Untitled Texas Attorney General Opinion ( 2000 )

OFFICE OF THE ATTORNEY GENF.R.K. STATE OF TEXAS
JOHN CORNYN
December 15,200O
The Honorable William M. Jennings Opinion No. JC-03 14
Gregg County Criminal District Attorney
101 East Methvin Street, Suite 333 Re: Whether and the extent to which a board of
Longview, Texas 75601 district judges may be involved in the hiring of
employees of a community supervision and
corrections department (RQ-0232-JC)
Dear Mr. Jennings:
The director of a community supervision and corrections department is responsible to
“employ a sufficient number of officers and other employees” to perform the work of the
department. TEX. GOV’T CODE ANN. 5 76.004(b) (Vernon 1998). A prior opinion of this office,
Attorney General Opinion DM-208, concludes it is the department director, and not the district
judges who participate in the management of the department, who ultimately selects necessary
personnel for the department. See Tex. Att’y Gen. Op. No. DM-208 (1993) at 5. You ask us to
clarity the extent to which districtjudges may involve themselves in the hiring process of department
personnel other than the department director.’ We conclude that it is the judges, not the director,
who are ultimately responsible to appoint department personnel. We overnde Attorney General
Opinion DM-208.
You state that the judges in your county have, on two occasions, “involved themselves in the
hiring process for positions underneath the” community supervision and corrections department
director. Request Letter, note 1, at 1. You have advised the judges that they may “participate” in
the hiring process, but, in accordance with Attorney General Opinion DM-208, the ultimate hiring
authority “belongs to the department director.“* Thus, you believe the director of the department
may hire the employee of his choice for a particular position. See Dexter Letter, note 2, at 1.
Concomitantly, you believe the judges have no power to approve or disapprove the director’s hiring
decision. See id. You ask whether your understanding of the division of authority between the
judges and the department director comports with the law. See Request Letter, note 1, at 1.
‘Letter from Honorable William M. Jennings, Gregg County Criminal District Attorney, to Rebecca Payne,
Open Records Division Chief, Offke of the Attorney General (May 17, 2000) (on tile with Opinion Committee)
[hereinafter Request Letter].
‘Letter from Honorable William M. Jennings, Gregg County Criminal District Attorney, to Bill Dexter,
Personnel Director, Gregg County Courthouse (May 17,200O)(on tile with Opinion Committee) [hereinafter Dexter
Letter].
The Honorable William M. Jennings - Page 2 (JC-0314)
A community supervision and corrections department is established in each judicial district
by the districtjudge orjudges trying cases in the district. &~TEx. Gov’TCODEANN. 5 76.002(a)(l) *
(Vernon 1998). The judges shall “employ district personnel as necessary to conduct presentence
investigations, supervise and rehabilitate defendants placed on community supervision, enforce
the conditions of community supervision, and staff community corrections facilities.” Id.
5 76,002(a)(2). Additionally, “[tlhe district judges trying criminal cases and judges of statutory
county courts trying criminal cases that are served by a community supervision and corrections
department are entitled to participate in the”department’s management. Id. 5 76.002(b). The district
judges must appoint a department director, see id. 5 76.004(a), and the director “shall employ a
sufficient number of officers and other employees to perform the [department’s] professional and
clerical work,” id. 5 76.004(b).
The statute is not facially clear as to how the appointment and employment duties are to be
divided between the judges and the department director. Section 76.002 states that it is the judges
who shall employ district personnel to conduct presentence investigations; supervise and
rehabilitate defendants placed on community supervision; enforce community supervision
conditions; and staff community corrections facilities. See id. 5 76.002(a)(2). On the other hand,
section 76.004 states that it is the department director, appointed by the district judges, who “shall
employ . officers and other employees to perform the [department’s] professional and clerical
work.” Id. $ 76.004(b).
We can conceive of two possible constructions of sections 76.002 and 76.004. The district
judges may appoint the director, and the director appoints additional officers and employees. Under
this construction, the judges’ responsibility to “employ” is simply the responsibility to compensate.
In the alternative, the judges’ statutory authority to employ and to participate in the management of
the district provides them with final authority to appoint or to approve all employees and appointees.
The amount of preliminary authority delegated to the director is to be decided by the judges.
This office adopted the first construction in Attorney General Opinion DM-208, which
concludes that district judges have no power to approve the department director’s employment
selections. See Tex. Att’y Gen. Op. No. DM-208 (1993) at 5. Thus, “employ” in section 76.002 of
the Government Code, which defines the judicial power vis&vis a community supervision and
corrections department, refers to the district’s responsibility to compensate department officers and
employees, while “employ” in section 76.004, which requires the department director to “employ
a sufficient number of officers and employees” to staff the department, authorizes the department
director to hire the necessary personnel. See id. The opinion suggests in a footnote that the district
judges have authority to approve the number of employees the director may hire. See id. at 5 n.2;
see also Tex. Att’y Gen. Op. No. JM-1185 (1990) at 2 (“The judge or judges appoint a department
director, who employs other persons to do the work of the department.“).
The conclusion of Attorney General Opinion DM-208 devolves upon the director merely an
illusory power. According to Attorney General Opinion DM-208, it is the department director, and
not thejudges, who selects department employees. See TEX. GOV’TCODEANN. 9 76.004(b) (Vernon
The Honorable William M. Jennings - Page 3 (JC-0314)
1998). But although the judges have no power to approve a director’s hiring decisions, the judges
have implied power to remove the department director. See id. 5 76.004(a) (requiring district judges
to appoint department director). The judges also have the right to participate in the department’s
management, See id. 3 76.002(b) (authorizing district judges trying criminal cases and judges of
statutory county courts trying criminal cases to “participate in the management ofthe department”).
Under such a system, it is not really the director who selects officers and employees because the
director may easily be terminated for making the “wrong” choice. And the judges’ authority to
manage the department must include the authority to approve or disapprove the director’s
employment choices.
The alternative interpretation is also problematic. The statute directs the department director
to “employ” necessary personnel. Moreover, the alternative is difficult to reconcile with the
legislative history of sections 76.002 and 76.004 of the Government Code. The substance of both
sections, prior to 1989, was located in article 42.12, section 10 of the Code of Criminal Procedure.
SeeActofMay29,1989,7lstLeg.,R.S.,ch.785, §4.17,1989Tex. Gen.Laws3471,3519. Atthat
time, article 42.12, section 10(a) of the Code of Criminal Procedure required district judges to
establish a probation office and to employ district personnel. See id. Section 10(b) authorized the
judges to appoint a chief adult probation officer who, “with [the judges’] approval, shall appoint a
sufficient number of assistants and other employees to carry on the professional, clerical, and other
work of the court.” Id. In 1989 the legislature repealed article 42.12, section 10 and replaced it with
a new statute, article 42.131 of the Code of Criminal Procedure. See id. $§ 3.02,4.17, 1989 Tex.
Gen. Laws 3471, 3483-86,3519. While the 1989 enactment did not change the judges’ power to
“appoint a department director” and to “employ district personnel,” it altered the director’s authority
to employ officers and other district employees. See id. 5 3.02, art. 42.13 1, sets. 2(a), 4, 1989 Tex.
Gen. Laws 3471,3483,3485. In particular, when the 1989 enactment became effective, the law no
longer required that the director’s appointments receive the judges’ approval. See id. § 3.02, art.
42.13 1, sec. 4,1989 Tex. Gen. Laws 3471,3485 (“The department director shall employ a sufficient
number of officers and other employees to perform the professional and clerical work of the
department.“). In 1995 the legislature transferred the substance of article 42.13 1 to chapter 76 ofthe
Government Code. See Act of Apr. 25,1995,74th Leg., R.S., ch. 76,§ 7.11, 1995 Tex. Gen. Laws
458,580-84; see also id. § 7.12, 1995 Tex. Gen. Laws 458,584 (repealing article 42.131, Code of
Criminal Procedure). While the legislative history does not reveal legislators’ reasons for deleting
the requirement that the director’s employment of other personnel receive the judges’ approval, the
change must have some purpose. See TEX. GOV’T CODE ANN. 5 311.021(2) (Vernon Supp. 1998)
(interpreter of statute must presume effectiveness of legislative acts).
Although neither interpretation is perfect, we believe the interpretation adopted in Attorney
General Opinion DM-208 is unworkable because of the illusory authority it provides the director.
That opinion, for example, considers specifically whether the director of a community supervision
and corrections department may hire the nephew of one of the district judges who is “entitled to
participate” in the department’s management. Tex. Att’y Gen. Op. No. DM-208 (1993) at 1,3; see
also TEX. GOV’T CODE ANN. $76.002(b) (Vernon 1998). Based on the conclusion that the judges
lack authority to approve the director’s hiring choices, the opinion determines that the proposed
The Honorable William M. Jemrings - Page 4 (JC-0314)
hiring is not nepotistic and does not violate chapter 573 of the Government Code. See Tex. Att’y’
Gen. Op. No. DM-208 (1993) at 5; see also TEX. GOV’T CODEANN. ch. 573 (Vernon 1994 & Supp.
2000) (nepotism prohibitions). In reality, though, if the judges are unhappy with the director’s
decision not to hire (or to hire) the nephew, they could tire the director, and thereby contravene the
spirit, ifnot the letter, ofthe anti-nepotism statute. We therefore overrule Attorney General Opinion
DM-208.
We conclude instead that the judges have authority to finally approve the director’s choices.
In our opinion, the legislature in 1989 may have deleted the phrase “with [the judges’] approval”
simply because legislators viewed the explicit approval requirement redundant of the judges’
authority to employ and to participate in the department’s management. See TEX. GOV’T CODEANN.
$5 76,002(a)(2),(b); 76.004(b) (V emon 1998). Accordingly, contrary to Attorney General Opinion
DM-208, a community supervision and corrections department may not hire the close relative ofone
of the judges. Whether the judges limit their role to the approval authority or take a more extensive
role is a matter for the judges to decide.
The Honorable William M. Jennings - Page 5 (JC-0314)
SUMMARY
The district judges who are entitled to participate in the
management of a community supervision and corrections department
are authorized to finally approve all appointments made by the
department director. Attorney General Opinion DM-208 (1993) is
overruled.
ey General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee