Does county civil service protection cover a court investigator appointed by a probate judge in Texas?

Plain-English summary

Tarrant County runs a civil service system, the set of job protections that keep covered county employees from being fired without cause and a hearing. Chapter 158 of the Local Government Code lets large counties create such a system, and it sweeps in every county employee who is not specifically carved out. The Tarrant County Criminal District Attorney asked the Attorney General a narrow question: does that system cover a court investigator who is appointed by a statutory county probate judge?

The argument for leaving probate court investigators out rested on a pattern. In an earlier case, a Fort Worth appeals court held that a district judge's court coordinator was not part of the county civil service system, because the statute creating that position says the coordinator "serves at the pleasure of the judge." Courts read "serves at the pleasure" as the power to remove someone without cause or a hearing, which is the opposite of civil service protection. A prior Attorney General opinion reached the same result for deputy district clerks, whose statute also used the "serves at the pleasure" phrase.

The Attorney General concluded that the probate court investigator was different. The statute that creates the position, Government Code section 25.0025, contains no "serves at the pleasure" language. The Legislature knows how to write that exemption when it wants to, and it did not write it here. Because chapter 158 covers all non-exempt employees and the investigator was not on the exemption list, the Attorney General concluded that a court investigator appointed by a county probate judge is covered by the Tarrant County civil service system.

Currency note

This opinion was issued in 2010. 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

Probate court investigators (as the opinion held for them): The opinion concluded that this position falls within the Tarrant County civil service system, because nothing in chapter 158 exempts it and the position's authorizing statute (section 25.0025) does not say the investigator serves at the appointing judge's pleasure.

Tarrant County and its Civil Service Commission (what the opinion described): The opinion read the Commission's own Rule 1.13, which applies the civil service rules to employees of all departments not specifically exempted under chapter 158, as reaching the probate court investigator.

On the comparison to court coordinators and deputy clerks (what the opinion distinguished): The opinion explained why Clark v. Young and Attorney General Opinion GA-0243 did not control. Both turned on statutes that said the employee "serves at the pleasure" of the appointing official, and section 25.0025 has no such clause.

Common questions

Was a probate court investigator covered by the Tarrant County civil service system?
The opinion concluded yes. The position was not on chapter 158's exemption list, so the system reached it.

Why did court coordinators end up outside the system but probate court investigators inside it?
The opinion explained that the court coordinator statute says the coordinator "serves at the pleasure of the judge," which courts treat as inconsistent with civil service protection. The probate court investigator statute, section 25.0025, has no such phrase.

What did "serves at the pleasure" have to do with it?
The opinion described that language as a recognized way the Legislature exempts an appointee from civil service, because it lets the appointing official remove the person without cause or a hearing. The Legislature did not include it for probate court investigators.

Did this opinion settle the question for every Texas county?
The opinion answered the question as posed about the Tarrant County system, which Tarrant County voters expanded in 1988 under section 158.007. The reasoning turned on chapter 158 and section 25.0025, but the opinion addressed the Tarrant County system specifically.

Background and statutory framework

Chapter 158 of the Local Government Code authorizes a county civil service system. It lets a county of 190,000 or more create a system covering all county employees who are not exempted by the subchapter's express terms, by judicial interpretation, or by the operation of Subchapter B. Tex. Loc. Gov't Code Ann. § 158.002 (West 2008). Tarrant County voters expanded its system in 1988 under section 158.007, which applies to counties with a population of more than 1.3 million. Id. § 158.007.

Section 158.013(b) lists the positions Subchapter A does not reach: assistant district attorneys and other employees of a district or criminal district attorney (except as provided by section 158.007), a court's official shorthand reporter, and elected or appointed constitutional officers. Id. § 158.013(b). A probate court investigator is not on that list, and the Commission's Rule 1.13 applies the civil service rules to employees of all departments not specifically exempted under chapter 158. Tarrant County Civil Service Rules, Rule 1.13 (Jan. 1998).

