Untitled Texas Attorney General Opinion ( 2013 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 19, 2013
The Honorable Noble D. Walker, Jr. Opinion No. GA-0991
Hunt County District Attorney
Post Office Box 441 Re: Whether a district judge may prohibit the
Greenville, Texas 75403-0441 director of a community supervision department
from delegating his duties with regard to
The Honorable Joel Littlefield presentence investigations (RQ-1 089-GA)
Hunt County Attorney
Post Office Box 1097
Greenville, Texas 75403-1097
Dear Mr. Walker and Mr. Littlefield:
You present five questions about the authority of a district judge over the operations of
the Hunt County Community and Supervisions Department: 1
1. Does a district judge have the legal authority to order the
director of the Department to personally conduct a presentence
investigation pursuant to Article 42.12, Section 9 of the Texas
Code of Criminal Procedure?
2. Does a district judge have the legal authority to prohibit the
Director of the Department from delegating any responsibilities for
the preparation and presentment of a presentence investigation
report?
3. Does a district judge have the legal authority to require the
Director of the Department to request permission and receive
approval from said judge to delegate the activity involved in the
preparation and presentment of a presentence investigation report?
1
Letter from Hon. Noble D. Walker, Jr., Dist. Att'y, & Hon. Joel Littlefield, Cnty. Att'y, to Hon. Greg
Abbott, Tex. Att'y Gen. at 2-3 (Oct. 1, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").
The Honorable Noble D. Walker, Jr. - Page 2 (GA-0991)
The Honorable Joel Littlefield
4. Does a district judge have the legal authority to require the
Director of the Department to appear in court for the purpose of
presenting an ordered presentence investigation report?
5. May a district judge order a specifically named supervision
officer employed by the Department to conduct a presentence
investigation, thereby overriding the statutory authority of the
Director to delegate the responsibility of preparing the presentence
investigation report and the statutory limitations imposed upon a
district judge with regard to Department personnel?
Request Letter at 2-3. Your questions implicate article 42.12 of the Code of Criminal Procedure
and chapter 76 of the Government Code. Where we can, we consider related questions together.
A presentence investigation report is required by article 42.12, section 9 of the Code of
Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(a) (West Supp. 2012). Article
42.12 is the state's community supervision, or probation, statute. See id. art. 42.12, §§ 1-24
(entitled "Community Supervision"). Article 42.12, section 9 provides, with some specified
exceptions, that before the imposition of sentence by a judge in a felony case or a misdemeanor
case
the judge shall direct a supervision officer to report to the judge in
writing on the circumstances of the offense with which the
defendant is charged, the amount of restitution necessary to
adequately compensate a victim of the offense, the criminal and
social history of the defendant, and any other information relating
to the defendant or the offense requested by the judge.
/d. § 9(a), see also id. § 9(b), (g) (specifying exceptions). Section 9 expressly provides that the
court "shall direct a supervision officer" to report to the judge. See id. § 9(a). A "supervision
officer" is "a person appointed or employed under Section 76.004, Government Code, to
supervise defendants placed on community supervision." /d. § 2(3).
Chapter 76 of the Government Code governs Community Supervision and Corrections
Departments ("CSCD" or "department"). TEX. Gov'T CoDE ANN. §§ 76.001-.018 (West 2005
& Supp. 2012). It provides for the appointment of a CSCD director who "shall perform or
delegate the responsibility for" performing enumerated duties, which include "overseeing the
daily operations of the department." /d. § 76.004(a), (a-1)(1) (West Supp. 2012). Section
76.004, referred to by article 42.12, section 9, provides for the employment of supervision
officers to conduct, among other things, presentence investigations. /d. § 76.004(b). Section
76.004 also provides that the CSCD director employs department personnel and expressly states
that a "person employed [under subsection 76.004(b)] is an employee of the department and not
of the judges or judicial districts." /d. § 76.004(b). In addition, chapter 76 provides that the
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The Honorable Joel Littlefield
responsibility of the appointing judges "for personnel decisions is limited to the appointment of a
department director and a fiscal officer." ld. § 76.0045(a).
Relevant to your first and fourth questions, you tell us that the director of the department
"does not perform the functions of a supervision officer in that the director does not supervise
persons placed on probation." Request Letter at 4. Given that fact, the director here is not a
"supervision officer" under article 42.12. Because the director is not a supervision officer, the
district judge's authority under article 42.12, section 9(a), to "direct a supervision officer" to
prepare the presentence investigation report does not include the authority to require this director
to prepare a presentence investigation report. Accordingly, in answer to these questions, a
district judge does not have authority to order the director of the department who does not
supervise defendants placed on community supervision to personally conduct a presentence
investigation report. Nor does a district judge have authority to order such a director to
personally appear in court to present the ordered presentence investigation report.
Your second and third questions relate to a director's authority to delegate the duties that
article 42.12, section 9(a) imposes. Request Letter at 2. We first note that article 42.12, section
9(a) does not impose any duties on the director. See TEX. CODE CRIM. PROC. ANN. art. 42.12, §
9(a) (West Supp. 2012). Instead, it imposes a duty on "a supervision officer" to include in the
report a description of certain information about the defendant and the offense. ld. § 9(a).
Section 76.004 of the Government Code authorizes a director to delegate six duties, none of
which is a duty that article 42.12 expressly imposes on a judge or supervision officer. TEX.
Gov'T CODE ANN. § 76.004(a-1) (West Supp. 2012). Thus, a director would not have the
authority to delegate duties that are assigned to someone else under article 42.12, section 9(a). A
director would, however, have the authority to delegate duties that are not assigned to someone
else under article 42.12, section 9(a), and that are assigned to him under section 76.004.
Presumably, article 42.12, section 9(a), does not list all of the duties involved in the preparation
and presentation of a presentence investigation report. Likewise, the responsibility for
"overseeing the daily operations of the department" could include decisions involving the
preparation and presentment of a report. See id. § 76.004(a-1)(1). Therefore, in answer to your
second and third questions, a director may delegate report preparation and presentation duties
that article 42.12, section 9(a), does not specifically impose on someone else.
We turn to your last question. Article 42.12, section 9(a) authorizes a judge to "direct a
supervision officer" to make the report. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(a) (West
Supp. 2012). The indefinite article "a" means "any," and without more, could be construed
broadly to authorize a judge to order any of the supervision officers, including a particular one,
to prepare the report. See Tex. Att'y Gen. Op. No. GA-0694 (2009) at 1-2 (noting the indefinite
article "a" means "any") (citing Chavira v. State, 319 S.W.2d 115, 120 (Tex. Crim. App. 1958)).
But as we have already noted, with the exception of the department director and fiscal officer,
chapter 76 limits the involvement of a district judge over personnel decisions in the department.
In addition, other provisions of article 42.12 suggest that the Legislature knows how to
specifically identify personnel whom a judge may direct. See TEX. CODE CRIM. PROC. ANN. art.
42.12, §§ 9(h) (West Supp. 2012) ("judge shall direct a supervision officer approved by the
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The Honorable Joel Littlefield
community supervision and corrections department or the judge . .. to conduct an evaluation");
18(d) ("As directed by the judge, the community corrections facility director shall file ... a copy
of [the] evaluation ... .");see also Tex. Att'y Gen. Op. No. GA-0880 (2011) at 2 n.3 (citing FM
Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) for the proposition
that the Legislature knows how to enact a law effectuating its intent). For these reasons, a
district judge likely is not authorized to order a specifically named supervision officer to conduct
a presentence investigation report.
The Honorable Noble D. Walker, Jr. - Page 5 (GA-0991)
The Honorable Joel Littlefield
SUMMARY
Under article 42.12, section 9(a) of the Code of Criminal
Procedure, a district judge does not have authority to order the
director of a community supervisions and corrections department
("director") who does not supervise defendants placed on
community supervision to personally conduct a presentence
investigation report. Nor does a district judge have authority to
order such a director to personally appear in court to present the
ordered presentence investigation report.
A director may delegate report preparation and presentation
duties that article 42.12, section 9(a), does not specifically impose
on someone else.
Finally, a district judge likely is not authorized to order a
specifically named supervision officer to conduct a presentence
investigation report.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chairman, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee