Untitled Texas Attorney General Opinion ( 1950 )

A OWNER GENERAL
E,XAS
February 24, 1950
Hon. John H. Winter6
Executive Secretary
State Youth Development Council
Austin, Texas Opinion No. V-101 3
Re: Authority of the State Youth
Development Council in re-
spact to Treatment and Dis -
po6ition of Delinquent Chil-
dren.
Dear Sir:
You have raqueskd m epiahn m question~s invoiving the
conetruction of Hou6e Bili 705, Acts 51st Leg., R.S. 1949, ch. 538,
p. 988. This Act, codified 66 Artich 3143c, V. C. S.. creates a
State Youth &wekQ#tmant Council and dadknes it6 powers, dutiets,
and function6 in respect to juv6nif6 d6lSnquenoy. The Act. among
other things, gives to the Ceuncik aI1 rights, powers, and dutirs for
the care of delinquent children in certain State Training Schools
formerly held by the State Board of Control.
The questions pranentcd by your requkst sue, in substance,
as follows :
(1) What is the authority of the State Youth Dewlop-
ment Council in regard to determinat.ion of treatment and
disposition of delinquent children committed to the Council
by Juvenile Court6 after the effective date of Article 5143~.
V.C.S. 7
(2) What is the authority of the State Youth Develop-
ment Council in regard to determination of treatment and
disposition of delinquent children committed by Juvenile
Courts to the Gatesville, Gainesville, and Brady State
Hon. John H. Winters, Page 2 (V-1013)
Training Schools prior to the effective date of Article
5143c. v. c. S.?
Your questions arise from a reading of the Youth Develop-
ment Council Act together with certain portions of Article 2338-l)
V. C. S., (Acts 48th Leg., 1943, ch. 204, p. 313), which defines the
powers, duties, and functions of juvenile courts. Section 5 of Arti-
cle 2338-1, in part, provides:
“When jurisdiction shall have been obtained by the
court in the case of any child, such child shall continue
under the jurisdiction of the court until he becomes
twenty-one (21) years of age, unless discharged prior
thereto . . .”
Section 14 of Article 2338-l reads in part as follows:
“An order of commitment made by the court in the
case of a child shall be subject to modification or, revo-
cation frorh tim&:to time. ”
Thus Article 2336-1, V. C. S., gives to the juvenile court
continuing jurisdiction over a child adjudged delinquent and em-
powers the juvenile court to modify or revoke any order made by
it in respect to the child. There are doubtlessly many children
now in State training schools who were committed thereto when
Article 2338-l was the only statute applicable to the subject of
disbosition of delinquent children in State training schools.
However, the 51st Legislature enacted the Youth Develop-
ment Council Act, Article 5143c, V. C. S., portions of which are
quoted below:
“Sec. 12. When any child is adjudged delinquent
under provision of Section 13 of Chapter 204 of the Gen-
eral Laws of the Regular Session of the Forty-eighth
Legislature, 1943 (Sec. 13. Article 2338-l. of Vernon’s
1948 Statutes), and the Court does not release such child
unconditionally, or place him on probation or in a suito-
ble public or private institution or agency other than a
I .
Hen. John 2% Winters, Page 3 (V-1013)
State Training School, the Court shall commit him to
the Council, but msy suspend the execution of the order
of such commitment.”
“Sec. 18. When a child has been committed to the
Council, it may:
“(a) Permit him his liberty under eupervision and
upon such conditions as it beDoves conducive to accaptn-
ble behavior; or
“(b) Order his confinement under such conditions
81 it believes beet designed fmr his welfare and the in-
terests of the pubk; or
“(c) Order reconfinement or renewed release as
often a8 conditions indicate to be desirable; or
“(d) Revoke or modify any order of the Council rf-
fecting a child, except an order of final diocharge, as
often le conditions indic&e to be derirable; or
“(c) Diecharge him fropn coatrol when it is sotir-
ficd that snch discharge will best serve his welfare and
the protection of the public,”
Sectionr 1 snd 44 of Ariiek 514%~ dochre in substance
that the purpose of the Act and Yc faactioa of the Council is the co-
ordination and improvement of faciU4ee for UC prevention and re-
habilitation of juvenile delinquency,
In view of the aforementioned sections of the Youth Develop-
ment Council Act, we believe that it w&s the intention of the legisla-
ture to give, in so far as it lawfully CM, to me Youth Development
Council exclurive authority, as outlined ia Section 18 of the Act, to
determine treatment and disposition of delinquent children and that
Article 2330-l is amended by implication to the extent hereinafter
indicated.
Having concluded that the legislature intended to vest in
the Council as much authority as possible in respect to the powers
Hon. John W. Winters, Page 4 (U-1013)
and functions enumerated in Section 18 of the Youth Development
Council Act, we will consider your first question relating to the
authority of the Council over children committed to the Youth De-
velopment Council after the passage of the Youth Development
Council Act. The problem is whether t.he Legislature may lawful-
ly vest in the Council the power in respect to this group of chil-
dren to make the determinations enumerated in Section 18, includ-
ing the power to grant final discharge from State control.
It has been suggested that such a stytute violates the con-
stttutional principple of separation of powers. The validity of
ct&ut.os authorizing administrative boards to grant parole and to
transfer prisoners from one place of confinement to another has
been sustained in numerous jurisdictions despite assertions that
such statutes are repugnant to the constitutional principle of sepa-
ration of powers.
Although proceedings involving juvenile delinquents in
this State are civil rather than criminal in nature, the power to
release under supervision granted to the Council by the Act is the
same type of fuhction as the power of parole. In Pennsylvania ex
rel Banks v. Cain, 28 A. 2d 897 (Pa. Sup. 1942), the Pennsylvania
Supreme Court upheld a statute authorizing parole by the Board
of Pardons and Paroles where the prisoner was serving an inde-
terminate sentence. The Court said:
The granting of parole and the supervision
‘L
of parolees are purely administrative functions, and ac-
cordingly may be entrusted by the Legislature to non-
judicial agencies ”
1. Article II, Constitition of Texas provides: ‘“The powers of the
Government of the State of Texas shall be divided into three
distinct departments, each of which shall be confided to a
separate body of magestry, to wit:‘l!hose which are Legislative
to one; those which are Executive to another, and those which
are Judicial to another; and no person, or collection of per-
sons, being of one of these departments, shall exercise any
power properly attached to either of the others, except in
the instances herein expressly permittedI”
. ,
bikewisa, $t has b44tr held in o&r fwip&l,etinn,s that
there i$ no iJr&ngemen% ef the function$ of the juaiciary where
a St&4 confers p6mets upon ad e&iinEqsfrative body to establish
a sysitzm of parole and also 40 garnt an absalute di,scharge to a
m 143 A. L. 3%. 19%. Accord. 33attqu v. #oard of Control, 146
Tes. 160, 204 S. W+ 2d 390 (194~olding that the supe’rintendent
of a .$a& hospital for the insane has authority to dismiss a pat-
ient W&I .&as been commi~d thereto upon a charge of. lunacy
q@ &et e*cb p&+&s+. cannot #gain be csms&tfed to the asylum
u&$1 he has again bee& tried in aaot@es Puaac) proceeding and
adjudged insane and in need of r,estra’int.
Non. John Ii. Winters, Page 6 (V-1013)
discharge from State control.2
Your second question relates to the authority of the
Council in respect to children presently confined in the Gaines-
ville, Gatesville, and Brady State Training Schools as a result
of a commitment thereto before the Youth Development Council
Act.
Section 29 of the Act reads in part as follows:
“The Council may release under supervision at any
time, and may place children in its custody in their us-
ual homes or in any situation or family that it has ap-
proved I . . .I’
Custody of delinquent children presently committed to one of the
State Training Schools has been given to the Council by Section 8
of the Act. We believe that Sections 8 and 29 are sufficient legis-
lative authority for the Council to release under supervision chil-
dren committed to one of the three schools prior to the effective
date of the Act.
As heretofore observed, release under supervision or
parole is an administrative rather than a judicial function, and
statutes authorizing administrative bodies to grant parole are not
repugnant to the separation of powers principle. Neither is it an
infringement upon judicial power or nn interference with a judicial
order for the Council to release under supervision children in its
2. In connection with the grant of final and complete discharge
from State control, attention is called to Saction 17(d), provid-
ing that: “‘Failure of the Council to examine a child committed
to it, or to re-examine him within one (1) year of a previous
examination, shall not of itself entitle the ch,ild to dk&arpe
from the control of the Council, but shall entitle hin to petition
the committing Court for an order of discharge, and the Court
shall discharge him unless the Council upon due notice satis-
fies the Court of the necessity for further control,” and to
Section 33, providing: ““Every child committed t.o the Council
as delinquent, if not already discharged, shall be discharged
or referred back to the Court when he reaches his twenty-
first birthday. *’
. .
