The Attorney General of Texas
July 8, 1982
MARK WHITE
Attorney General
Honorable Jerry Bhackelford opinion No.MW-491
Supreme Court Building Chairman
P. 0. BOY 12546
Texas Juvenile Probation Commission Re: Whether Deaf Smith County
Austin, TX. 7671% 2546
512/475-2501
309 Potter County Courthouse =Y continue to employ a
Telex 9101674-1367 Amarillo, Texas 79101 juvenile peace officer
Telecopier 5121475-0266
Dear Judge Shackelford:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709
You recently requested an interpretation of House Bill No. 1704.
2141742.6944 which became effective on September 1, 1981 and is codified as Human
Resources Code sections 75.001, et seq.
4624 Alberta Ave., Suite 160
El Paso, TX. 79005-2793
You ask:
9151533.3464
1. Does section- 75.042(f) repeal the
authority of the Deaf Smith County Juvenile Board
1220 Dallas Ave., Suite 202 to employ a juvenile peace officer under articles
Houston, TX. 770026966
7131650-0666
5139DDD and 5142, V.T.C.S.?
2. If such authority does remain in effect,
606 Broadway, Suite 312 is the Deaf Smith County Juvenile Board in
Lubbock, TX. 79401.3479 compliance with House Bill No. 1704, by combining
6061747-5236
both of the titles as equal positions, under the
same office, including the sharing of files,
4309 N. Tenth. Suite B budget, etc.? If not, do the statutes require
McAllen, TX. 76501-1665 separate and distinct offices under the juvenile
5121662.4547 board?
200 Main Plaza, Suite 400 In order to answer your questions, it is necessary to analyze the
San Antonio, TX. 76205.2797 statutes to determine what each authorized. We will also discuss the
5121225-4191 custom and practice with respect to allocating duties between juvenile
officers which counties have followed.
An Equal Opportunity/
Affirmative Action Employer Article 5142, V.T.C.S., was enacted in 1919, and originally
provided for the appointment of "probation officers." It was amended
in 1927 to apply to "juvenile officers." The duties,of these officers
were enumerated in article 5142:
Such officers shall have authority and it shall
be their duty to make investigations of all cases
referred to them as such by such Board; to be
p. 1745
Honorable Jerry Shackelford - Page 2 (MW-491)
present in court and to represent the interest of
the juvenile when the case is heard, and to
furnish to the court and such Board any
information and assistance as such Board may
require, and to take charge of any child before
and after the trial and to perform such other
services for the child as may be required by the
court or said Board, and such juvenile officers
shall be vested with all the power and authority
of police officers or sheriffs incident to their
offices. (Emphasis added).
Article 5142 has not been expressly repealed. A juvenile officer with
the powers enumerated in this provision has the authority of a peace
officer. Attorney General Opinion H-1157 (1978).
The duties of the juvenile officer along with his title indicate
that juvenile officers would have the responsibilities of both a peace
officer and of a child's advocate. See, e.g., In re S.E.B., 514
S.W.2d 948 (Tex. Civ. App. - El Paso 1974, no writ) (a juvenile
officer may make arrest without a warrant for any offense committed
within his presence or view); Attorney General Opinion O-7332 (1946)
(a juvenile officer has the legal right to carry a gun in the
discharge of official duty). Both responsibilities were to lie in one
person, as shown by the provision in article 5142 for one juvenile
officer in counties under 80,000 persons. Attorney General Opinion
o-2997 (1941).
Article 5139DDD, enacted in 1971, authorized the establishment of
a juvenile board in the county of Deaf Smith, and permitted the
appointment of a juvenile officer or officers. Section 3 of that
article gave the county board the final determination of the
qualifications for the position of juvenile officer. All the powers
and duties described in article 5142 were expressly given to Deaf
Smith juvenile officers. The legislature has not expressly repealed
this statute.
You have forwarded to us information indicating that a juvenile
officer was hired subsequent to the passage of article 5139DDD. and
that in 1979, the juvenile board divided that office into two
positions: juvenile peace officer and juvenile probation officer.
The juvenile peace officer is commissioned through the sheriff's
department. It appears, however, from our examination of articles
5139DDD and 5142, V.T.C.S., that juvenile officers in both positions
would have the powers of peace officers, even though the board
assigned them different responsibilities for administrative reasons.
p. 1746
Honorable Jerry Shackelford - Page 3 (m-491)
You also sent us excerpts from the 1978 Texas Juvenile Probation
Manual, which highlight the dichotomy which has arisen due to the use
of the title "juvenile officer." It states in pertinent part:
The usage of the term 'juvenile officer' is
misleading. It is often used in reference to a
police officer or deputy sheriff who works
primarily with cases involving juveniles. Many
Texas counties use the term to denote the officer
who performs probation services for the Juvenile
Court. The Texas statutes use the terms
'probation officer' and 'juvenile officer'
interchangeably. Juvenile 'police' officers --
derive their authority from their commissions as
peace officers. Their responsibilities and power
are exactly the same as for any peace officer, and
it is only by departmental policy that they are
assigned to juvenile cases. Juvenile 'probation'
officers -- are juvenile court workers. Their
work usually begins at the time of referral by the
police officer, although in many communities their
work overlaps that of the police officer. The
bulk of their work lies in social investigations
and social casework with the juvenile offender and
his family. Their authority stems from a series
of 'bracket laws,' the first of which was enacted
in 1919. Prior to 1919, juvenile probation
officers were provided for permissively. The
Texas Juvenile Court Act of 1907 provided that a
delinquent child could be committed to the custody
of a probation officer or any proper person.
Probation officers were required to be 'discreet
persons of good moral character,' and they were to
serve without compensation. (Footnote omitted).
The manual also states that there is little uniformity among the
provisions for juvenile boards, and that many counties have designed
programs based upon social need rather than upon legislative
authority.
In 1981, the legislature created the Texas Juvenile Probation
Commission and stated that:
The purposes of this chapter are to make probation
services available throughout the state for
juveniles, to improve the effectiveness of
probation services, to provide alternatives to the
commitment of juveniles by providing financial aid
to juvenile boards for the establishment and
p. 1747
Honorable Jerry Shackelford - Page 4 (Mw-491)
improvement of probation services, to establish
uniform probation administration standards, and to
improve communications between state and local
entities within the juvenile justice system.
(Emphasis added).
Section 75.001, Human Resources Code.
Section 75.041 provides that the commission shall establish
educational, training, and certification standards for juvenile
probation officers. Section 75.042 establishes minimum standards for
juvenile probation officers. It states in pertinent part:
Sec. 75.042. Minimum Standards
To be eligible for appointment as a probation
officer, a person who is not employed as a
juvenile probation officer on September 1. 1981,
must:
(1) be of good moral character;
(2) have acquired a ,bachelor's degree
conferred by a college or university accredited
by an accrediting organization recognized by
the Coordinating Board, Texas College and
University System;
(3) have either:
(A) one year of graduate study in
criminology, corrections, counseling, law,
social work, psychology, sociology, or other
field of instruction approved by the
commission; or
(B) one year of experience in
full-time case work, counseling, community
or group work in a social service,
community, corrections, or juvenile agency
that deals with offenders or disadvantaged
persons and that is determined by the
commission to provide the kind of experience
needed to meet this requirement; and
(4) have satisfactorily completed the
course of preservice training or instruction,
have passed the tests or examinations, and
p. 1748
Honorable Jerry Shackelford - Page 5 (Mw-491)
possess the level of certification as the
commission may prescribe.
Cd) The commission may make rules [for waiver
of graduate study or employment experience].
(e) [Requirements to be eligible for
employment supervising probation officers].
(f) A peace officer, a prosecuting attorney,
and any other person who is employed by or who
reports directly to a law enforcement or
prosecution official may not act as a probation
officer or be made responsible for supervision of
a juvenile on probation. A probation officer may
not carry a firearm in the course of his official
duties. (Emphasis added).
Articles 75.041 and 75.042 may be harmonized with article
5139DDD. which gives the Deaf Smith County Juvenile Board the right to
final determination of the qualifications of juvenile probation
officers. The board's discretion to make final determinations is
limited, however, by the standards enumerated in section 75.042 or
promulgated by the commission. The board's requirements as to
qualifications may not fall below those stated in article 72.042 or
promulgated pursuant to article 72.041. There is no implied repeal of
article 5139DDD since section 75.042 does not deal with the
establishment of juvenile boards and does not remove appointment
authority from the board. The legislature has given a more precise
standard for juvenile probation officers, however, and the new statute
should be read to harmonize with the old. State v. Jackson, 370
S.W.2d 797, 800 (Tex. Civ. App. - Houston 1963), aff'd 376 S.W.2d 341
(Tex. 1964).
Section 75.042(f) supercedes Attorney General Opinion O-7332
(1946)s which held that a juvenile probation officer may carry a
firearm. In comparing section 75.042(f) to article 5142, it is
important to note that article 5142 provided only that "such juvenile
officers shall be vested with all the power and authority of police
officers or sheriffs incident to their offices." Section 75.042(f)
prohibits the employment of peace officers, but does not revoke the
power vested in juvenile probation officers, except the authority to
carry a firearm. Thus, article 5142, V.T.C.S., is repealed to the
extent that it authorized juvenile probation officers to carry a
firearm. Section 75.042(f), in establishing uniform standards as
stated in section 75.001, clearly and unambiguously states that peace
officers and any other person who reports to a law enforcement officer
may not serve as juvenile probation officers. A "peace officer"
within section 75.042(f) refers to someone employed by or reporting to
p. 1749
.
Honorable Jerry Shackelford - Page 6 (Mw-491)
a law enforcement agency. It does not refer to persons reporting to a
juvenile board. A sheriff and his deputies are peace officers,
article 2.12 of the Code of Criminal Procedure. However, a juvenile
probation officer with the authority of a police officer or sheriff is
not a "peace officer" within section 75.042(f) because he does not
report to a law enforcement agency.
You have informed us that the Deaf Smith "juvenile peace officer"
is a peace officer who carries a commission through the Deaf Smith
County sheriff. Since section 75.042(f) prohibits the employment of a
peace officer as a juvenile probation officer, he may not serve in the
latter capacity. It is therefore unnecessary to answer your second
question.
SUMMARY
Under articles 5139DDD and 5142, V.T.C.S., as
modified by sections 72.041 and 72.042(f) of the
Human Resources Code, the juvenile probation
officers employed by Deaf Smith County have the
power and authority of police officers and
sheriffs except that they may not carry guns.
Since section 75.042(f) prohibits a peace officer
from serving as a juvenile probation officer, a
deputy sheriff may not serve in that capacity.
mg
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Patricia Hinojosa
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Maury Hexamer
Patricia Hinojosa
Jim Moellinger
p. 1750