Untitled Texas Attorney General Opinion ( 2017 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 8, 2017
The Honorable Nicholas "Nico" LaHood Opinion No. KP-0146
Bexar County Criminal District Attorney
Paul Elizondo Tower Re: Authority of a county commissioners court
101 West Nueva, 7th floor that establishes a veterans treatment court
San Antonio, Texas 78205-3030 program under Government Code chapter 124
to direct and control administrative details
including the hiring and supervision of grant-
funded personnel (RQ-0139-KP)
Dear Mr. LaHood:
You ask about the authority of a county commissioners court that establishes a veterans
treatment court program under Government Code chapter 124 to direct and control the
administrative details of the program including the hiring and supervision of grant-funded
personnel. 1 You further ask whether chapter 124 limits a treatment court judge's role to the
direction and control of the disposition of the cases coming before the court and thus does not
include the supervision of grant-funded personnel. Request Letter at 1. Your questions arise out
of a dispute between the commissioners court and the judge of a veterans treatment court over who
the law authorizes to direct, supervise, and select the project director and staff of the veterans
treatment court program. Id. at 2-4.
We construe statutes in the context of their statutory scheme. LTTS Charter Sch., Inc. v.'
C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011) (stating that courts "give unambiguous text its
ordinary meaning, aided by the interpretive context provided by the surrounding statutory
landscape" (quotation marks omitted)). Chapter 124 is located in title 2, subtitle K of the
Government Code, which governs sever.al types of specialty court programs such as drug court
programs and mental health court programs. See TEX. Gov'TCODE §§ 121.001-126.008 (subtitle
K). Chapter 124 authorizes a county commissioners court to establish a veterans treatment court
program, either for the county individually or as a participant in a regional veterans treatment court
program. Id. §§ 124.002(a), .004(a). Section 124.001 defines "veterans treatment court program"
by listing the essential characteristics that the program must possess:
(1) the integration of services in the processing of cases in the
judicial system;
1
Letter from Honorable Nicholas "Nico" LaHood, Bexar Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at 1-4 (Nov. 3, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable Nicholas "Nico" LaHood - Page 2 (KP-0146)
(2) the use of a nonadversarial approach involving prosecutors and
defense attorneys to promote public safety and to protect the due
process rights of program participants;
(3) early identification and prompt placement of eligible participants
in the program;
(4) access to a continuum of alcohol, controlled substance, mental
health, and other related treatment and rehabilitative services;
(5) careful monitoring of treatment and services provided to
program participants;
(6) a coordinated strategy to govern program responses to
participants' compliance;
(7) ongoing judicial interaction with program participants;
(8) monitoring and evaluation of program goals and effectiveness;
(9) continuing interdisciplinary education to promote effective
program planning, implementation, and operations;
(10) development of partnerships with public agencies and
community organizations, including the United States Department
of Veterans Affairs; and
(11) inclusion of a participant's family members who agree to be
involved in the treatment and services provided to the participant
under the program.
Id. § 124.00l(a)(l)-(1 l). Section 124.003 assigns duties to a veterans treatment court program,
requiring the program to ensure that an eligible defendant receives legal counsel and a court-
ordered individualized treatment plan, among other duties. Id.§ 124.003(a)(l), (3). 2
Chapter 124 does not, however, delineate a particular structure for a veterans treatment
court program and does not address the employment of staff. The chapter does not specify the
authority or duties of a commissioners court beyond its general authority to establish a veterans
treatment court program. A commissioners court "has the implied authority to exercise the power
necessary to accomplish its assigned duty." City ofSan Antonio v. City ofBoerne, 111S.W.3d22,
28 (Tex. 2003). "As the administrative head of county government, a commissioners court also
possesses broad implied powers to accomplish its legitimate directives." Guynes v. Galveston
2
As a specialty court under subtitle K, a veterans treatment court program must comply with all
programmatic best practices recommended by the Specialty Courts Advisory Council under subsection
772.0061(b)(2) of the Government Code and approved by the Texas Judicial Council. TEX. Gov'T CODE
§§ 121.002(d)(l), 772.0061(b)(2).
The Honorable Nicholas "Nico" LaHood - Page 3 (KP-0146)
Cty., 861S.W.2d861, 863 (Tex. 1993). Thus, when a commissioners court establishes a veterans
treatment court program, it may exercise its discretion to include those positions and funding
necessary to comply with the statutory definition and duties required in chapter 124. However,
the fact that a commissioners court may create positions in a veterans treatment court program
does not resolve whether the commissioners court may select and supervise the staff of a veterans
treatment court program. 3 The commissioners court must exercise its discretion consistently with
the constitution and chapter 124 and may not usurp duties assigned to other officials such as the
veterans treatment court judge. See Guynes, 861 S.W.2d at 863.
Chapter 124' s provisions describe a "veterans treatment court" and a "veterans treatment
court program" as distinct concepts without expressly specifying the court's authority with respect
to the program. See TEX. Gov'T CODE § 124.00l(a)-(b) (defining "veterans treatment court
program" and requiring a "veterans treatment court" to make a determination with respect to
dismissal of a criminal case). However, a veterans treatment court program is, by its very name,
a program of the veterans treatment court. The veterans treatment court program must ensure
"ongoing judicial interaction with program participants." Id. § 124.001(a)(7). The veterans
treatment court must order an individualized treatment plan for participants. Id. § 124.003(a)(3).
The court must maintain jurisdiction for at least six months but not longer than the period of
community supervision applicable to the offense charged and must conduct a hearing to determine
whether dismissal of pending criminal charges against the participant is in the best interest of
justice. Id. §§ 124.00l(b), .003(a)(4). Chapter 124's inclusion of the court's duties within the
definition and duties of a veterans treatment court program reveals that such a program performs
or assists the performance of a judicial function.
While chapter 124 does not expressly address a court's authority to specify who may select
and supervise program staff, a court _possesses general authority to "appoint appropriate staff and
support personnel according to the needs in each county." Id.§ 74.103; see also id.§ 25.00lO(e)
(authorizing statutory county court judges to "appoint the personnel necessary for the operation of
the court, including a court coordinator or administrative assistant, if the commissioners court has
approved the creation of the position"). In addition, a court has inherent authority, "which it may
call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the
preservation of its independence and integrity." Eichelberger v. Eichelberger, 582 S.W.2d 395,
3 98 (Tex. 1979). Courts have inherent authority to select staff to assist the court in the performance
3
You argue that veterans treatment courts are not authorized to select staff because when the Legislature
"has vested courts with authority over the hiring and supervision of court personnel, it has done so explicitly."
Request Letter at 7. By the same token, however, the Legislature has demonstrated that it knows how to expressly
give a commissioners court a role in the selection of judicial personnel. See, e.g., TEX. Gov'T CODE §§ 25.0024(a)
("A judge of a statutory probate court shall hire with the approval of the commissioners court through the county
budget process a court coordinator, an administrative assistant, and an auditor for the court."), 54.301 (authorizing
certain judges in Dallas County to appoint a magistrate "with the consent and approval of the Commissioners Court"),
54. I 803(a) (authorizing certain judges "with the consent and approval of the commissioners court" to appoint
magistrates for drug court programs). Chapter 124's silence on appointment authority does not illuminate the
Legislature's intent.
The Honorable Nicholas "Nico" LaHood - Page 4 (KP-0146)
of judicial duties. Id. at 398 n.1; Comm'rs Ct. of Lubbock Cty. v. Martin, 471S.W.2d100, 110
(Tex. Civ. App.-Amarillo 1971, writ ref'd n.r.e.) (concluding that a court may select probation
officers); Tex. Att'y Gen. Op. No. GA-1032 (2013) at 4 (concluding that court has authority to
select a bailiff under section 74.103 of the Government Code and its inherent authority as a court). 4
Accordingly, while chapter 124 of the Government Code grants a county commissioners court
authority to create staff positions and provide funding when it establishes a veterans treatment
court program, the veterans treatment court judge, not the commissioners court, is authorized to
select and supervise the staff of a veterans treatment court program. See Abbott v. Pollock, 946
S.W.2d 513, 517 (Tex. App.-Austin 1997, writ denied) (stating "[t]he limitations on the powers
of the Commissioners Court are founded in the policy that elected officers ... discharge the public
trust and carry the responsibility for the proper discharge of that trust, and therefore, should be free
to select persons of their own choice to assist them").
4
See also Henry v. Cox, 483 S.W.3d 119, 146-47 (Tex. App.-Houston [1st Dist.] 2015, pet. granted)
(upholding temporary injunction reinstating a county director of judicial administration). The Texas Supreme Court
has granted a petition for review in Henry, which includes issues concerning the scope of inherent judicial authority.
See Pet. for Review at 10-15, Henry v. Cox, 2016 WL 689851 (Tex. filed Feb. 5, 2016) (No. 15-0993).
The Honorable Nicholas "Nico" LaHood - Page 5 (KP-0146)
SUMMARY
Chapter 124 of the Government Code grants a county
commissioners court authority to create staff positions and provide
funding when it establishes a veterans treatment court program.
However, the chapter authorizes the veterans treatment court judge,
not the commissioners court, to select and supervise the staff of a
veterans treatment court program.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant A~torney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee