Untitled Texas Attorney General Opinion ( 1957 )

ORNEY GENERAL OFTEX``~ July 31, 1957 Honorable A. W. Walker opinion NO. w-203 County Attorney Spur Security Bank Building Rer Construction of Section Spur, Texas 10 of the Adult Probation and Parole Law of 1957, Acts 55th Le islature, Dear Sir: 1957, ch. 22 ifi, p. 466. You have presented for our determination the follow- ing question, which we quote from your letter of July 1, 1957: “If. a District Judge does not appoint a probation officer under the provisions of Sec- tion 10 of the iidult Probation and Parole Law of 1957, may he appoint any of the peace offi- cers or other persons designated in Section 31 of the Act as a probation officer in any cases arising~after the effective date of the Adult Probation and Parole Law of 19571 “To make my question clear, may I direct your attention to the provisions of Section 10 of the Act in question which provide for the qualifications which a person must possess in order to be eligible for appoints&exit as a pro- bation officer. You will note, of course, that the section in question in part provides that ‘persons who are serving in such capacit,ies at the time of the passage of this Act and who are not otherwise disqualffied by Section 31 of this tLc!t shall be eligible for appointments as pro- bation officers;’ and you will further note that Section 31 of the Act provides, in substance, that no peace officer or other person engaged in the prosecution of criminal cases (naming the va- rious officers) ‘shall act as a parole officer or be responsible for the supervision of persons on parole. * Under the provisions of the Adult Probation and Parole Law of 1947 (Article-78lb, CCP) the District Judge of our district has al- ways appointed the Sheriff of the county where the case is tried as the probation officer in cases where probation has been granted to the Honorable A. W. Walker, page 2 (WW-203) defendant and such Sheriffs are now serving as probation officers in a great many cases and will be serving in such capacity on the effective date of the Adult Probation and Parole Law of 1957. It has been suggested to me that by the terms and provisions of Sections 10 and 31 of the new Adult Proba- tion and Parole Law of 1957 our Districts Judge will be forced to discontinue the practice of appointing Sheriffs or any of the other persons designated in Section 31 as probation officers after August 22nd, 1957, the effective date of the new law, regardless of whether or not he appoints a probation of- ficer under the provisions of Section 10 of the Act. If this construction of the law is correct, as a practical matter it will force a District Judge, with the advice and con- sent of the Commissioners Court, to appoint a probation officer under the provisions of Section 10 of the Act because no private citi- zen is going to accept appointment as a pro- bation officer in any case where he is to re- ceive no compensation for his services. On the other hand, it has been suggested to me that the limitation contained in the words ‘who are not otherwise disqualified by Sec- tion 31 of this Act I applies only in the event the District Judge ,-with the advice and con- sent of the Commissioners Court, appoints a probation officer under the provisions of Sec- tion 10 of the law and that if the District Judge does not exercise the authority granted him by the law and does not appoint a paid probation officer, he may continue the same practice followed by him under the Adult Pro- bation and Parole Law of 1947 above.set out.“’ Section 10 of.~the Adult Probation and Parole Law of 1957, (Acts 55th Legislature, 1957, ch. 226, p. 466). on which your.problem is based, reads as follows: *Sec. 10. For the purpose of providing adequate probation services, the judge or judges having original jurisdiction of crimi- nal actions in the county or counties, if appli- cable, are authorized, with the advice and consent of the Commissioners Court as hereinaf- ter provided, to employ and designate the titles _ -: Honorable A. W. Walker, page 3 (w-203) and fix the salaries of probation officers, and such administrative, supervisory, stenographic, clerical, and other personnel as may be neces- sary to conduct pre-sentence investigations, su- pervise and rehabilitate probationers, and en- force the terms and conditions of probation. Only those persons who have successfully com- pleted education in an accredited college or university and two years full time paid employ- ment in responsible probation or correctional work with juveniles or adults, social welfare work, teaching or personnel work; or persons who are licensed attorneys with experience in crimi- nal law; or persons who are serving in such capa- cities at the time of the passage of this Act md who are not otherwise dis~ified bv Sectiog ?l of this Act, shall be eligible for appointments as probation officers; provided that additional experience in any of the above work categories may be substituted year for year for the required col- lege education, with a maximum substitution of two years.” This section prescribes the qualifications for pro- bation officers, and constitutes the only reference to Section 31 of the Act in the section of the Act on FIProbationtt. Sec- tion 31 prohibits certain named law enforcement officers and prosecuting attorneys from serving as parole officers. The solution to the question which you pose depends on the applicability of the clause I’. . . and who are not oth- erwise disqualified by Section 31 of the Act, . . .‘I. Does G&sAE;rision apply to all probation officers appointed under We think that the above quoted provision is to be applied to all persons qualifying as probation officers. It is our opinion that it was the intention of the Legislature that the peace officers and prosecuting attorneys listed in Section 31 should not serve in such positions and at the same time serve as a probation officer. We reach the above conclusions because the Legisla- ture has imposed the prohibition of Section 31 on persons serving as parole officers under the,,Act, and it appears to us it attempted, by use of the above quoted clause, to do so as to probation officers also. Section 6 of Article 10, Ver- non’s Civil Statutes, provides that in interpreting statutes, the ~intention of the Legislature is to be sought. To hold otherwise than we have in this instance would frustrate what ?Ionorable A. W. Walker, page 4 (Wi-203) we believe to be the intention of the Legislature, and would result in problems and injustices which could not have been desired by the Legislature. Therefore, it is our opinion that persons holding the offices enumerated in Section 31 of the Act may not at the same time hold the office of probation officer under the Adult Probation and Parole Law of 1957. (Acts 55th Leg. 195’7, ch. 226, p. 466). See Attorney General’s Opinion ``-183. You state that it has been the policy of the judge in your judicial district to appoint the sheriff of the county in which the defendant is sentenced, as probation officer, un- der the terms of the 1947 Act. As for a continuation of the same practice followed by the court under the Adult Probation and Parole Law of 1947, we would point out that Section 35 of the Act expressly repeals Article 781b, Vernon’s Code of Crimi- nal Procedure, known as the Adult Probation and Parole Law of 1947. As of August 22, 1957, the effective date of this Act, the Adult Probation and Parole Law of 1947 will be re- pealed and will no longer constitute authority for the appoint- ment of probation officers. Probation officers serving after &gust 22, 1957 will be subject only to the operation of the Adult Probation and Parole Law of 1957, and must be appointed under it. Therefore, if a district judge does not choose to appoint a probation officer under the provisions of Section 10, of the Adult Probation and Parole Law of 1957, no other authority exists for the appointment of a probation officer. gJMMARY Persons holding the offices named in Section 31 of the Adult Probation and Parole Law of 1957, may not at the same time hold the office of probation of- ficer under such act. Section 35, of the Adult Pro- bation and Parole Law of 1957, repealed the Adult Probation and Parole Law of 1947, and the latter Act will not constitute a basis for the appointment of probation officers after the effective date of the Adult Probation and Parole Law of 1957. titer that date all probation officers must be- appointed under the 1957 Act. Yours very truly, WILL WILSON JHMtpfrwb * - _ I- Honorable A. W. Walker, page 5 (WW-203) APPROVED8 OPINION COMMITTEE H. Grady Chandler, Chairman J. C. Davis, Jr. Grundy -Williams Fred Werkenthin REVIEWEDFOR THE ATTORNEYGENERAL BY: Gee. P. Blackburn