The Criminal District Attorney pointed to two authorities suggesting a different result. In Clark v. Young, 787 S.W.2d 166 (Tex. App.-Fort Worth 1990, writ denied), the court held that a district judge's court coordinator was not in the system, relying on Government Code section 74.101, which says the coordinator "serves at the pleasure of the judge." Tex. Gov't Code Ann. § 74.101 (West 2005). And in Tex. Att'y Gen. Op. No. GA-0243 (2004), the office reached the same result for Hidalgo County deputy district clerks, whose statute likewise provided that the clerk "serves at the pleasure of the district clerk." Id. § 51.316(b) (West 2005).

The statute creating the probate court investigator position, by contrast, contains no such clause. Section 25.0025 directs the judge of a statutory probate court to appoint a court investigator and the commissioners court to set the investigator's salary, but it does not say the investigator serves at the judge's pleasure. Id. § 25.0025 (West 2004). Because the Legislature knew how to write that exemption and did not, the Attorney General concluded that the probate court investigator remained within the Tarrant County civil service system.

Citations

Statutes and rules:

• Tex. Loc. Gov't Code Ann. § 158.002 (West 2008)
• Tex. Loc. Gov't Code Ann. § 158.007
• Tex. Loc. Gov't Code Ann. § 158.032 (West 2008)
• Tex. Loc. Gov't Code Ann. § 158.013(b) (West 2008)
• Tex. Loc. Gov't Code Ann. § 158.001 (West 2008)
• Tex. Gov't Code Ann. § 74.101 (West 2005)
• Tex. Gov't Code Ann. § 25.0025 (West 2004)
• Tex. Gov't Code Ann. § 51.316(b) (West 2005)
• Tarrant County Civil Service Rules, Rule 1.13 (Jan. 1998)

Cases and opinions:

• Clark v. Young, 787 S.W.2d 166 (Tex. App.-Fort Worth 1990, writ denied)
• Tex. Att'y Gen. Op. No. GA-0243 (2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0824
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0824.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 1, 2010

The Honorable Joe Shannon, Jr. Opinion No. GA-0824
Tarrant County Criminal District Attorney
Tim Curry Criminal Justice Center Re: Whether a court investigator appointed by a
401 West Belknap statutory county probate judge is covered by the
Fort Worth, Texas 76196-0201 Tarrant County civil service system
(RQ-0889-GA)

Dear Mr. Shannon:

You ask whether a court investigator appointed by a statutory county probate judge is covered by the Tarrant County civil service system.[1]

Chapter 158 of the Local Government Code provides for the creation of a county civil service system. "A county with a population of 190,000 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." TEX. LOC. GOV'T CODE ANN. § 158.002 (West 2008). You indicate that, in 1988, Tarrant County voters approved the expansion of its civil service system (the "System") pursuant to section 158.007 of the Local Government Code, which is applicable to counties with a population of more than 1.3 million.[3] Id. § 158.007; Request Letter at 1.

Subchapter A of chapter 158 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.

TEX. LOC. GOV'T CODE ANN. § 158.013(b) (West 2008). A rule adopted by the Tarrant County Civil Service Commission (the "Commission") declares:

The Civil Service Rules apply to the employees of all departments[4] that are not specifically exempted under Chapter 158 of the Local Government Code.

TARRANT COUNTY CIVIL SERVICE RULES, RULE 1.13 (Jan. 1998) (footnote added). Because the position of "probate court investigator" is not listed among the exemptions in section 158.013, one might conclude that a court investigator appointed by a county probate judge is necessarily included within the System.[5]

You contend, however, that a judicial decision and an attorney general opinion may suggest a different result. Request Letter at 2. First, you note that a Fort Worth Court of Appeals decision considered whether a court coordinator for a district judge was included within the Tarrant County civil service system. Clark v. Young, 787 S.W.2d 166 (Tex. App.-Fort Worth 1990, writ denied). The court, in holding that a court coordinator for a district judge was not part of the county civil service system, relied on a provision of subchapter E, chapter 74 of the Government Code that established the position of court coordinator:

(a) The local administrative judge and each district or statutory county court judge may establish a court coordinator system and appoint a court coordinator for his court to improve justice and expedite the processing of cases through the courts.

(b) Each court coordinator serves at the pleasure of the judge who appointed him.

TEX. GOV'T CODE ANN. § 74.101 (West 2005). In Clark, the court found persuasive the argument that a court coordinator "serve[s] at the pleasure of the judge" who appointed him. Clark, 787 S.W.2d at 169. The court reasoned, in part, that the fact "that the coordinators serve at the pleasure of the appointing judge ... means that they may be removed without cause, and without notice and hearing. It follows that such a provision is inconsistent with the concept of civil service protection." Id. (citation omitted). By contrast, chapter 25 of the Government Code deals with the position of court investigator of a statutory county probate court. The relevant statute provides:

(a) The judge of a statutory probate court shall appoint a court investigator. One person shall serve as the court investigator for all statutory probate courts in the county unless the commissioners court has authorized additional investigators. The commissioners court may authorize additional court investigators if necessary.

(b) The commissioners court shall set the salary of a court investigator.

TEX. GOV'T CODE ANN. § 25.0025 (West 2004). Unlike the situation with regard to court coordinators for district judges, the position of court investigator for a statutory probate court does not contain the declaration that the investigator "serves at the pleasure of the judge."

You also suggest that a prior opinion of this office offers support for the view that an investigator for a probate court judge is not covered by the System. In that opinion, we considered whether deputy district clerks in Hidalgo County were subject to the provisions of the Hidalgo County civil service plan. See Tex. Att'y Gen. Op. No. GA-0243 (2004). The opinion observed that the employment of deputy clerks and assistants in Hidalgo County is specifically governed by section 51.316 of the Government Code. Id. at 3. That provision, similar to the statute at issue in Clark v. Young, provided that "[a] deputy clerk or assistant ... serves at the pleasure of the district clerk." Id. See TEX. GOV'T CODE ANN. § 51.316(b) (West 2005).

In the situation you pose, the statute authorizing the appointment of court investigators—section 25.0025 of the Government Code—differs from the statutes considered in both Clark and Attorney General Opinion GA-0243, in that section 25.0025 does not explicitly provide that a court investigator "serves at the pleasure" of the probate court judge. Clearly, the Legislature is aware of one means of exempting particular county employees from a civil service system—by providing that such appointees "serve at the pleasure" of the appointing official. In the case of court investigators appointed by a statutory probate court, the Legislature has opted not to make such provision.

Thus, it appears that Rule 1.13 of the Tarrant County Civil Service Commission, which makes the relevant civil service rules applicable to "employees of all departments that are not specifically exempted under chapter 158," requires the conclusion that a court investigator appointed by a county probate judge is covered by the Tarrant County civil service system.

SUMMARY

A court investigator appointed by a county probate judge is covered by the Tarrant County civil service system.

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Request Letter (available at http://www.texasattorneygeneral.gov).

[2] Subchapter B of chapter 158 is applicable to sheriffs departments in counties with a population of more than 500,000. TEX. LOC. GOV'T CODE ANN. § 158.032 (West 2008).

[3] The population of Tarrant County in 2000 was 1,446,230. U.S. BUREAU OF THE CENSUS, STATE AND COUNTY QUICK FACTS, available at http://quickfacts.census.gov/qfd/states/48/48439.html (last visited Nov. 23, 2010).

[4] We assume for purposes of this opinion that a probate court investigator is an employee of a county "department."

[5] Indeed, the definition of "employee" for purposes of the civil service statutes is, inter alia, "a person who obtains a position by appointment." TEX. LOC. GOV'T CODE ANN. § 158.001 (West 2008) (emphasis added).