Hon. JOh4 H. Winters, Page 7 (V-1013)
custody who were committ.ed to State Training Schools prior to
the enactment of the Youth Development Council Act. This is true
because t$ie release under supervision does not interfere with the
order of commitment. Reltas,e under supervision relates to the
manner of executing the sentence and not to the duratiajn of &he.
sentence. &l this conne,ction, the court, in Pennyslvania ex rel
B+nks v. ,&a, supr8, said:
‘“Thr ~8awZefst of the power of parole be’ing but an
adminiserr&+e fun&don which does not impinge upon
the judicial power of rmrrtemring the accused in conformi-
ty with thie I*w, it folfaws that the present act may consti-
tutionally be applied to casts where scntemcts were
goosed before ,its effective ,date. The sentence is in no
wise interfortd with, especially since the act provides
that a par&e cas¬ be granted until tht expiration of
the minimum, @lMn prss+r&ed by the court. The pa-
rolee is not dlPaha:rged, but merely serves the rema,inder
of his sefitenee by having his liberty restrained in a manh-
er analog,ous to that employed in the ‘trusty’ or ‘honor’
system of prison discipline.” (Emphasis added)
Although it is not an Interference with a judkisl order
for the Council to release under supervision children committed
to a State Training School prior to the effective date of the Act,
it would, however, be an unlawful interference with a judicial
order for the Council to attempt to discharge from all State con-
trol any of the children who were committed prior to the Act. These
children were committed pursuant to Article 2338-l. V. C. S., which
expressly gave ‘TVthe juvenile court continuing jurisdiction. Conse-
quently, the judici~al orders committing these children either ex-
pressly or impliedqy were subject to madificatlon or rev,ocation at
the discretion 6f the committing courts. We do not believe that
the Legislature in enacting the Youth Development Council Act
attempted to give to the Counc,il authority to modify or revoke any
previously made order of a juvenile court and to thus infringe upon
the Court’s judicial power.
You, are therefore advtsed in answer to your second
question that the Council has authority to determine treatment and
disposition of children in its custody as a result of commitments
to State Training Schools before the Act, but this authority does
Hon. John H. Winters, Page 8 (V-1013)
not include the power to grant final discharge from State control.
It is to be noted that many sections of the Act use the
phrase “committed to the Council” in stating the powers and duties
of the Council whereas Section 29 supra, does not. We do not mean
to infer, in relying on Section 29 for the Council’s authority over
children committed prior to the Act, that the Legislature created
two distinct classes of delinquent children and that a different sys-
tem of treatment and disposition would be given each class accord-
ing to the date of the child’s commitment. On the contrary, we be-
lieve it was the intention of the Legislature that all delinquent
children committed to the State, both past and future, would be ac-
corded the same system of treatment while undergoing rehabilita-
tion in the State’s custody. Such would have to be done to comply
with the purpose of the Act as expressed in Section 1.
“The purpose of this Act is to develop our State’s
most precious resource, its children and youth, by creat-
ing a Youth Development Council, first, to co-ordinate
the State’s departments and facilities in helping all com-
munities, develop and strengthen all child service, pre-
venting delinquency and other types of social maladjust-
ment by developing in all children the spiritual, mental,
and physical resources necessary for complete citizen-
ship responsibility and participation; and, secondly, to
administer the State’s correctional facilities by provi,d-
ing a program of constructive training aimed at the re-
habilitation and successful re-establishment in society
of delinquent children” (Emphasis added)
These are our general impressions given without the bane-
fit of any specific fact situation. Doubtless there will be many sit-
uations which will arise and which will be determined Ianthe light
of the circumstances ~then existing.
SUMMARY
fhe Youth Development Council has exclusive auth-
ority to determine treatment and disposition, as outlined
in Section 18 of the Youth Development Council Act, of
delinquent. children committed to it by Juvenile Courts
after the effective date of the Act, including authority to
/ .
Hon. John 3% Winters, Page 9 (V-1013)
grant final and complete discharge from State control
(Art. 5143c, V. C. S.)
The Council has authority to determine treatment
and disposition, as specified in Seetlon 29 of the Act,
of delinquent children committed to the Catesville,
Gainesville, and Brady State Training Schools prior to
the effective date of the Act, except the authority to
cant final and cnmplete discharge from State control.
f At% 9f43c, V. C. S., and Art. 233861, V, C. 8.)
Yours trery truly,
PRICE DANIEL
APPROVED Attorney General
.
!