Untitled Texas Attorney General Opinion ( 1984 )

I
The Attorney General of Texas
April 11, 1984
JIM MATTOX
Attorney General
Supreme Court Building Honorable Jim Bob Darnell opinion No. JM-144
P. 0. Box 12548 Criminal District Attorney
Austin, TX. 79711. 2548 Re: Whether a rule of the
2nd Floor
5121475-2501
Lubbock County Courthouse Texas Juvenile Probation
Telex 9101874-1367
Telecopier 512/475-0266 P. 0. Box 10536 Commission violates the Texas
Lubbock, Texas 79408 Constitution or statutes
714 Jackson, Suite 700
Dear Mr. Darnell:
Dallas, TX. 75202-4506
2141742-8944
You have asked whether the
4824 Alberta Ave., Suite 160 Texas Juvenile Probation Commission standard
El Paso, TX. 79905.2793 section 341.4(d), which requires juvenile
9151533.3484
probation officers to be paid not less than adult
r
probation officers in the county or district,
1001 Texas. Suite 700 violates either the Texas statutes or
Houston, TX. 77002-3111 constitution.
7131223-5986
Texas Juvenile Probation Commission Standard section 341.4(d)
806 Broadway, Suite 312
provides, in pertinent part, that
Lubbock, TX. 79401-3479
8061747-5238 [the] juvenile board shall ensure that all salary
levels of juvenile probation department personnel
are reasonable and comparable with prevailing
4309 N. Tenth. Suite B
McAllen, TX. 78501.16fl5 salaries of the public and private sectors, in the
5121682-4547 respective county or district, but in no case will
the salary scale for juvenile probation officers
be less than the salary scale for adult probation
200 Main Plaza, Suite 400
San Antonio, TX. 78205.2797
officers.
5121225-4191
In 1981, the Texas Legislature enacted chapter 75 of the Texas
Human Resources Code and article 5138d. V.T.C.S., in the same bill to
An Equal Opportunity/ improve the juvenile justice system by improving the effectiveness of
Affirmative Action Employer
probation services, providing financial aid from the state to juvenile
boards for probation services, and establishing uniform probation
administration standards. -See Texas Human Resources Code 975.001.
The pertinent part of article 5138d reads as follows:
(b) In all Texas counties, the juvenile
r board . . . may, with the advice and consent of
p. 619
Honorable Jim Bob Darnell - Page 2 (JM-144)
the commissioners court, employ and designate the
titles and fix the salaries of probation
officers . . . according to the standards
established by the Texas Juvenile Probation
Commission and the needs of the local jurisdiction
as determined by the juvenile board . . . . This
determination, if inconsistent with salaries
established by laws governing the creation of a
juvenile probation department for a particular
jurisdiction, supersedes and controls over those
statutory provisions.
Prior to 1981, several statutes provided that compensation of
juvenile probation officers would be fixed by certain juvenile boards
"subject to the approval of the commissioners court." Such statutes
were interpreted as authorization to the commissioners court to reject
the compensation set by the juvenile board and to refuse necessary
approval of a budget submitted by the juvenile board for the
compensation of juvenile probation officers. See V.T.C.S. arts.
5142b, 5142c, 5142d; Attorney General Opinion MW-15 (1979). The
enactment of article 5138d in 1981 impliedly repealed those prior
statutes to the extent of conflict. If a conflict exists between two
?
Etatutes, the earlier enactment is repealed by the later. See Stevens
v. State, 159 S.W. 505, 507 (Tex. Grim. App. 1913). Also, inAttorney
General Opinion MW-587 (1982). this office determined that article
5138d expressly overrules salary determinations made under those prior
statutes, and we agree with that conclusion.
Section 75.041 of the Texas Human Resources Code directs the
Texas Juvenile Probation Cormnissionto promulgate reasonable rules for
juvenile boards establishi~ng minimum standards for personnel,
staffing, case loads, programs, facilities, record keeping, equipment,
and other aspects of the operation of a juvenile board necessary for
the provision of adequate and effective probation services.
The provision in standard section 341.4(d) requiring juvenile
probation officers to be paid not less than adult probation officers
is such a "standard established by the Texas Juvenile Probation
Commission." In Attorney General Opinion MW-587, this office
concluded that the language in article 5138d confers on juvenile
boards the same authority to fix the salaries of juvenile probation
personnel that the adult probation statute (article 42.12, section 10.
Code Criminal Procedure), confers on district judges regarding the
salaries of adult probation personnel. In other words, the
controlling statute, article 5138d. provides for consultation with the
commissioners court by the juvenile board in fixing the salaries of
juvenile probation officers, but it does not authorize the
conrmissionerscourt to reject the compensation set by the juvenile ?
,
board in accordance with standards established by the Texas Juvenile
p. 620
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Honorable Jim Bob Dame11 - Page 3 (JM-144)
Probation Commission, unless there is clear abuse of discretion. See
Commissioners Court of Hays County v. District Judge, 506 S.W.2d 630
(Tex. Civ. App. - Austin 1974, writ ref'd n.r.e.); Commissioners Court
of Lubbock County v. Martin, 471 S.W.Zd 100 (Tex. Civ. App. - Amarillo
1971, writ ref'd n.r.e.). Accordingly, we conclude that Texas
Juvenile Probation Comission Standard, section 341.4(d) is authorized
by Texas statutes.
It is well established that a county has only those powers or
duties which specifically are conferred on it by the constitution and
statutes of this state. See Canales v. Laughlin, 214 S.W.2d 451, 453
(Tex. 1948); Renfro v. Shr?hire, 566 S.W.Zd 688, 690 (Tex. Civ. App.
- Eastland 1978, writ ref'd n.r.e.); Harrison County v. City of
Marshall, 253 S.W.Zd 67, 69 (Tex. Civ. App. - Fort Worth 1952, writ
ref'd).
Article V, section 18 of the Texas Constitution vests the
commissioners court with "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." Neither article V, section
18, nor any other provision of the constitution, precludes the
leeislature from comittinn anv countv business to some other anencv.
Gairett v. Commissioners tour; of Limes,tone County, 230 S.W.-1010,
1016 (Tex. Civ. App. - Dallas 1921), ref d on other grounds, 236 S.W.
970. Article XVI, section 61 of the Texas Constitution, which relates
to compensation for certain district and county officers on a salary
basis, as distinguished from a fee basis, is not applicable to the
constitutionality of standard 341.4(d).
Further, article III, section 44 of the Texas Constitution
provides that "the legislature shall provide by law for the
compensation of all officers, servants, agents and public contractors
not provided for in this constitution." The duty of providing for
compensation by law rests solely with the legislature, but section 44
does not prevent the legislature from empowerin~gother authorities to
determine salaries, as long as it provides guidelines capable of
reasonable application. The fixing of the exact sum of compensation
is a constitutionally delegable right. See In re Johnson, 554 S.W.2d
775 (Tex. Civ. Ann. - Cornus Christ1 1977. writ ref'd n.r.e.1 569
S.W.22 882; Commissioners Court of Lubbock County v. Martin, &, at
105. The provisions of chapter 75 of the Human Resources Code and
article 5138d, which authorize juvenile boards to fix the salaries of
juvenile probation officers according to the needs of the local
jurisdictions and the uniform standards which the legislature directed
the Texas Juvenile Probation Commission to establish, constitute such
a delegation of the power to set compensation. Therefore, we believe
the statutes authorizing the promulgation of Texas Juvenile Probation
Commission Standard section 341.4(d) are a constitutjonal delegation
of authority by the legislature.
p. 621
. .
Honorable Jim Bob Darnell - Page 4 (JM-144)
SUMMARY
Texas Juvenile Probation Comission Standard
section 341.4(d), which requires that juvenile
probation officers not be paid less than adult
probation officers in the county or district,
violates neither Texas statutes nor the Texas
Constitution.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy Sutton
Assistant Attorney General
APPROVFD:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Jim Hoellinger
Nancy Sutton
p. 622