Untitled Texas Attorney General Opinion ( 1973 )

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A-m- o-AI.
August 24,
George N. Rodriguez, Jr. Opinion No. H- 89
El Paso County Attorney
Room 201 City-County Building Re: Whether fees collected
El Paso, Texas 79901 under Articles 42. I2
and 42.13, V. T. C. C. P.,
may be used to finance
operation of Juvenile
Dear Mr. Rodriguez: Probation Department
Your letter of May 22, 1973, requests an opinion of this office as
to whether fees collected from adult probationers under $ba(a) of Article
42.12 and Article 42.13, Texas Code of Criminal Procedure, can properly
be used in financing the costs of operation of a juvenile probation depart-
ment.
Section 6a(a) of Article 42.12 (The Adult Probation and Parole Law)
provides as follows :
“Sec. 6a. (a) A court granting probation may
fix a fee not exceeding $10 per month to be paid to
the court by the probationer during the probationary
period. The court may make payment of the fee a
condition of granting or continuing the probation. ”
Article 2338-1, Vernon’s Texas Civil Statutes, concerns “delinquent
children. ” Section 13 of Article 2338-l authorizes the juvenile court, after
hearing to:
“(I) place the chi.ld on probation or under super-
vision in his own home or in the custody of a relative
or other fit person, upon such terms as the court shall
determine; . . . .
p. 407
The Honorable George N. Rodriguez, page 2 (H-89)
“(3) make such further disposition as the court
may deem to be for the best interest of the child, except
as herein otherwise provided. ”
We have found no provision in Article 2338-l or related statutes for
collecting a supervisory fee similar to the one provided for in Article
42.12 above. Section 12 of Article 42.12 now makes § 6a thereof applicable
to Article 42.13, The Misdemeanor Probation Law. Before 1967, it did
not. See Acts 1967, 60th Leg., p. 1745, ch. 659 S29. Compare Attorney
General Opinion M-985 (1971).
You have referred us to Attorney General Opinion No. M-784 (1971)
which discusses the proper use of the fee col,lected under Articles 42.12
and 42.13 as follows (emphasis added):
“We are of the opinion that the phrase ‘for
use in administering the probation laws, ’ as found
in Subsection (b) of Section ba, supra, must be
liberally construed, and considered in connection
with the purpose of the Adult Probation and Parole
Law -- the maintenance of effective probationary
program (cf. the underscored portion of Section 10,
supra).
“Accordingly, you are advised that it is the
opinion of this office that fees permitted to be
collected pursuant to Article 42.12(Q), Texas Code
of Criminal Procedure, may be distributed for the
following purposes, inter alia:
-- salaries ofprobation
officers, secretaries and other office personnel;
probation office expenses: auto travel aHowances
for probation offices: and bona fide educationa, train-
ing expenses for probation officers (including regis-
tration fees, travel, and subsistence expenses while
attending seminars or taking academic training at
colleges or universities or other appropriate insti-
tutions which sponsor courses of study or training
p. 408
.’ .
The Honorable George N. Rodriguez, Jr., page 3 (H-89)
relevant to the education and training of probation
officers). The foregoing purposes are authorized by,
and within the scope of, the Adult Probation and
Parole Law. ”
The question here is whether the funds collected can be used to
finance juvenile probation programs.
Section 6a(b) of Article 42.12 provides that “the court shall distribute
the fees. . . for use in administering the probation laws. ‘I Section 10 of
Article 42.12 contains some ,language which indicates the possibility of a
co-relation between adult and juvenile probation programs. It reads in
part:
“The judge or judges, with the approval of the
juvenile board of the county, may authorize the chief
probation or chief juvenile officer to establish a sep-
arate division of adult probation and appoint adult
probation officers and such other personnel as required.
It is the further intent of this Act that the same person
serving as a probation officer for juveniles shall not
be required to serve as a probation officer for adults
and vice-versa. ”
It is certainly the general duty of the various district courts to act
in the best interests of juveniles and to protect their rights and interests
in every way possible. See Echols v. State, 481 S. W. 2d 160 (Tex. Civ.App.,
Houston, 1972); Dudley v. State, 219 S. W. 2d 574 (Tex. Civ.App., Amarillo,
1949).
After considering al,1 of the above we have concluded that the primary
purpose of the fund in question is the financing and administration of the
Adult Probation Law as specified in Opinion No. M-784 quoted above.
However, if such purpose is fulfilled and surplus funds arc on hand
we cannot say that the statute or the legislative intent prohibits use of such
funde for financing and administering juvenile probation.
p. 409
The Honorable George N. Rodriguez, Jr., page 4 (H-89)
We therefore hold that the district judge or judges charged with
the responsibility of administering the Adult Probation Laws under
Articles 42.12 and 42.13 may .in their discretion direct the use of sur-
plus funds for administration of juvenile probation.
SUMMARY
Fees col.lected under Artic:les 42.12 and 42.13,
Texas Code of Criminal Procedure, should be used
primarily for adult probation but surplus funds can
be used for juvenile probation in the discretion of the
district judge or judges charged with the responsibility
of administering adult probation laws.
Yours very truly,
A
v Attorney General of Texas
_AqBROVED:
DAVID MI KENDALL, Chairman
Opinion Committee
p. 410