Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Tom Wells, III Opinion No. MW-587
Supreme Court Building
Lamar County Attorney
P. 0. Box 12548
Austin, TX. 78711. 2548
Courthouse Re: Salary of Lamar County
51214752501 Paris, Texas 75460 Juvenile Probation Officers
TAX 9101874.1387
Tekwxier 5121475.0286
Dear Mr. Wells:
1607 Main St., Suite 1400
Dallas. TX. 75201.4709 You have asked if the Lamar County Commissioners Court is
2141742.8944 required to approve the salary of the juvenile probation officer as
established by the county juvenile board.
4824 AlbertaAve..Suite 160
El Paso, TX. 79905-2793
Prior to the passage of article 5138d. V.T.C.S., in 1981, article
9151533.3484 5142 et seq. governed the salaries of juvenile probation officers of
particular jurisdictions. Article 5142d provides that juvenile boards
"shall recommend the salary to be paid to [the] Juvenile Officer...
1220 Dallas Ave., Suite 202
which salary shall be approved by the Commissioners Court...."
Houston, TX. 770026986
7131650-0666
(Emphasis added). Under this provision, salaries set by the juvenile
board are not final but conditioned upon the approval of the
commissioners court. Attorney General Opinion H-1296 (1978). See
806 Broadway, Suite 312 also Attorney General Opinion MW-15 (1979) (same result for counties
Lubbock, TX. 79401-3479
covered by article 5142b, which provides that salaries be "fixed by
8061747.5238
the Juvenile Board subject to the approval of the County Commissioners
Court").
4309 N. Tenth. Suite B
MCAI``, TX. 78501.1685 However, in 1981 the Texas Legislature acted to improve juvenile
5121882.4547
probation services throughout the state. As a counterpart to the
Adult Probation Commission, see Code of Criminal Procedure article
200 Main Plaza, Suite 400 42.121, the Texas Juvenile Probation Commission was created to provide
San Antonio, TX. 76205-2797 state aid to local juvenile boards and to set standards for probation
5121225-4191 officers. See Human Resources Code §75.001 et seq. In addition, the
legislatureprovided for the establishment of county j"W"iLS
An Equal Opportunityl probation departments by enacting article 5138d, which reads in
Affirmative Action Employer pertinent part:
(b) In all Texas counties, the juvenile board
or, if there is none, the juvenile court may, with
the advice and consent of the commissioners court,
employ and designate the titles and fix the
salaries of probation officers and of
administrative, supervisory, stenographic, and
p. 2179
, .
Honorable Tom Wells, III - Page 2 (``-587)
other clerical personnel who are necessary to
provide juvenile probation services according to
the standards established by the Texas Juvenile
Probation Commission and the needs of the local
jurisdiction as determined by the juvenile board
or, if there is none, the juvenile court. This
determination, if inconsistent with salaries
established by laws governing the creation of a
juvenile probation department for a particular
jurisdiction, supersedes and controls over those
statutory provisions. (Emphasis added).
The legislature thus expressly provides that the compensation
established under article 5138d overrules salary determinations made
under all other statutory provisions -- including article 5142d.
In Commissioners Court of Lubbock County v. Martin, 471 S.W.2d
100 (Tex. civ. APP. - Amarillo 1971, writ ref’d n.r.e.) and
Commissioners Court of Hays County v. District Judge, 506 S.W.2d 630
(Tex. Civ. App. - Austin 1974, writ ref’d n.r.e.), the courts con-
strued an almost identical standard for setting the salaries of adult
probation officers under article 42.12, section 10 of the Code of
Criminal Procedure. At that time, article 42.12, section 10 provided:
[T]he district judge or district judges... are
authorized, with the advice and consent of the
commissioners court as hereinafter provided, to
employ and designate the titles and fix the
salaries of probation officers, and such admini-
strative, supervisory, stenographic, clerical, and
other personnel as may be necessary....
Given the legislative purpose to create district-wide probation
services and the intent to place the responsibility for probation
supervision within the district courts, the courts concluded that this
statutory language required the judges merely to consult with the
commissioners court in preparing the probation services budget; the
conrmissioners court was not authorized to reject the budget submitted
by the district judges unless the budget was so unreasonable,
arbitrary, or capricious as to amount to an abuse of the judges’
discretion. 471 S.W.2d 107-08. See also Commissioners Court of Hays
County, supra, at 635; Attorney General Opinion M-393 (1969).
In enacting statutes, the legislature is presumed to have taken
notice of court decisions construing prior analogous statutes;
judicial construction of similar language will be read into subsequent
statutes. United Savings Association of Texas v. Vandygriff, 594
S.W.Zd 163, 169 (Tex. Civ. App. - Austin 1980, writ ref’d n.r.e.). We
are therefore of the opinion that article 5138d confers upon juvenile
p. 2180
. .
Honorable Tom Wells, III - Page 3 (MW-587)
boards (the administrative units of the judiciary), or in the absence
of such boards, the juvenile courts themselves, the same authority to
fix the salaries of juvenile probation personnel that the adult
probation statute conferred upon district judges regarding the
salaries of adult probation personnel. This conclusion is in accord
with recent Texas court decisions which recognize the inherent power
of a court to compel the payment of reasonable sums of money needed to
carry out judicial responsibilities, independently of the other
branches of government. See Vondy v. Commissioners Court of Uvalde
County, 620 S.W.2d 104, 109-10 (Tex. 1981); Commissioners Court of
Lubbock County v. Martin, supra. at 110 (district court would have the
power to appoint probation personnel and set their salaries if such
action is necessary for the effective administration of the court's
business). See also Noble County Council v. State, 125 N.E.2d 709,
714 (Ind. 1955).
SUMMARY
The commissioners court must budget and pay the
salary of the juvenile probation officer as set by
the juvenile board or juvenile court, absent a
clear abuse of discretion.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Patricia Hinojosa
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison. Chairman
Jon Bible
Rick Gilpin
George Gray
Patricia Hinojosa
Jim Moellinger
P. 2181