Untitled Texas Attorney General Opinion ( 1974 )

THEA'ITORSEY GENERAL
OFTEXAS
June 25, 1974
The Honorable Tom Bevill Opinion No. H- 334
District Attorney
Stephens County Courthouse Re: Authority of District Court
Room 206 to grant and revoke probation
Breckenridge. Texas 76024 absent appointment of “probation
officer. ”
Dear Mr. Betill:
You have requested our opinion on whether a “probation clerk”
who does not meet the mimimum qualifications for appointment as “proba-
tion officer” as provided in Section 10 of Article 42.12, V. C. C. P., may
nevertheless perform some of the duties of probation officer in the 90th
District Court of Stephena County.
You also ask whether the district court may compal probationers to
pay the statutory probation service fee, order probationers to report monthly
to the probation “clerk,” and revoke probation for violation of such conditions
of probation if the district court has not appointed a fully qualified probation
officer to assist the court.
Article 42.12. V. C. C. P., the Adult Probation and Parole Law,
~defines a “probation officer” in Section Z(d) ,as a .pers,on,
. . . duly appointed by one or more courts of record
having original criminal jurisdiction, to supervise
defendants placed on probation; or a person designated
by.such courts for such duties on a part-time basis; . , .
p. 1542
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The Honorable Tom Bevill page 2 (H-334)
Section 10 sets minimum qualifications for persons who are eligible
to be selected by appointment. The relevant language in Section 10 is:
. . . Only those persons who have successfully
completed education in an accredited college or
university and two years full time paid employment
in responsible probation or correctional work with
juveniles or adults, social welfare work, teaching
or personnel work; or persons who are licenoed
attorneys with experience in criminal law; . . .
shall be eligible for appointments as probation
officers . . . . Provided, however, that in a county,
having a population of less than 50,000, according to
the last preceding Federal census, any perron having
completed at least two years education in anaccredited
.colfege or university will be eligible for appointment.
[emphasis added]
It is our opinion that some tasks normally performed by a probation
officer may be performed by other probation personnel at the direction of
the district judge. Section 10 begins with the language:
For the-purpose of providing adequate probation
services, the district judge or district judges
.having original jurisdiction of criminal actions
in the county or counties, if applicable, 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 administrative.
supervisory, stenographic, clerical, and other
personnel as may be necessary to conduct presentence
investigations, supervise and rehabilitate probationers,
and enforce the terms and conditions of probation.
[emphasis added]
p. 1543
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I . .
s
The Honorable Tom Bevill page 3 (H- 334) .a : *’
Section 10 implies that “other personnel” may be employed to
assist the probation officer in preparing pre-sentence reports, conducting
investigations, supervising.probationers and enforcing the terms and
conditions of probation. And if other probation personnel may perform these
enumerated duties under the supervision of a probation officer appointed by
the court, it is reasonable to infer they may perform these tasks directly
under the supervision of the court whether or not a probation officer has
also been appointed.
second question is whether a court
Your may grant probation require
the payment of a statutory probation service fee, and revoke probation for
violation of probationary terms and conditions, if it has not appointed or
designated a “probation officer” to assist the court.
Although no case has directly addressed your question, several
decisions by the Texas Court of Criminal Appeals indicate that a district
court’s power to grant probation, fix or modify conditions of probation,
or revoke probation is not limited by the court’s failure to use the services
of a probation officer. Valdez v. State, 491 S.W.2d 415 (Tex. Crim. ~1973);
Marr v. State, 487 S.W.2d 93 (Tex. Crim. 1972). The cases further indicate
that a court’s power is not limited by failure of a probation officer to properly
perform his duties. Hilts v. State, 476 S.W.2d 283 (Tex. Crim. 1972).
Mullins v. State, 464 S.W.2d 669 (Tex. Crim. 1971).
Whether ~adefendant is entitled to probation, and, ii so, upon what
conditions, are matters solely for the trial ,cour.t’s discretion. Martin v.
State, 452 S.W.2d 481 (Tex. Grim. 1970).
In answer to your question it is our opinion that the 90th District
Court of Stephens County may order payment of the statutory probation
service fee (Section 6a, Art. 42.12, V. C. C. P.); order probationers to
report monthly to a probation “clerk”; and revoke probated sentences of
probationers who violate terms of their probation whether or not a probation
officer is employed in Stephens County.
p. 1544
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;, ..
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The Honorable Tom Bevill page 4 (H-334)
SUMMARY
A probation “clerk” may perform some of the
duties of a probation officer directly under the
supervisien of the court. A district court may
exercise its probationary powers under Art. 42.12,
V. C. C, P., whether or not It har employed a.
“probation officer” to aarist the court.
bdHN L. HILL
Attorney General of;Texas
APP OVED:
A
DAVID M. KENDALL, Chairman
p* 1545