QBfficeof ttp !ZWmtep QBeneral
&ate of ?Itexae
DAN MORALES January 341992
ATTORNEY
GENERAI.
Honorable Bill Turner Opinion No. DM-79
Braxos County District Attorney
300 East 26th Street, Suite 310 Re: Whether a juvenile board created
Bryan Texas 77803 pursuant to chapter 152 of the Human
Resources Code has the power to hire
and discharge employees of a juvenile
probation department after it has
employed a chief juvenile probation
officer (RQ-136)
Dear Mr. Turner:
You have asked whether the Braxos County Juvenile Board (the “juvenile
board”) has the authority to hire and discharge employees of the Brazes County
Juvenile Probation Department (the “juvenile probation department”) after the
juvenile board has employed a chief juvenile probation officer. As we understand
your request, your concern is whether juvenile probation department personnel
decisions, including hiring and firing of subordinate employees, are solely within the
authority of the chief juvenile probation officer, or whether the juvenile board has
the authority to exercise control over these decisions.
The juvenile board was created under chapter 152 of the Human Resources
Code.’ Section 152.0007 of subchapter A of that chapter, which defines the duties of
the juvenile board, provides:
The juvenile board shalh
(1) establish a juvenile probation department and employ
personnel to conduct probation services, including a chief
probation officer and, if more than one officer is necessary,
‘Chapter 152 of the Human Resources Code was enacted as part of legislation recodi&iq the
juvenile board provisions. See Acts 1989,71st Lq., ch. 352,s 6, at 1430.
P. 395
Honorable Bill Turner - Page 2 (DM-79)
assistant offkers, who meet the standards set by the Texas
Juvenile Probation Commission; and
(2) operate or supervise juvenile services in the county and
make recommendations as to the need for and purchase of
services.
Hum. Res. Code 9 152.0007. Section 152.0008 provides:
(a) The chief juvenile probation officer may appoint
necessary personnel with the approval of the board.
(b) Juvenile probation officers serve at the pleasure of the
appointing authority.
Id. 9 152.0008. In addition, section 152.0271, which applies solely to the Brazes
County Juvenile Board, provides in pertinent part that “[t]he chief juvenile
probation officer may set the salaries and allowances of juvenile probation
personnel with the approval of the board.” Id. $ 152.0271(e).
You suggest that these provisions may conflict. Specifically, you contend that
whereas section 152.0007( 1) appears to vest the juvenile board with the authority to
hire juvenile probation department personnel, sections 152.0008 and 152.0271(e)
appear to vest authority over personnel matters with the chief juvenile probation
officer. You state that under this statutory scheme, “it is not clear whether the
board or chief probation officer is required to employ other members of the
department, or if that duty may vary at the juvenile board’s discretion.” We consider
the authority to hire and fire juvenile probation department personnel separately
below.
As noted above, section 152.0007(l) vests the juvenile board with the duty to
establish a juvenile probation department and employ personnel, including assistant
juvenile probation officers and other employees, but section 152.0008(a) vests the
chief juvenile probation officer with the authority to “appoint necessary personnel
with the approval of the board.” We believe that section 152.0008(a) delegates to
the chief juvenile probation officer the authority to interview and select applicants,
and to hire assistant juvenile probation officers and other employees subject to the
juvenile board’s approval. Thus, the juvenile board’s authority with respect to hiring
of personnel is limited to approving or rejecting the chief juvenile probation officer’s
p. 396
Honorable Bill Turner - Page 3 (DM-79)
hiring decisions. We believe that this interpretation of section 152.0008(a) does not
conflict with section 152.0007(l) because the term “to employ” in the latter provision
does not necessarily mean to hire, but may simply mean to provide compensation2
Subchapter A of chapter 152 is even less straightforward with respect to the
authority to terminate assistant juvenile probation officers and other employees.
The critical question in interpreting subchapter A in this respect is the meaning of
“appointing authority” in section 152.0008(b), which provides that “uluvenile
probation officers serve at the pleasure of the appointing authority.” Section
152.0008(a) suggests that the chief juvenile probation officer is the “appointing
authority” for all personnel. The predecessor statute for the Brazes County Juvenile
Board, section 8(a) of former article 5139EEEEE,s however, provided as follows:
The director of juvenile services may appoint necessary
personnel and set their salaries and allowances with the
approval of the board. The director and other juvenile probation
officers serve at the pleasure of the appointing authority.
