Texas Attorney General Opinion: GA-126 Page: 11 of 13
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The Honorable Ben W. "Bud" Childers - Page 11
respect to the exercise of the constitutional or legal powers of the
office. The exemption set forth in the preceding sentence shall not
include employees subject to the civil service laws of a State
government, governmental agency or political subdivision.
42 U.S.C. 2000e(f) (2002). Courts apply a six-factor test to determine whether a person is within
the "personal staff' exception: (1) whether the elected official has plenary powers of appointment
and removal; (2) whether the person in the position at issue is personally accountable to only the
elected official; (3) whether the person in the position at issue represents the elected official in the
eyes of the public; (4) whether the elected official exercises a considerable amount of control over
the position; (5) the level of the position within the organization's chain of command; and (6) the
actual intimacy of the working relationship between the elected official and the person filling the
position. See Teneyuca v. Bexar County, 767 F.2d 148, 151 (5th Cir. 1985). If an associate judge
is a member of a district judge's personal staff, Title VII does not apply to applicants for that
position. See id. at 149-50 (affirming summary judgment dismissing Title VII claim of unsuccessful
applicant for assistant criminal district attorney position because a person filling the position sought
by applicant would not be an "employee" as defined in 42 U.S.C. 2000e(f)).
Under Family Code, chapter 201, subchapter A, an associate judge is appointed by the
district court. See TEX. FAM. CODE ANN. 201.001(a) (Vernon 2002). When the judge of a single
court appoints an associate judge, the associate judge "serves at the will . . . of that court." Id.
201.004(a). Moreover, the associate judge adjudicates matters pursuant to the judge's referral, see
id. 201.005-.007, and makes findings and recommendations that "become the order of the
referring court only on the referring court's signing an order conforming to the associate judge's
report," id. 201.013(b); see also id. 201.011(report), 201.012, 201.015 (right to appeal to
referring court). Given the functions an associate judge performs for the appointing judge and the
judge's ultimate authority over the associate judge, we agree with your assessment that a court would
conclude that an associate judge appointed by a district judge under Family Code, chapter 201,
subchapter A is a member of the district judge's personal staff. See Teneyuca, 767 F.2d at 152-53
(concluding on appeal of summary judgment that plaintiff had failed to rebut defendants' showing
that an assistant criminal district attorney is a member of the criminal district attorney's personal
staff); see also Bland v. New York, 263 F. Supp. 2d 526, 539-43 (E.D.N.Y. 2003) (an elected judge's
secretary falls within the "personal staff' exception under the Teneyuca test), Laurie v. Alabama
Court of Criminal Appeals, 88 F. Supp. 2d 1334 (M.D. Ala. 2000) (Alabama Court of Criminal
Appeals' staff attorneys and junior staff attorneys were exempt as Title VII "employees," because
they were members of an elected judge's "personal staff'), aff'd, 256 F.3d 1266, 1268 (11 th Cir.
2001).40
40n the alternative, a court could conclude that an associate judge is the district judge's "appointee on the policy
making level" and "immediate adviser with respect to the exercise of the constitutional or legal powers of the office."
42 U.S.C. 2000e(f) (2002); Dyer v. Radcliffe, 169 F. Supp. 2d 770, 774-75 (S.D. Ohio 2001) (concluding that a court
referee appointed by an elected juvenile judge and who "effectively makes policy for, or suggests policy to the court on
each occasion that he resolves a dispute in the court's name or recommends a disposition to the judge" was an appointee
on the policy making level) (citing Mumford v. Basinski, 105 F.3d 264, 272 (6th Cir. 1997)); Laurie, 88 F. Supp. 2d at
(continued...)(GA-0126)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-126, text, December 8, 2003; (https://texashistory.unt.edu/ark:/67531/metapth275022/m1/11/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.