)   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

     JOHN   CORNYN




                                                 July 9,2002



The Honorable Frank Madla                                Opinion No. JC-0529
Chair, Intergovernmental Relations Comrnittee
Texas State Senate                                       Re: Whether a county civil-service commission
P-0. Box 12068                                           or a sheriffs department civil-service commission
Austin, Texas 78711                                      may adopt a rule that permits an award of back
                                                         pay to an employee after the commission modifies
                                                         a disciplinary action taken against that employee
                                                         (RQ-0504-JC)


Dear Senator Madla:

         Section 158.009 of the Local Government Code requires a county civil-service commission
formed under chapter 158, subchapter A to adopt rules regarding, among other things, county
employees ’“substantive rights, . . . benefits, and working conditions.” TEX. Lot. GOV’T CODE ANN.
8 158.009(a)(S) (V emon 1999). Section 158.035 similarly requires a sheriffs department civil-
service commission formed under chapter 15 8, subchapter B to adopt rules regarding, among other
things, employees ’“substantive rights, . . . benefits, and working conditions.” Id. fj 158.035(a)(X).
You ask whether a civil-service commission formed under either chapter 158, subchapter A or
subchapter B has sufficient authority to adopt a rule that “permits awarding back pay to an employee
after the Commission modifies a disciplinary action taken against” the employee, “where such
modification results in either a full or partial restoration of that employee’s position.“’ We conclude
that a civil-service commission’s statutory rule-making authority includes authority to adopt such
a rule under either subchapter A or B.

         Chapter 158 of the Local Government          Code is divided into two subchapters,       A and B. See
TEX. LOC. GOV’T CODE ANN. ch. 15 8 (Vernon 1999 & Supp. 2002). Subchapter A applies to a county
civil-service commission created to include all county employees who are not exempted by other
law. See id. 5 158.002 (Vernon 1999). Subchapter B applies to a sheriffs department civil-service
system created for sheriffs department employees. See id. 4 158.032. Although we have received
a letter averring that your question specifically concerns the Nueces County Civil Service
Commission created under subchapter A,* you ask about civil-service commissions created under
both subchapters. See Request Letter, supra note 1, at 1.


          ‘Letter from Honorable Frank Madla, Texas State Senator, to Honorable John Comyn, Texas Attorney General
(Jan. 24,2002) (on f11e with Opinion Committee) [hereinafter Request Letter].

         *Letter Brief from Honorable Laura Garza Jirnenez, Nueces County Attorney, to Honorable John Comyn, Texas
Attorney General, at 1 (Mar. $2002) (on f11e with Opinion Committee) [hereinafter Jimenez BriefJ.
me Honorable Frank Madla             - Page 2            (JC-0529)




        Under subchapter A, a county with a population of at least 200,000 may create a county civil-
service system to include all county employees “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. Lot. GOV’T CODE ANN. § 158.002 (Vernon 1999). Once created, the county commissioners
court must appoint three commissioners to administer the system. See id. 5 158.008(a) (Vernon
Supp. 2002). Generally, the commission must adopt 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. 8 158.009(a) (Vernon 1999). “The commission may adopt or use as a guide any civil service law
or rule of the United States, this state, or a political subdivision in this state to the extent that the law
or rule promotes” subchapter A’s purposes and serves the county’s needs. Id. 5 158.009(b); see Tex.
Att’y Gen. Op. No. DM-338 (1995) at 9-l 1 (concluding that section 158.009 does not authorize
county civil-service commission to endow itselfwith subpoena power). A county employee covered
by the civil-service system who, “on a final decision by the commission, is demoted, suspended, or
removed from” his or her position may appeal to a district court in the county within thirty days of
the decision. TEX. Lot. GOV’T CODE ANN. 8 158.012(a) (Vernon 1999). And, if the district court
finds in favor of the petitioning employee, the court may order reinstatement and back pay. See id.
8 158.012(c).

       Subchapter B authorizes a sheriffs department in a county with a population greater than
500,000 to create a civil-service system.3 See id. 5 158.032. In a county with a population between



         3Nueces County’s population is not large enough to establish a sherifrs department civil-service system under
chapter 158, subchapter B of the Local Government Code. While section 158.032 requires a population greater than
500,000, Nueces County’s population is 3 13,645. See TEX. LOC.GOV’TCODEANN.3 158.032 (Vernon 1999); BUREAU
                                                                                                          (continued.. .)
The Honorable      Frank Madla - Page 3               (JC-0529)




500,000 and 2.8 million, the commission consists of three members, one each appointed by the
sheriff, the commissioners court, and the district attorney. See id. 8 158.034. In a county with a
population of 2.8 million or more, the commission consists of seven members, two each appointed
by the sheriff, the commissioners court, and the district attorney, and “one member by joint action
requiring the affirmative vote of each of the authorities.” Id. The sheriffs department civil-service
commission’s     power to adopt rules is largely identical to that granted a county civil-service
commission under subchapter A:

                   (a) The commission       shall adopt . . . rules regarding:

                           (1) selection and classification       of employees;

                           (2) competitive     examinations;

                           (3) promotions,     seniority, and tenure;

                           (4) layoffs and dismissals;

                           (5) disciplinary    actions;

                           (6) grievance procedures;

                           (7) the rights of employees during an internal investigation;
                   and

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

                 (b) The commission may adopt or use as a guide any civil service law or rule
         of the United States, this state, or a political subdivision in this state to the extent that
         the law or rule promotes the purposes of this subchapter and is consistent with the
         needs and circumstances of the department.

                 (c) In a county with a population of 2.8 million or more, a panel of three
         commissioners    shall preside at the hearing and vote on the commission’s final
         decision in any case involving termination, demotion, or recovery of back pay. A
         panel’s decision is the final decision of the commission for purposes of Sections



         3(...continued)
OF THECENSUS,U.S. DEP’T OF COMMERCE,2000 CENSUSOF POPULATION,General              Population, Characteristics: Texas,
Nueces County (available at http://www.census.gov); see also TEX. GOV’T CODE ANN. $3 11.005(3) (Vernon 1998)
(defining term “population” generally as “population shown by . . . most recent federal decennial census”).
The Honorable    Frank Madla - Page 4            (JC-0529)




        15 8.03 5 1 [“Procedures After Felony Indictment or Misdemeanor Complaint”] and
        158.037 [“Appeals,” see infra]. The commission shall adopt rules prescribing the
        commission’s procedures for assigning members to a panel. . . .

Id. 5 158.035. An employee may appeal a “final decision” demoting, suspending, or removing him
or her from a position to a district court in the county by filing a petition within thirty days “after the
date of the decision.” Id. 8 158.037(a). “If the district court renders judgment for the” employee,
the court may order that the employee receive back pay. Id. 8 158.037(c).

          We conclude that sections 15 8.009(a) and 15 8.03 5(a) of the Local Government Code provide
a civil-service commission with sufficient rule-making authority to adopt a rule permitting the award
of back pay to an employee after the commission partly or fully reinstates the employee. Request
Letter,supranote     1, at 1; ~~~TEx.Loc.Gov’TCODEANN. $5 158.009(a), 158.035(a) (Vernon 1999).
A civil-service commission has only those powers that “are expressly granted to it by statute together
with those necessarily implied from the authority conferred or duties imposed.” Stauffer v. City of
San Antonio, 344 S.W.2d 158, 160 (Tex. 1961). Subsection (a)(8) of both sections 158.009 and
 158.035 require a civil-service commission to adopt rules pertaining to employees’ “substantive
rights, . . . benefits, and working conditions.”    TEX. Lot. GOV’T CODEANN. 59 158.009(a)(S),
.035(a)(8) (V emonl999). Although it is not defined in chapter 158, a substantive right is commonly
understood to be “[a] right that can be protected or enforced by law; a right of substance rather than
form.” BLACK’S LAW DICTIONARY 1324 (7th ed. 1999); see TEX. GOV’T CODEANN. 6 3 11 .Ol l(a)
(Vernon 1998) (providing that words and phrases used in statute but not defined by it “shall be read
in context and construed according to . . . common usage.“). Insofar as a civil-service commission’s
rule provides a wrongly dismissed employee with a right to back pay upon reinstatement, the rule
pertains to the employee’s substantive rights. Moreover, a back-pay policy provides an employee
benefit in that it governs a “condition of employment no different than the rate of compensation or
amount of vacation an employee is to receive.” Tex. Att’y Gen. Op. No. H-402 (1974) at 2; see TEX.
Lot. GOV’TCODEANN.§§ 158.009(a)(8), .035(a)(8) (V emon 1999). In the employment context, the
term “benefit” denotes an advantage or privilege “(other than direct salary or compensation) received
by an employee from an employer.” BLACK’SLAW DICTIONARY               150-5 l(7th ed. 1999).

          Section 158.035 l(e), which specifically permits a sheriffs         department civil-service
commission in a county with a population of 2.8 million or more to award back pay to an employee
in certain circumstances, does not limit a civil-service commission’s broad rule-making authority
under either section 158.009 or 158.035. See TEX. LOC. GOV’T CODEANN. 8 158.0351(c) (Vernon
1999). A brief we have received urges us to imply, from the authority granted a civil-service
commission in section 15 8.03 5 1(e), that a civil-service commission not subject to section 15 8.03 5 1
may not award back pay. See Jimenez Brief, supra note 2, at 3. But the history of the 1993
legislation that enacted section 158.035 1 (as well as section 158.035(c)) indicates that the legislature
was concerned about a sheriffs inability to suspend an employee indicted for a felony or officially
charged with committing a Class A or B misdemeanor, not a lack of authority to award back pay.
S~~SENATERESEARCHCTR.,BILLANALYSIS,T~~.S.B.~~~,~~~L~~.,R.S.(~~~~);HOUSECOMM.ON
COUNTYAFFAIRS,BILLANALYSIS,Tex. S.B. 784,73d Leg., R.S. (1993).
The Honorable Frank Madla - Page 5               (JC-0529)




          Sections 158.012(c) and 158.037(c), which permit an employee to appeal a civil-service
commission’s “final decision” to a district court and permit the district court to “order . . . payment
of back pay,” also do not restrict a civil-service commission’s rule-making authority under sections
158.009 and 158.035. A brief we have received notes that “[wlhile the legislature states that the
district court ‘may order . . . payment of back pay . . . ,“’ see TEX. Lot. GOV’T CODE ANN. fj§
158.012,158.037 (Vernon 1999), the legislature has not conferred that power on a commission, and
so, according to the brief, a commission does not have the authority to reconsider its decision and
to provide a remedy. See Jimenez Brief, supra note 2, at 3. In our opinion, section 158.012’s and
section 158.037’s references to a commission’s “final decision” indicate that a commission may
modify an order and provide remedies before the order may be appealed to a court, although the
statutes themselves do not tell us what a final decision is. See Bouldin v. Bexar County Sher#‘s
Civil Serv. Comm ‘n, 12 S.W.3d 527, 530 (Tex. App.-San Antonio 1999, no pet.) (stating that “the
statute does not define what constitutes a final decision”); see also TEX. GOV’T CODE ANN. 0 3 11 .Ol 1
(Vernon 1998) (providing that undefined statutory terms should be construed consistently with
common usage); BLACK’SLAWDICTIONARY             847 (7th ed. 1999) (defining “final judgment”); id. at 644
(defining “final decision” as final judgment). Similarly, under the Administrative Procedure Act,
chapter 2001 of the Government Code, see TEX.GOV’TCODEANN.§ 2001.002 (Vernon 2000) (titling
Act), a state agency’s decision in a contested case generally is final a certain period after a decision
is issued, which period allows an aggrieved party time to move for a rehearing on the matter. See
id. 8 2001.144(a); CJ EdwardsAquzferAuth.        v. Bragg, 21 S.W.3d 375,380 (Tex. App.-San Antonio
2000), afyd, 71 S.W.3d 729 (Tex. 2002) (stating that, for agency action to be “final,” it must be
definitive and must immediately affect regulated party’s day-to-day business); Tex.- NM. Power Co.
v. Tex. Indus. Energy Consumers, 806 S.W.2d 230, 232 (Tex. 1991) (quoting 5 J. STEIN, G.
MITCHELL, & B. MEZTNES, ADMINISTRATIVE LAW 48-10 (1988)) (opining that “no single rule”
disposes of all finality questions, but advising courts to “treat as final a . . . ‘definitive”’ decision,
“‘promulgated in a formal manner and one with which the agency expects compliance”‘).

          Moreover, we find no evidence in the legislative history of these statutes that the legislature
intended to withhold from a civil-service commission the authority to award back pay to a reinstated
employee. Although sections 15 8.0 12 and 15 8.037 are substantively similar for the purposes of this
opinion, they were adopted ten years apart. What is now section 158.012(c) was adopted in 1971,
see Act of May 14,1971,62d Leg., R.S., ch. 262, sec. 9(c), 1971 Tex. Gen. Laws 115 1,1153; what
is now section 158.037(c) was adopted in 1981, see Act of May 6, 1981,67th Leg., R.S., ch. 119,
sec. 7(c), 198 1 Tex. Gen. Laws 295,296. In connection with the 198 1 legislation, the bill analysis
noted that, without a civil-service system, “years of expensive litigation” is an employee’s only
recourse when he or she is demoted or fired. See HOUSE STUDYGROUP,BILLANALYSIS 1, Tex. S.B.
301,67th Leg., R.S. (198 1); cf: TEX. HOUSE INTERIM      COUNTYGOV’T STUDY COMM., REPORT TO THE
62D LEGISLATURE 13 (Jan. 11,197 1) (stating that civil-service legislation is aimed at helping counties
“attract[] and keep[] capable officers and employees”:          “The prospect of losing a job if the
department head loses an election inevitably discourages prospective employees.“). Interpreting a
civil-service commission’s rule-making authority to exclude the power to reconsider its own
decisions and to provide remedies when the commission concludes its previous decision was wrong
would thwart the legislative intention to provide county employees an avenue other than litigation
The Honorable Frank Madla - Page 6            (JC-0529)




to redress grievances.   See TEX. GOV’T CODEANN. $5 311.021(3), .023(3), (5) (Vernon 1998)
(directing construer to presume legislature intended just and reasonable result, and permitting
construer to consider legislative objective and consequences of particular construction).

         Finally, a rule permitting an award of back pay in the circumstances you describe does not
contravene article III, section 53 of the Texas Constitution, as a brief we have received suggests.
See Jimenez Brief, supra note 2, at 3. Article III, section 53 prohibits a county from granting “any
extra compensation, fee[,] or allowance to a public officer” or employee “after service has been
rendered.” TEX. CONST.art. III, 5 53. We assume that any back pay awarded is for services
performed after the rule’s adoption. Cf: Tex. Att’y Gen. Op. No. JC-0370 (2001) at 2 (stating that
if county revises handbook to permit payments to employees for accrued vacation or compensatory
time, county may apply increased benefits only to services performed after revisions took effect).
While a payment of back pay is unconstitutional where it is not awarded under a specific policy, the
adoption of a rule permitting back pay “becomes a condition of employment,” and the award does
not violate article III, section 53 of the Constitution. See Tex. Att’y Gen. Op. No. H-402 (1974) at
2. By contrast, in Attorney General Opinion H-402 this office concluded that a commissioners court
may not approve back pay for a county employee who was suspended and later reinstated without
a policy granting a right to back pay “as a part of the terms of employment.” Id. at 2-3 (summary).
The Honorable   Frank Madla - Page 7           (JC-0529)




                                        SUMMARY

                         A county civil-service commission created under chapter 158,
                subchapter A of the Local Government Code and a sheriffs
                department civil-service commission created under subchapter B of
                the same chapter may adopt a rule that permits the commission to
                award. back pay to an employee if the commission modifies a
                disciplinary action to partly or fully reinstate the employee. See TEX.
                Lot. GOV’T CODEANN. ch. 158 (Vernon 1999 & Supp. 2002).




                                               Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee