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The Attorney General of Texas
July 27, 1978
JOHN L. HILL
Attorney General
Honorable A. R. Schwartz Opinion No. H-12 18
Chairman
Senate Jurisprudence Committee Re: Distribution and use of
State Capitol probation fees.
Austin, Texas 787ll
Dear Senator Schwartz:
You ask several questions about the distribution and use of probation
fees after September 1, 1978, when new legislation on the financing of
probation services becomes effective. Article 42.12 of the Code of Criminal
Procedure in its present form requires the county to pay the salaries of
personnel and other expenses essential to the adequate supervision of
probationers. Sec. 10 (effective until September 1, 1978). Counties have paid
these expenses in part from probation fees, which the court orders the
probationer ,to pay pursuant to section 6a(a) of article 42.12. Section 6a(b)
requires the court to distribute the fees “to the county or counties in which
the court has jurisdiction for use in administering the probation laws.”
However, Senate Bill 39, enacted by the sixty-fifth legislature, provides for
state funding for probation services. Acts 1977, 65th Leg., ch. 343, at 910. It
creates the Texas Adult Probation Commission with authority to establish
minimum standards for the operation of probation programs and to distribute
state aid to them. Code Crim. Proc. art. 42.121. It also amends section 10 of
article 42.12, effective September 1, 1978, to provide in part:
(a) . . . the district judge or district judges having
original jurisdiction of criminal actions in each judicial
district in this state shall establish a probation office
.. ..
. . . .
(h) The salaries of personnel, and other expenses
essential to the adequate supervision of probationers,
shall be paid from the funds of the judicial district.
You ask whether the courts must continue to distribute probation fees
to the counties after the amended section 10, article 42.12 becomes effective
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Honorable A. R. Schwarte - Page 2 .(H-1218)
on September 1, 1978. Article 42.12, section 6a(b), providing for distribution of the
fees, was not amended or expressly repealed by the sixty-fifth legislature.
Nevertheless, since probation fees must be used “in administering the probation
laws,” changes in the probation laws are likely to affect the use of fees. Senate
Bill 39 requires the judicial district to assume many expenses of probation formerly
paid by the county. Code Crim. Proc. art. 42.12.
In interpreting the amended section 10 of article 42.12, we may consider
legislative history. Code Construction Act, V.T.C.S. art. 5429b-2, S 3.03(3). The
subcommittee which recommended Senate Bill 39 estimated that the cost to the
state per probationer per day for the state-wide system would be $.97. Joint
Advisory Committee on Government Operations - Subcommittee on Corrections,
Report with Recommendations to the Governor of Texas and Members of the Sixty-
Fifth Texas Legislature 44 (1977). The fiscal note, fin estimating the amount of
state aid required by Senate Bill 39, assumed that $.22 of the $.97 per probationer
cost would come from monthly supervision fees. Fiscal Note ,on Senate Bill No. 39,
March 17, 1977. Thus, the fiscal note combined state aid with probation fees,
making separate reference to the costs for which the county would be responsible.
In addition, a witness before the House Criminal Jurisprudence Committee stated
that probation fees would go Into the same fund as state aid. Tape recording of
public hearing on Senate Bill 39, March 29, 1977. We believe that the legislature
intended probation fees to be distributed for the same purposes as state aid and
viewed them as funds of the judicial district.
Article 42.121, section 4.05(b) provides as follows:
The fiscal officer designated for the district shall deposit
all state-aid received under this article in a special fund of
the county treasury, to be used solely for the provision of
adult probation services and community-based correctional
programs and facilities other than jails or prisons.
We believe the probation fees should be deposited in this fund in the county
treasury. This procedure will comply with the language of section 6afbl of article
42.12. See also Attorney General Opinion M-784 (1971)~(county must deposit
probation fees in special trust fund or in general fund earmarked for probation
services). In addition, it will fulfill the legislative intent underlying Senate Bill 39
that probation fees and state aid be used together to support probation services.
The Adult Probation Commission has reached the same conclusion with respect to
the distribution of probation fees. It has promulgated a rule requiring that adult
probation fees be deposited in the special fund of the county treasury along with
state aid. Rule 608.01.00.080, 3 Texas Register 1720 (1978).
Your second and third questions concern the authority of the county to use
the probation fees, and the purposes for which they can be spent. Although the
fees and state aid funds are to be kept in the county treasury, the judicial district
p. 4876
Honorable A. R. Schwartz - Page 3 (R-1218)
is the administrative unit. See Code Crim. Proc. art. 42.12, S 10(a) (effective
September 1, 1978). Section lOwprovides that the “salaries of personnel, and other
expenses essential to the adequate supervision of probationers, shall be paid from
the funds of the judicial district.” We believe the probation fees, along with state
aid, should be spent in accordance with this provision. Section 10 of article 42.12
refers to various expenses of probation. Section 10(f) states in part:
It shall be the responsibility of the county or counties
comprising the judicial district or geographical area served
by such district probation department. to provide physical
facilities, equipment, and utilities for an effective and
professional adult probation and adult community-based
correctional service.
In our opinion, this provision requires the counties to provide, from their own funds
and not from probation fees, the physical facilities, equipment, and utilities needed
for the probation office. All other expenses are to be paid from district funds,
which include probation fees. Testimony before a legislative committee indicated
that Senate Bill 39 made the county responsible for facilities, utilities, and
equipment, while the state was to be responsible for salaries, benefits, supplies,
travel, and training. Tape of public hearing on S.B. 39, House Criminal
Jurisprudence Committee, March 29, 1977. See also Joint Advisory Committee on
Government Operations - Subcommittee on Corrections, m.
We will consider your sixth question out of order, since it concerns the
definition of the term “physical facilities, equipment, and utilities” in section 10(f).
You ask whether this term includes automobiles or automobile expenses and
mileage., Section 10(e) states that probation officers shall be furnished transporta-
tion or an allowance for use of a personal automobile on official business. We
believe the automobile an:d automobile expenses are not facilities, equipment, or
utilities which a county must provide. As already noted, legislative history
indicates that travel expenses would be the state’s responsibility. Also, the
specific mention of automobiles in section IO(e) would tend to indicate that they
are not “equipment” within section 10(f). You also ask whether telephones and
telephone bills are “physical facilities, equipment, for1 utilities,” to be provided by
the county. In our opinion, the term “utilities” includes local telephone service.
See V.T.C.S. art. 1446c, S 3(2)(a) (‘utility” in Public Utility Regulatory Act includes
entity selling telephone services); V.T.C.S. art. 6674w-4 (statute on relocation of
utility facilities covers telephone facilities). We believe the county should pay the
telephone installation costs and telephone bills for local calls.
Your fourth question asks whether the fees or state aid can be used for
juvenile probation services. Article 42.121, section 4.05(b) provides that. state aid is
to be used ‘solely for the provisi~on of adult probation services and community-
based correctional programs and facilities other than jails and prisons.” This
provision makes it clear that state aid may not be used for juvenile probation
p. 4877
. . .
Honorable A. R. Schwartz - Page 4 (R-1218)
services. Probation fees are to be used “in administering the probation laws.” In
Attorney General Opinion H-89 (1973) we stated that the primary purpose of the
fees was the administration of the Adult Probation Law. However, relying on
language in section 10 of article 42.12, which indicated some correlation between
the adult and juvenile programs, the opinion reached the following conclusion:
[lfl . . . surplus funds are on hand, we cannot say that the
statute or legislative intent prohibits use of such funds for
financing and administering juvenile probation.
The language in section 10 upon which Attorney General Opinion H-89 relied has
been deleted in the ,amended version of section 10. The quoted conclusion of
Attorney General Opinion H-89 is not applicable to the version of section 10 that
will be effective September 1, 1978. After that date, surplus probation fees may
not be used for administration of juvenile probation.
Your fifth question asks whether the fees or state aid can be used for the
salary of a probation officer who voluntarily serves both adults and juveniles.
Article 42.12, section 10(d) provides that “ftlhe same person serving as a probation
officer for juveniles may not be required to serve as a probation officer for adults
and vice versa.” If one person voluntarily serves both adults and juveniles, we
believe the state aid and fees may be used only to pay the portion of his salary
attributable to adult probation services.
SUMMARY
After September 1, 1978, when the amended version of
article 42.12, section 10 of the Code of Criminal Procedure
becomes effective, probation fees should be distributed to a
special fund in the county treasury established pursuant to
article 42.121, section 4.05(b) of the Code of Criminal
Procedure. The probation fees, along with state aid, shall be
used to pay salaries and other expenses of probation,
including automobile expenses. Counties must provide
physical. facilities, equipment, and utilities, including tele-
phone service, for probation offices, and may not use
probation fees to pay for these expenses. Neither state aid
distributed under article 42.121, Code of Criminal Procedure,
nor probation fees may be used to support juvenile probation
services. If one probation officer voluntarily serves both
juvenile and adult probationers, state aid and probation fees
may be used to pay only that portion of his salary’
attributable to adult probation services.
p. 4878
Honorable A. R. Schwartz - Page 5 YR-1218)
Very truly yours,
Opinion Committee
jsn
p. 4879