Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
AATrOX December 13, 1984
,
,mey Qenerrl
Ronorablc Hike Driscoll opinion no. 311-247
Rarria County Attorne]r
1001 Preston, Sulto 634 UC:
.- Whether
.- rcspoaaibility for
--___
Rouaton. Texaa 77ln.u the Ratrio County Child Support
Division may be tranaferred
from the Juvenile Board to the
Domestic Relations Office
Dear Mr. Driscoll:
You inform us that the Earris County Juvenile Probation
’ 41bwl* AW.. eune lso Department has ‘cstabllshed s Child Support Division. It Is our
w.lx. 7ow&2703 understanding that tho Rarris County Juvenile Board has dealgnated the
chief ,juvenile probation officer to receive child support payments in
Harris County pursuant to section 10(a) of article 5139W, V.T.C.S.
t*xrs, SUllO no
mton. lx. 77002-3111 In that kegard. you ask:
r223sem
1. Is the Child Support Dlviaion, ss it la nov
attached to the Rarris County Juvenile Probation
Department II ‘child support collection service
specifically established by statute’ [within the
meaning of section 7(a) of article S142a-1.
V.T.C.S.]?
JO N. Tenth, SuIta I)
.dm.lx 78m.16%
'W4S4? 2. You’ll the collissioners court be allowed to
transfer -‘r~t:~ponsibllity for the Child Support
Division .from the Juvenile Board to the Domestic
4ah-lPlua. tmt* 400 Relations Office [established pursuant to article
&ntonlo.lx ?32052?0? 2338-le. ‘V.rX.S.]?
212254101
The Harris County Coamisaioners Court has only the powers
conferred either expressly or by necessary implication ‘by the
constitution and statutea of thia atate. See Tex. Conat. art. 0. 518;
Cannales’v.%aughlio, 214 S.Y.2d 4S1, 4537%. 1948). We begin with
a the *orking lssumptloo that the tollaction of child support payments
ln Rarris County uy arguably be governed by articlea 5139W, 5142a-1,
and/or 2338-le. V.T.CI.S. We vi11 analyze there statutes to determine
vhich:ones actually e,overn this matter. Thus, the ansvera to your
questions will depeo,d upon which of these statutes authorizes the
collection of child rupport payments In Rerris County.
p. 1105
.
. .
Honorable Hike Driacoll - Page 3 (m-247)
See. 2. (a) A domestic relations office
established under Ssclios 1 of this article may be
lda inia ter byed the Jwrenile bosrd of a county or
ulticounty srea or athsnise as provided by the
comissioners court.
(b) Any domestic wlatlons office currently in
existence by statute or trsdition and vhich has
been under the conrrol of and governed by a
juvenile board by Matute or tradition shall
continue to operate under the current admialstra-
tion as established b:r such statute or tradltion.
. . . .
Sec. 7. (a) This article does not apply to a
county in which achir5 support collection service
is epeciflcally estabzlshed by statute.
(b) This arti&! is cumulaiive of other
statutes relsting to juvenile boirds and child
support collection offices.
(c) Another statut:e relating to funds for the
operation of a child support office and providing
for an additional :!S.ling fee in excess of $5
prevails over this Act to the extent that the
other ststute collflicts with the UXbN
edditional filing fee provided by this Act.
@@hasis added).
Id. This statute excepts frnr its application those counties “in
Which a child support collect:ltm service is speclficelly established
by statute. . . .” V.T.C.S. art. 5142a-1. 17(a). As indicated above,
the legislature has establishal the Juvenile Board of Harris County
with the duty to “direct vhel:her . . . the chief juvenile probation
officer shall receive paymwtr for the support of wives and
children. . . .” See V.T.C.S, art. 5139W. 55(f). Accordingly, In
response.. to your.. firbt question , YC conclude that the Child Support
Divlalon’; of the Rarria County Juvenile Probation Department
lstabliahed,pursuant to lrticl.e! 5139W. V.T.C.S.. is a “child aupport
collection service : . . spec~lfieally astabliahed by atatute” vithin
the meaning of mection 7(a) af article 3142a-1, V.T.C.S. The Rarria
Coucty Cocmissioners Court may latablfah s child support collection
service only pursuant to article 5139W. V.T.C.S.’
