Untitled Texas Attorney General Opinion

, . TEE AmORNEY GENERAL OF TEXAS April 30, 1952 Hon. Austin F. Anderson Opinion No. v-1446 Criminal District Attorney Bexar County Re: Which county agency San Antonio, Texas is responsible for making investigations and reports in depend- ent or neglected Dear Mr. Anderson: childrents cases, Your request for an opinion presents the following question: "What governmental agency is re- sponsible for investigating Dependent or Neglected Children's cases?" Previously, the Children's Service Bureau, a charitable organization, made investigations in dependent and neglected children's cases before the 45th District Co,urt, which is the Juvenile Court of Bexar Co,unty. Due to a lack of funds, this prac- tice has been discontinued, giving rise to the q'ues- tion of what governmental agency is responsible for making investigations of this kind. Article 2338-1, V.C.S., establishes a juve- nile co'urt In each co,unty of the State and provides for the designation of one of the district co,urts as the juvenile court in counties having two or more district co,urts. The juvenile court is given exclu- sive original jurisdiction of proceedings governing delinquent children. Additionally, in counties hav- ing two or more district courts all cases of depend- ency and neglect must be filed in the district court which has been designated as the juvenile court, but these cases may later be transferred to another dis- trict court. Art. 2338-1, Sec. 4. Section 7 of Article 2338-l provides: "Any person may, and any Pease officer shall, give to the Judge, County Attorney, or to the Probation Officer of the county, Hon. A,ustin F. Anserson, page 2 (v-1446) information in his possession that a child is within the provisions of this Act. There- upon the Judge, the County Attorney or the Probation Officer shall make or have made, preliminary inquiry to determine whether the interests of the public or of the child req,uire that further action be taken. If either the Judge or the County Attorney shall determine that formal jurisdiction should be acquired, the County Attorney shall prepare and file in the court, or any attorney may prepare and file in the court, a petition alleging briefly the facts which bring said child within the provisions of this Act, and stating: (1) the name, age and residence of the child; the names and residences, (2) 9; ;;ErEa;;n;;i (3) of his legal g,uardian, ; (4) of the person or persons having custody or control of the child; and (5) of tne nearest known relative, if no parent or guardian can be found. If any of the facts herein required are not known by the petitioner, the peti- tion shall so state. The proceedings shall be styled 'In the matter of a delinquent childs." We agree with yo'ur conclusion that the d,u- ties required of the county attorney by Section 7 of Article 2338-l relate only to delinquent children and that this statute does not impose any duties upon the county attorney in respect to dependent and neglected children. This construction of the statute is sub- stantiated by Section 24-A of Article 2338-1, which reads: "This Act shall in no wise alter or affect existing laws with reference to de- pendent or neglected children as that term is defined by Article 2330, Revised Civil Statutes, 1925, and the District Court only shall have original jurisdiction in all proceedings wherein it is sought to have a child adj,udged to be a dependent or neglected child, and its findings in such cases shall be entered in a book kept for that Sjurpose to be known as 'Juvenile Rec- ord!. Hon. Austin F. Anderson, page 3 (v-1446) It is necessary, therefore, to look to other statutes dealing with dependent and neglected children to determine your question. Jurisdiction~over dependent and neglected children is vested in the district court. Arts. 2330-2337, V.C.S. Article 2331 reads: "Any person who is 'a resident of the county, having knowledge .of a child in his county who appears to be a 'dependent' or 'neglected' child may file with the district clerk of his county a written petition, set- ting forth the facts constituting the child 'dependent' or 'neglected;' which petition shall be verified by the affidavit of the petitioner. It shall be sufficient, if the affidavit shall be upon information and belief. Such petition shall set forth the name of the parent or parents of such child, if known, and their residence; and if such child has no parent living, then the name and residence of the guardian of such child, if it has one." Article 2333 provides: "Upon such hearing of such case the child shall be brought before said court; whereupon, the court shall Investigate the facts, and ascertain whether the child is a 'dependent child,' its residence, and, as far as possible, the whereabo,uts of Its parents or near adult relatives, when and how long the child had been maintained, in whole or in part, by private or public char- ity, the occupation of the parents, if liv- ing, whether they,are supported by the public or have abandoned the child, and to ascertain, as faras possible, if the child is fo,und dependent, the cause there- of. The court may compel the attendance of witnesses on such examination; and the clerk shall issue all process and the sher- iff and other officers of the court shall serve the same as in other cases. The county attorney, when requested by the court, shall appear In any such examina- tion in behalf of the petition. It shall . Hon. Austin F. Anderson, page 4 (v-1446) be the duty of the county attorney of such county, upon the request of then court or any petitioner, to file a petition and to conduct any necessary proceedings in any case within the provisions of this title." The co~unty juvenile board has general super- vision of a nonjudicial nature over ,dependent and neg- lected children, and has the power to 'direct one of the probation officers of said Bo~ard to file complaint against such child in some court of such county having jurisdiction to hear and determine such complaint." Art. 5140, V.C.S. This article also confers upon the board or itsmembers the authority to "be present at such hearing, either in person or by one or more of its probation officers, and make such inquiry concern- ing such child as may be proper under the established rules of procedure In such court." Article 5142 authorizes the appointment of a juvenile officer,and assistant juvenile officers In certain counties of the State. In counties having a population of 150,000 or more which contain a city of 100,000, in addition to the juvenile officer there may be appointed assistant juvenile officers not to exceed one assistant to each 25,000 population. The duties of juvenile officers are defined as follows: "Such officers shall have a,uthority and it shall be their d,uty to make investigations of all cases referred to them as such by such Board; to be present in court and to repre- sent the interest of the juvenile when the case is heard, and to furnish to the court and s~uch Board any information and assist- ance 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 of- ficers shall be vested with all the power and authority of police officers or sheriffs incident to their offices. "The clerk of the court shall when practicable, notify such j,uvenile officer when any juvenile is to be brought before the court. It shall be the d,uty of such juvenile officer to make investigation of Hon. Austin F. Anderson, page 5 (v-1446) any such case, to be present in court to represent the,interest of the juvenile when the case is tried; to furnish to such court such information and assistance as the court may require and to take charge of~any juve- nile before and after the trial as the court may direct. . 0 .' Section 1 of Article 5142a requires the ap- pointment of a chief probation officer by the county juvenile board in counties having a population of more than 350,000 and authorizes the selection of assistant probation officers in these counties. As first enact- ed in 1931, Article 5142a referred to these officers as juvenile officers, and this desi nation continued ,until the statute was amended in 19f 9. We have,been unable to find any authorities relative to the question involved. While your factual situation is not free from doubt we are impelled, by reason of the language contained in the above statutes, to the conclusion that it is not the duty of the of- fice of Criminal District Attorney to investigate de- pendent and neglected children's cases. It appears from the above statutes that the County Juvenile Board of Bexar County is required to appoint a chief probation officer, who may be furnished with assistants to help carry out his duties. Article 5140 places certain powers and duties upon this of- ficer in cases of dependent and neglected children, upon direction of the juvenile board. The language of Article 5140 authorizing 'such inquiry . 0 0 as may be proper under the established rules of the court' is not entirely clear. However, when taken with the other statutes dealing with the j,uvenile board's supervisory powers, itis'our opinion that the inquiry is not limited to inquiry at the hearing before the court, b,utwas intended to include all proper investigations and inquiries into matters affecting the welfare of the child. Article 5142 makes further provision for the d,uties of "j,uvenile officers" with respect to dependent and neglected children. This statute au- thorizes, but does not require, the appointment of a juvenile officer in Bexar County. We have not been informed whether Bexar County maintains both a "probation officer" and a "j,uvenile officer," and Hon. Austin F. Anderson, page-6 (v-1446) we are not here expressing an opinion as to whether it would be proper for the co,unty to maintain both officers. However, while the terms "probation of- ficer' and "juvenile officer" are not fully inter- changeable In these statutes, we are of the opinion that the duties imposed upon' a juvenile officerunder Article 5142 may also be performed by'the probation officer appointed by the county juvenile board under Article 5142a. It wo,uld follow that Article 5142, as well as Article 5140, places investigative du- ties in these cases upon the'probation~ offiber of the county. A consideration of these statutes reflects an intent onthe part of the Legislature to impose these investigative duties upon the juvenile author- ities, under the supervision of the county juvenile board. Consequently, we are of the opinion that in- vestigation of cases of dependentand neglected chil- dren In Bexar County should be conducted by the juvenile authorities rather than by the Criminal District Attorney. True, Article 2333 requires the filing of a petition by your office upon the request of the court or any petitioner; and also imposes the duty to appear in the examin&tion before the court and to conduct any necessary proceedings when re- quested to do so.' But we do not belleve this language contemplates the making of Investigations such as you are inquiring about. We think these provisions contemplate only 'that the county'attorney' (or ciminal district attorney) 'shall be required to do those things necessary to an orderly conduct of the pro- ceedings at the hearing before the court. Based upon the foregoing, we agree with you that the duty of 'conducting investigationsfor the juvenile court of Bexar County in dependent and neglect- ed cases is that of 'the juvenile officers and not the office of Criminal District Attorney. -. . Hon. Austin F. Anderson, page 7 (v-1446) SUMMARY The duty of conducting investigations in dependent or neglected children's cases In Bexar County is that of the juvenile of- ficers of the county and not the office of Criminal District Attorney. Yours very truly, APPROVED: PRICE DANIEL Attorney General J. C. Davis, Jr. County Affairs Division Mary K. Wall BY Reviewing Assistant Burnell Waldrep Assistant Charles D. Mathews First Asslstant BW:mh