott, 946 S.W.2d at 517 ("The limitations on the powers of the [c]ommissioners [c]ourt are founded in the policy that elected officers, such as sheriffs, discharge the public trust and carry the responsibility for the proper discharge of that trust, and therefore, should be free to select persons of their own choice to assist them."). "In Texas, an elected officer occupies a sphere of authority, which is delegated to that officer by the Constitution and laws, [with] which another officer may not interfere ... or usurp." Abbott, 946 S.W.2d at 517. Accordingly, when a commissioners court has approved an elected officer's application to appoint certain positions, it is the elected county officer who may appoint the employees. TEX. LOC. GOV'T CODE ANN. § 151.003 (Vernon 2008). Moreover, a commissioners court is expressly prohibited from attempting "to influence the appointment of any person to an employee position authorized by the court." Id. § 151.004. And, although Local Government Code section 86.011 specifically requires a constable to list the name of a proposed deputy in an application to the commissioners court, it does not give the commissioners court authority to influence the appointment of a particular individual or to refuse the constable's application based upon the court's objection to the proposed deputy named in the application. See id. § 86.011(a).

Thus, the Fourteenth District Court of Appeals determined in 1991 that "[a]ppointment of deputy constables is within the exclusive control of the Constable." Renken v. Harris County, 808 S.W.2d 222, 226 (Tex. App.-Houston [14th Dist.] 1991, no writ). The commissioners court, even by virtue of its powers over the county budget, "has no authority ... to appoint or terminate a deputy constable." Id.; see also Tex. Att'y Gen. Op. No. O-7081 (1946) at 7 (stating that, under section 86.011's statutory predecessors, "[t]he constable makes the appointment [of a deputy constable] and is the only person who can discharge" the deputy constable); cf. Abbott, 946 S.W.2d at 517 (stating that a commissioners court has no authority to appoint or terminate a sheriff's office employee or to dictate the terms of employment of a sheriff's employee); Renfro v. Shropshire, 566 S.W.2d 688, 692 (Tex. Civ. App.-Eastland 1978, writ ref'd n.r.e.) (stating that a commissioners court lacks authority "to screen applicants or to veto appointments made by the county clerk").

Courts and this office repeatedly have determined that county-wide policies that would impinge upon an elected officer's authority to appoint and fire individuals of the officer's choosing do not apply to the officer. For example in 1994 the United States Court of Appeals for the Fifth Circuit, construing Texas law, determined that a commissioners court had no authority to adopt a policy allowing elected county officials (other than commissioners) to terminate employees only for just cause. See Garcia v. Reeves County, 32 F.3d 200, 203 (5th Cir. 1994). And this office concluded in 1986 that a county policy prohibiting county employees from running for office in a partisan election did not apply to the employees of elected officers who did not sit on the commissioners court. See Tex. Att'y Gen. Op. No. JM-521 (1986) at 3. As the 1986 opinion states:

The commissioners court has no power to interfere in the hiring decisions made by other county officers; therefore, it may not require those county officers to terminate an employee who becomes a candidate for partisan political office. This policy does not affect the employment decisions of elected constitutional officers other than members of the commissioners court.

Id.

Although neither a court nor this office previously has considered whether a policy prohibiting the rehiring of an employee for a period of one year can be applied to an elected district, county, or precinct officer other than a county commissioner, such as a constable, we believe the answer is clear: such a policy impinges upon the constable's authority to appoint individuals of the constable's choosing. Accordingly, the San Jacinto County policy at issue here cannot be applied to bar a constable from appointing a deputy who has terminated a full-time employment relationship with the county within the past year.

SUMMARY

A county policy adopted by the commissioners court that prohibits the rehire of an individual whose employment relationship with the county terminated within the past year does not apply to a constable.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee