Texas Attorney General Opinion: LO96-100 Page: 2 of 4
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The Honorable Carl E. Lewis - Page 2 (L 0 9 6- 10 0 )
rule defining "county employee."3 You explain that in 1992 the Nueces County civil
service commission issued an order stating that, except for the top three staff positions,
the county attorney's personnel are included within the county's civil service system.4
You believe, however, that the civil service commission's rule contravenes Gov-
ernment Code section 41.105, which makes all personnel of a county attorney's office
terminable at will by the county attorney.5 ' In your opinion, Government Code section
41.105 is a special provision that excepts the county attorney's employees from the civil
service provisions, which apply generally to all county personnel. Indeed, under the Code
Construction Act,6 where a general provision conflicts with a special provision, the special
provision constitutes an exception to the general provision, "unless the general provision is
the later enactment and the manifest intent is that the general provision prevail."7 A pro-
vision stating that a particular employee is terminable at will conflicts irreconcilably with
the civil service provisions,' which provide an employee a right to appeal a demotion or
termination.9 We must consider, therefore, whether Government Code section 41.105
prevails over the civil service provisions.
Consistently with the Code Construction Act, we address first which provision,
Government Code section 41.105 or the civil service provisions, is more specific. This
office considered a similar question in Attorney General Opinion H-619 concerning assist
tant county auditors. Under the statutory predecessor to Local Government Code section
84.021, V.T.C.S. article 1650,10 a county auditor may request the district judges that ap-
point him or her to appoint a number of assistant auditors." Upon approval by the district
judges, the assistants are appointed, and, the statutory predecessor provided, "no assistant
31d. 158.009(aXl).
4We assume the Nueces Coumnty civil service commission promulgated its rule in accordance with
Local Government Code section 158.009.
5Gov't Code 41.105; see also id. 41.101 (defining "prsecting attorney").
6Gov't Code ch. 311.
71d. 311.026(b).
SSee Clark v. Young, 787 S.W.2d 166, 168 (Tex. App.-Fort Worth 1990, writ denied).
9See local Gov't Code 158.012(a).
tORepealed by Act of May 1, 1987, 70th Leg., R.S., ch. 149, 49(1), 1987 Tex. Gen. Laws 707,
1307.S1See Id. 84.021(a).
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Texas. Attorney-General's Office. Texas Attorney General Opinion: LO96-100, text, September 23, 1996; (https://texashistory.unt.edu/ark:/67531/metapth277133/m1/2/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.