In regard to your second question , the general rule ia that vhen
the legislsturs impoaee upon an officer or govermental board the
performance of certain acts as part of an official duty, the
p. 1107
Honorable Iiike Driscoll - Page 2 (247)
The Harris County Juvenile I?robation Department vas lstabliehed
in 1965 slong vith the Harris County Juvenile Board by the Texaa
Legislature. See V.T.C.S. art. 5139W, 111, 11. Section 10(a) of
article 5139Wzs amended in 10’15. provides that the Juvenile Board
has the pover -- independently of! the comlssioners court and at its
option -- to direct the chief juvenile probation officer to receive
child support payments. The only other person the Juvenile Board may
authorize under the act to rweive child support payment is the
dlatrict clerk. See
- V.T.C.S. art. 5139W. 610(b).
Section 1 of article 2338-1s. V.T.C.S., provides:
Section 1. In counties having a population in
excess of 2.000,000, aa shown by the last
preceding United States Census, the count
commissioners court -pay create a domestiz
relations office to pwvide services to eetablish
and enforce court orders providing for the support
and/or visitation right,s to a child, to establish
paternity or legitimation of a child, aod to
provide informational services to assist parties
affected by a cour’i order la understanding,
complying vith, and enforcing the duties and
obligations in the court order pertaining to child
support and rights of visitation. Upon such
creation, said designated county office shall be
directly responsible to the commissioners court.
The chief admlnistratA,ve officer of the designated
county office so created shell be appointed by a
majority vote of the comissioners court of the
county. (Emphasis adclad).
Harris County falla within the: 2.000,OOO population bracket of the
statute. He conclude that the dominant purpose of article 2338-le is
to authorize the Earrls Count:j Coomissioners Court to establish a
Domestic Relations Office to act: as a legal sgency to provide those
legal servicas necessary to assist those persone having s legal right
to child support snd/or vlsital:l.on privileges. The statute does not
authorize the comissioners cod’rt to establish a Domestic Relations
Office to function as a collection service to receive and/or
distribute child support paymews.
A county co~isaloners court io also authorized to establish a
Domestic Relations Office pursu,uit to article S142a-1, V.T.C.S., which
providea:
Section 1. The comnis~ioners court of a county
may establish a domestic relstions office vith the
p&err and duties as provided in this article.
.
p. 1106
.
Honorable Mike Drieeoll - Page 4 (JR-247)
colaissioners Court 1s vithout authority to trsnsfer the performance
of that official dutv to any ot’hdr person or body thao that named in
the law. See Aldrich v. Dalias C,ti, 167 S.W.Zd 560 (Tex. Civ. App.
- Dallas 1922, vrit dlrr``‘arro County v. Tullos, 237 S.W. 982
(Tex. Civ. APP. - Dallas 1921: vrit ref’d). You ask whether ths
Rarris County C~issioners ‘Court is bthorized to transfer
responsibility for the Child Sllpport Division of the Harris County
Probation Department vhich was created pursuant to article 3139W,
V.T.C.S., to the Domestic Relations Office established pursuant to
article 2338-18. V.T.C.S. As previously stated, the Domeatic
Relations Office, which is directly responsible to the commissioners
court. has the duty of providing those legal services necessary to
ensure a party’s right to child :support and/or visitation privileges.
On the contrary. the Child Support Division of the Harris County
Probation Departmeot is administered by the chief juvenile probation
officer. but it is responsible to the Harris County Juvenile Board.
See Harris County v. Schoenbschew, 594 S.W.Zd 106 (Tex. Clv. App. -
Rouston [let Dirt.] 1979, writ re:f’d n.r.e.).
Accordingly, the Barris (County Comissioners Court is not
authorized to ignore the duties imposed on the Aarris County Juvenile
Board to provide a child suppol:t: collection service and transfer the
performance of that function to the Domestic Relations Office.
S II ti I4 A R Y
--
The Child Support Iklvision of the Harris County
Juvenile Probation Department vas specifically
established by article s139w. V.T.C.S.;
accordingly, article !ilbZa-1. V.T.C.S., does not
govern the collection of child support payments in
Hsrris ‘County. Additionally, the Rarrls County
CoPnissioners Court is vithout authority to
transfer the Child Support Division from the
Juvenile Board to the Domestic Relations Office
established pursuant to article 2338-le. V.T.C.S.
Attorney General of Texas
TOMGREEN
First Assistant Attorney Genercll
‘J. 1108
Honorable Hike Drircoll - Pap* 5 (a-247)
DAVID R. RICRARDR
Executive Aeoirtant Attorney Gen.eral
RICK CILPIN
chairman, oplnloa comitte*
Prepared by Tony Culllory
Aaei8tant Attorney General
APPROVD:
OPINIONCOMHITTSE
Rick Gilpin, Cbairmsn
Colin Carl
Susan Garrlron
Tony Guillory
Jim Hoellingcr
Jennifer Rig@
Nancy Sutton
p. 1109