Untitled Texas Attorney General Opinion ( 1975 )

T
OF TEXAS
AUSTIN. T-s 78711
February 19, 1975
The Honorable Otis Hill Opinion No. H- 533
Criminal District Attorney
Gregg county Re: Authority of juvenile judge
P. 0. Box 2403 over juvenile probation office.
Longview, Texas 75601
Dear Mr. Hill:
You have asked two questions relating to the authority of the Judge
of the Court of Domestic Relations in Gregg County when his court is
designated juvenile court for the county pursuant to section 5LOQ(b), Texas
Family Code.
Your first question is:
Does the judge of the juvenile court of Gregg
county, Texas, have the statutory authority
to establish the qualifications and salary of
the juvenile probation office and to appoint
members of that office?
Article 2338-13, V. T. C. S., establishes the Court of Domestic
Relations in Gregg County, and includes within the court’s jurisdiction
“all jurisdiction, powers and authority now or hereafter placed in the
District or County Courts under the juvenile and child welfare laws of
this state . . . .‘I
Section 10 of this article is of principal concern:
The Judge of the Court of Domestic Relations
shall have authority to appoint such officers and
investigators that might be necessary to the proper
p. 2403
The Honorable Otis Hill page 2 (H-533)
administration of its jurisdiction in Gregg County;
when he deems it necessary to the proper adminis-
tration of such Court, he may appoint a Court
Reporter provided such appointments are approved
by the Commissioners Court of Gregg County, by
a majority vote of said members, the salaries and
compensation of such officers and Court Reporter
to be determined by the Commissioners Court of
Gregg County by a majority vote of said members
and to be paid by the Commissioners Court out of
the General Fund of Gregg County for the services
rendered therein. (Emphasis added).
No Texas decision has defined the scope of a power “to appoint such
officers and investigators that might be necessary” to the court’s jurisdic-
tion. Only three other Courts of Domestic Relations have such authority.
See V. T. C.S. art. 2338-4, $11 (Lubbock County); V. T. C.S. art. 2338-8
g (Smith County) and V. T. C. S. art. 2338-20, 5 11 (Midland County).
In our judgment this language is broad enough to include the power
to appoint juvenile officers in Gregg County if the judge decides such’
officers are necessary to the proper administration of his court’s juvenile
jurisdiction. This decision, involving a construction of the court’s power
under an enabling statute, is initially the primary right of the j.udge. .,.,. :,
A similar statute creating the Court of Domestic Relations in Potter
County expressly grants authority to appoint juvenile officers.
The Judge of the Court of Domestic Relations
shall have authority to appoint such juvenile officers,
juvenile probation officers and investigators as might
be deemed necessary to the proper administration of
its jurisdiction. . . . V.T.C.S. art. 2338-3, $8.
Another indication that the judge of the Gregg County Court of Domestic
Relations may appoint juvenile probation officers is found by comparing the
fpur statutes which give a judge power to appoint “such officers and investiga-
tors” with statutes which restrict the judge to appointing a court reporter.
p. 2404
The Honorable Otis Hill page 3 (H-533)
Whenever the judge is given general authority, the statute is silent on
the duty of employees and officers of the probation department to assist
the Court. But where his power is limited, the statute invariably imposes
an express duty of assistance upon probation personnel. Compare V. T. C. S.
arts. 2338-4, 2338-8, 2338-13 and 2338-20 with V. T. C.S. arts. 2338-5,
2338-6, 2338-7, 2338-9, 2338-10, 2338-11, 2338-14, 2338-15, 2338-16,
2338-19.
The difference can be explained if the judge’s general authority
includes the power to appoint juvenile probation officers because such
persons would be accountable to him, and necessarily required to render
assistance when requested.
Article 5142, V. T. C. S. , which permits commissioners courts in
counties of a certain size to appoint one juvenile probation officer, is not
an exclusive grant of power, and, if it is applicable in Gregg County, it
can be given effect along with article 2338-13, $10 which is, in any event,
a subsequent expression of legislative intent.
The salaries for juvenile probation officers appointed by the Court
can either be determined “by the Commissioners Court of Gregg County
by a majority vote of said members . . .‘I as provided in $10, or in
accordance with article 5142d providing:
The Commissioners Courts of all counties in
which Juvenile Officers or Probation Officers, or
their assistants, are employed under existing laws
of this State, shall fix the salaries to be paid such
Juvenile Officers or Probation Officers and their
assistants, and provide for their expenses, without
limitation. Provided, that in Counties where there
is a Juvenile Board, said Board shall recommend
the salary to be paid to such Juvenile Officer or
Probation Officer and their assistants, which salary
shall be approved by the Commissioners Court . . . .
(Emphasis added)
p. 2405
The Honorable Otis Hill page 4 (H- 533)
Since article 5139GGG creates a juvenile board for Gregg County,
the proviso is applicable. If one or the other procedure must be controlling,
it is our opini~on that article 5142d addresses the subject of salaries for
juvenile officers more directly than does article 2338-13, $10, and
consequently, its procedure should be followed.
Your second question is whether the judge of the Court of Domestic,
Relations in Gregg County may be appointed to membership on the juvenile
board.
Article 5139E-2, V. T. C. S., is applicable to ‘Gregg County and,
provides:
In any county having a population of not less
than 75,800 and not more than 78,000 according
to the last preceding federal census, the
Commissioners Court may name the judge of the
court of domestic relations as an additional
member of the juvenile board and may pay him
for his services on the board in an amount
not to exceed the additional compensation allowed
other members of the county juvenile board.
In 1973, article 5139GGG, V. T. C.S., was adopted and requires
,,.,. that
~,. .,
the Gregg County Juvenile Board “shall be composed of the district judges
of the several judicial districts of the county and the county judge of Gregg
County. ”
You have suggested that the 1973 Act repeals article 51393-2 by
implication. This might be the case if article 5139GGG had said the
Board “shall only be composed” of certain persons, but as written it
is easily reconciled with the permissive language of article 51393-2 which
authorizes, but does not require, the appointment of the Judge of Domestic
Relations to the Juvenile Board of Gregg County.
Texas courts are reluctant to find repeals by implication and only
do so where the provisions of a later statute are clearly repugnant to an
earlier one. Garrett v. State, 279 S. W. 2d 366 (Tex. Crim. App. ,1955);
Jefferson County v. Board of County and District Road Indebtedness, 182
S. W. 2d 908 (Tex. Sup.. 1944).
p. 2406
The Honorable Otis Hill page 5 (H-533)
SUMMARY
The Judge of the Court of Domestic Relations
in Gregg County has power to appoint juvenile
probation officers when such officers are necessary
to the proper administration of the court’s juvenile
jurisdiction. Their salaries should be recommended
by the Gregg County Juvenile Board and approved by
the Commissioners Court. The statute authorizes
but does not require the Judge of the Court of
Domestic Relations to be appointed to the Gregg
County Juvenile Board by the Commissioners Court.
Very truly yours,
Qz!&
JOHN L. HILL
Attorney General of Texas
PPROVED:
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DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
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p. 2407