Untitled Texas Attorney General Opinion ( 1974 )

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THEA~TORNEYGENERAL
OFTEXAS
September 24, 1974
The Honorable William H. Skelton Opinion No. H- 409
Board of Pardons and Paroles
Division of. Parole Supervision Re: Status of Director of
711 Stephen F. Austin Bldg. Division of Parole
Austtp. Texas 78701 Supervtrion, Board of
Pardons and Paroles,
and iutor relationrhip
between Director and
Dear Dr. Skelton: Board
In your letter of ,March 7, 1974, you ask the following rpecific
questions involving the captioned matter:
Under the provisions of Article 42.12 (78Jd)
C.C.P., is the Director of the Division
of Parole Supervision the Executive Head
of this agency?
If not specifically designated by statute, can
the Board of Pardons and Paroles designate
this position as the Executive Head of this
agency for all purposes?
If the Director of the Division of Parole Super-
vision is. or can be designated as, the Executive
Head of this agency, what legal obligation is
placed on the Director?
Is the Director required to file an official
financial statement required pursuant to
Article 6252a,D. A. C. S. 7
Does the Board of Pardon0 and Paroles have any
legal obligatton for actions taken by the Director
of Parole Supervision as the Executive Head of
,tbe agency? For instance, what ie the liabiltty
of the Board if a suit is filed through the Equal
Employment Opportunity Commission for action
take.n by the Director?
p. 1906
.-. .
Tbe Honorable William H. Skelton, page 2 (H-409)
In your inquiries you refer repeatedly to “this agency”, presumably
meaning the Division of Parole Supervision of the Board of Pardons and
Paroles. In our opinion the threshold question is whether thts division is
properly characterized as an “agency” as that term is generally employed
and understood in various statutory schemes, particularly Article 6252-9b,
V. T. C. S. Although the matter is not free from doubt, it is our con-
clusion that this “Division” is merely a sub-division of the Board of
Pardons and Paroles and is not itself an “agency”.
It is difficult to define “agency” in the abstract - experts cannot~even
agree how many federal “agencies” exist, for example. See Davis, Admini-
strative Law Treatise, Sec. 1.02. Clearly, the designation employed, be
it commission, bureaui department, etc., will not always be, of controlling
legal significance. The issue must be resolved with a common sense
approach, considering each particular entity involved on an individual
basis.
A generally accepted definition from Davis, supra, Sec. 1.01, is: “An
administrative agency is a governmental authority, other than a legislative
body, which affects the rights of private parties through either adjudication
or rule making.” See also Sec. l(1) of Uniform Law Commissioners’ Model
State Administrative Procedure Act (1970). Even if not engaged in formal
rule making or adjudication an “agency” should at the very least be rela-
tively autonomous within its sphere of delegated authority, with a governing
body possessing policy making functions and powers. For example, the
twenty-seven I’major state agencies” enumerated in Sec. 2 of Article 6252-9b
all have a policy making body at the head. Significantly, the various sub-
divisions or “departments” of these agencies are not listed.
The Division of Parole Supervision is created by the provisions of
Article 42.12, Sets. 26 - 32, V. T. C. C. P. An examination of the pertinent
provisions of this Article, quoted below, establishes that thir Division does
not meet any of the above criteria for an administrative agency.
Sec. 26 The Board of Pardon.8 and Paroles shall
have genera1 responsibility for the investigation and
supervision of all prisoners released on parole. For
the discharge of this responsibility, there Is hereby
created with the Board of Pardons and Paroles, a
Division of Parole Supervision. Subject to the general
p. 1907
The Honorable William H. Skelton, page 3 (H-4091
direction of the Board of Pardon6 and Paroler, the
Mvi6ion of Parole Supervl6ion, including its field
staff shall be responsible for obtatning and assembling
any facts the Board of Pardons and Paroles may deeire
in considering parole eligibility, and for invertigating
and supervising paroled prisoners to see that the con-
ditions of parole are complied with, and for making
such periodic report6 on the progrerr of parolees
as the Board may desire.