(Emphasis added.)
We conclude from the language highlighted above that under former section 8(a),
the “appointing authority” was the juvenile board rather than the director of juvenile
services, because the legislature obviously did not intend the director to serve at his
own pleasure.
In the current statute, section 152.0008, the “chief juvenile probation officer”
is analogous to “director of juvenile services.” Thus, section S(a) of the predecessor
statute and section 152.0008(b) would be in conflict if the chief juvenile probation
officer were held to be the “appointing authority” for purposes of the latter
*We further note that the predecessor provisions to sections 152.0007 and 152.COO8, sections 7
and 8 of article 5139EEEEE, V.T.C.S., were enacted as part of the same legislation adopted in 1983.
See Acts 1983, 68th Leg., ch. 1062, at 5621; see also note 3, infra. Therefore, sections 1.52.ooO7(1) and
152.0008(a) mast be read in harmony if at all possible. Ciry of Wesf Lake Hills v. Wrsfwood Legal
Defense Fund, 598 S.W.2d 681,684 (Tex. App.--Waco 1980, no writ).
3Prior to 1989, each juvenile board was governed by a separate statute. In recodifying the
juvenile board provisions, the legislature attempted to cull from the many juvenile board provisions the
characteristics common to all and to recodify them in subchapter A of chapter 152. Acts 1989, 71st
Leg., ch. 352,s 1, at 1323. Thus, in construing subchapter A as it applies to the Brazes County Juvenile
Board, we must look to the former statute which governed that particular juvenile board.
P. 397
Honorable Bill Turner - Page 4 (DM-79)
provision. The implicit definition of “appointing authority” found in former section
S(a) must control in determining the authority of the Braxos County Juvenile Board
because chapter 152 was enacted as part of a nonsubstantive recodification of the
juvenile board provisions, Acts 1989, 71st Leg., ch. 352, 8 6. See Johnson v. City of
Fort Worth, 774 S.W.2d 653, 654-55 (Tex. 1989). Therefore, we conclude that the
juvenile board is the “appointing authority” for purposes of section 152.0008(b), and
thus has the authority to terminate the chief and assistant juvenile probation
officers.
With respect to all other employees, subchapter A is silent regarding the
delegation of the authority to terminate, as was its predecessor. As noted above, we
believe section 152.0008(b) expressly authorizes the juvenile board to terminate
juvenile probation officers. By implication, this procedure does not apply to other
employees. For this reason, and based on the requirements set forth in section
152.0008(a) for appointments, we believe that the legislature intended to delegate
the authority to terminate all other employees to the chief juvenile probation
officer, subject to the approval of the juvenile board. As with appointments, we
believe that the juvenile board’s authority with respect to terminating employees
other than juvenile probation officers is limited to approving or rejecting the chief
juvenile probation officer’s decisions.
In sum, in section 152.0008(a) the legislature has delegated to the chief
juvenile probation officer the authority to appoint personnel, both assistant juvenile
probation officers and other employees, subject to the approval of the juvenile
board. Pursuant to section 152.0008(b), the juvenile board has the authority to
terminate the chief and assistant juvenile probation officers, despite the fact that it
has hired a chief juvenile probation officer. We also conclude that subsection (b),
by implication, authorizes the chief juvenile probation officer to terminate all other
employees, subject to the approval of the juvenile board.
SUMMARY
Pursuant to sections 152.0007 and 152.0008 of the Human
Resources Code, the chief juvenile probation officer of the
Brazes County Juvenile Probation Department has the authority
to appoint juvenile probation department personnel, subject to
the approval of the Brazos County Juvenile Board. The chief
juvenile probation officer and assistant juvenile probation
officers serve at the pleasure of the juvenile board, and the
p. 398
Honorable Bill Turner - Page 5 (DM-79)
juvenile board has the authority to terminate their employment.
The chief juvenile probation offker has the authority to
terminate other juvenile probation department employees,
subject to the approval of the juvenile board.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General
p. 399