Sec. 28 Salaria of all employee6 of the Divi6ion
of Parole Supervision shall be goveraod by Approp-
riations Acts of tbt Legislature, The Board of Pardon6
and Paroles shall appoint a Director of the Division,
andall other employees shall be selected by the
Director, subject to such general policies and regu-
lations as the Board may approve.
Clearly the Director of the Division of Parole Supervision por.resrer
no rule-making or adjudicatory powers. The primary functions of the
Director and his staff involve obtaining and collecting facto, iavesti-
gating and supervising, aII subject to the direction and control of the Board
of Pardons and Paroles. There’is no separate body established to formulate
policy for the Division and, in actuality, the Division and its director have
no legal autonomy whatsoever.
If the Division of Parole Supervision is not an agency then the director
thereof cannot be the “executive head” of an agency and Question 1 must be
answered in the negative. The Board of Pardons and Paroles of cour6e
cannot create an agency and consequently Question 2 is also answered in
the negative. This is not to say that the Board cannot delrignate the director
as an “executive head” of the Division, but it is not clear what legal sig-
nificance, if any, such deeignation might have.
With respect to Question 3, the legal duties and obligations of the
Director are clearly set out in Sets. 26 - 32 of Article 42.l2, and it .is not
at al1 clear how or why his designation as Qxecutive head”,6hould have
had any bearing on the matter. The duties of the Board itself, and par-
ticularly the chairman, are established by Article 4, Sec. 11 of the Texas
Constitution and Article 42.12, and these duties and r6SpOn6ibt~iti66 cannot
be delegated to the Director of the Division of Parole Supervision.
p. 1908
.
.
.
The Honorable William H. Skelton, page 4 (H-409)
The answer to~Cue6tion 4 is also negative. Preaurnably the Division
Director would qualify as an “Executive Head of a state agency” within the
meaning of Sec. 2(6) of Article 6252-9b if the Division of Parole Super-
vision were to be considered a “state agency”. Article 6252-9b(g)
defines “State Agency” as “(A) any department, commission, board,
office, or other agency that: (1) is in the executive branch of state
government: (2) has authority that is not limited to a geographical portion
of the state; and (3) was created by the constitution or a statute of this
state.” (Emphasis added) This definition is of little assirtance in re-
solving the question of whether the Division of Parole Supervision is a
state agency. The underlined language, “or other agency” return6 one to
the original threshold issue - what is an "agency". In our opinion, the
Legislature intended the Act to apply only to an autonomo\r entity exer-
cising policy making powers within a particular area and not to a mere
sub-division or portion of an acknowledged or recognisod agency. As
previously discussed, the Division of Parole Supervision ha6 nom of the6e
features. It is noteworthy in this connection that when the Legislature
intends a statutory scheme to be applicable to sub-divisions or portions
of an agency it knows how to expressly manifest thi6 intent. Thus
Article 6252-17a. V. T. C.S., the Gpen Records Act, is made applicable
to “government agencies and bodies” and “Governmental Body” is
defined in part as: “the part, section, or portidn of every organiration,
corporation, committee, institution, or agency which io supported in
whole or in part by public funds, or which expends public funds . . . ‘I
[Sec. 2(I)(F) of Article 6252-17a. Emphasi6 added].
The foregoing conclusion makes it unnecessary to re6pond at length
to Ouestion 5. The Board of Pardons and Paroles is as legally responsible
for the conduct of the Director of the Division of Parole SupervMon as it
is for the conduct of any other official or employee of the Board,
SUMMARY
The Division of Parole Supervision eetablilhed
by the terms of Article 42.12 is merely a subdivision
of the Board of Pardons and Paroles, is not a separate
“&ate agency” as that term i6 ordinarily employed
and understood in statutory provisions, and the Director
p. 1909
The Honorable William H. Skelton, page 5 (H-409)
of the Divi6ion is therefore not the executive
head of a state agency within the meaning of
Article 6252-9b,
Very truly yours,
Attorney General of Texa6
APPROVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1910