Untitled Texas Attorney General Opinion ( 1974 )


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    THEA~TORNEYGENERAL
    OFTEXAS
    September 24, 1974
    The Honorable William H. Skelton                 Opinion No. H- 409
    Board of Pardons and Paroles
    Division of. Parole Supervision                  Re: Status of Director   of
    711 Stephen F. Austin Bldg.                          Division of Parole
    Austtp. Texas 78701                                  Supervtrion, Board of
    Pardons and Paroles,
    and iutor relationrhip
    between Director and
    Dear Dr. Skelton:                                    Board
    In your letter of ,March 7, 1974, you ask the following rpecific
    questions involving the captioned matter:
    Under the provisions of Article 42.12 (78Jd)
    C.C.P.,   is the Director of the Division
    of Parole Supervision the Executive Head
    of this agency?
    If not specifically designated by statute, can
    the Board of Pardons and Paroles designate
    this position as the Executive Head of this
    agency for all purposes?
    If the Director of the Division of Parole Super-
    vision is. or can be designated as, the Executive
    Head of this agency, what legal obligation is
    placed on the Director?
    Is the Director required to file an official
    financial statement required pursuant to
    Article 6252a,D.   A. C. S. 7
    Does the Board of Pardon0 and Paroles have any
    legal obligatton for actions taken by the Director
    of Parole Supervision as the Executive Head of
    ,tbe agency?   For instance, what ie the liabiltty
    of the Board if a suit is filed through the Equal
    Employment Opportunity Commission for action
    take.n by the Director?
    p. 1906
    .-.   .
    Tbe Honorable William   H. Skelton,   page 2 (H-409)
    In your inquiries you refer  repeatedly to “this agency”, presumably
    meaning the Division of Parole Supervision of the Board of Pardons and
    Paroles.   In our opinion the threshold question is whether thts division is
    properly characterized as an “agency” as that term is generally employed
    and understood in various statutory schemes, particularly Article 6252-9b,
    V. T. C. S. Although the matter is not free from doubt, it is our con-
    clusion that this “Division” is merely a sub-division of the Board of
    Pardons and Paroles and is not itself an “agency”.
    It is difficult to define “agency” in the abstract - experts cannot~even
    agree how many federal “agencies” exist, for example.         See Davis, Admini-
    strative Law Treatise, Sec. 1.02.      Clearly, the designation employed, be
    it commission,     bureaui department, etc., will not always be, of controlling
    legal significance.     The issue must be resolved with a common sense
    approach, considering each particular entity involved on an individual
    basis.
    A generally accepted definition from Davis, supra, Sec. 1.01, is: “An
    administrative agency is a governmental authority, other than a legislative
    body, which affects the rights of private parties through either adjudication
    or rule making.”   See also Sec. l(1) of Uniform Law Commissioners’ Model
    State Administrative  Procedure Act (1970).     Even if not engaged in formal
    rule making or adjudication an “agency” should at the very least be rela-
    tively autonomous within its sphere of delegated authority, with a governing
    body possessing policy making functions and powers.       For example, the
    twenty-seven I’major state agencies” enumerated in Sec. 2 of Article 6252-9b
    all have a policy making body at the head. Significantly, the various sub-
    divisions or “departments” of these agencies are not listed.
    The Division of Parole Supervision is created by the provisions of
    Article 42.12, Sets. 26 - 32, V. T. C. C. P. An examination of the pertinent
    provisions of this Article, quoted below, establishes that thir Division does
    not meet any of the above criteria for an administrative agency.
    Sec. 26   The Board of Pardon.8 and Paroles shall
    have genera1 responsibility for the investigation and
    supervision of all prisoners released on parole.    For
    the discharge of this responsibility,  there Is hereby
    created with the Board of Pardons and Paroles, a
    Division of Parole Supervision.    Subject to the general
    p. 1907
    The Honorable   William H. Skelton,   page 3 (H-4091
    direction of the Board of Pardon6 and Paroler, the
    Mvi6ion of Parole Supervl6ion, including its field
    staff shall be responsible for obtatning and assembling
    any facts the Board of Pardons and Paroles may deeire
    in considering parole eligibility, and for invertigating
    and supervising paroled prisoners to see that the con-
    ditions of parole are complied with, and for making
    such periodic report6 on the progrerr of parolees
    as the Board may desire.
    Sec. 28 Salaria   of all employee6 of the Divi6ion
    of Parole Supervision shall be goveraod   by Approp-
    riations Acts of tbt Legislature,    The Board of Pardon6
    and Paroles shall appoint a Director of the Division,
    andall other employees shall be selected by the
    Director, subject to such general policies and regu-
    lations as the Board may approve.
    Clearly the Director of the Division of Parole Supervision por.resrer
    no rule-making or adjudicatory powers.      The primary functions of the
    Director and his staff involve obtaining and collecting facto, iavesti-
    gating and supervising, aII subject to the direction and control of the Board
    of Pardons and Paroles.    There’is no separate body established to formulate
    policy for the Division and, in actuality, the Division and its director have
    no legal autonomy whatsoever.
    If the Division of Parole Supervision is not an agency then the director
    thereof cannot be the “executive head” of an agency and Question 1 must be
    answered in the negative.      The Board of Pardons and Paroles of cour6e
    cannot create an agency and consequently Question 2 is also answered in
    the negative.    This is not to say that the Board cannot delrignate the director
    as an “executive head” of the Division, but it is not clear what legal sig-
    nificance, if any, such deeignation might have.
    With respect to Question 3, the legal duties and obligations of the
    Director are clearly set out in Sets. 26 - 32 of Article 42.l2,    and it .is not
    at al1 clear how or why his designation as Qxecutive head”,6hould have
    had any bearing on the matter.   The duties of the Board itself, and par-
    ticularly the chairman, are established by Article 4, Sec. 11 of the Texas
    Constitution and Article 42.12, and these duties and r6SpOn6ibt~iti66      cannot
    be delegated to the Director of the Division of Parole Supervision.
    p. 1908
    .
    .
    .
    The Honorable   William   H. Skelton, page 4 (H-409)
    The answer to~Cue6tion 4 is also negative.    Preaurnably the Division
    Director would qualify as an “Executive Head of a state agency” within the
    meaning of Sec. 2(6) of Article 6252-9b if the Division of Parole Super-
    vision were to be considered a “state agency”.      Article 6252-9b(g)
    defines “State Agency” as “(A) any department, commission,       board,
    office, or other agency that: (1) is in the executive branch of state
    government: (2) has authority that is not limited to a geographical portion
    of the state; and (3) was created by the constitution or a statute of this
    state.”   (Emphasis added) This definition is of little assirtance in re-
    solving the question of whether the Division of Parole Supervision is a
    state agency.    The underlined language, “or other agency” return6 one to
    the original threshold issue - what is an "agency". In our opinion, the
    Legislature intended the Act to apply only to an autonomo\r entity exer-
    cising policy making powers within a particular area and not to a mere
    sub-division or portion of an acknowledged or recognisod agency. As
    previously discussed, the Division of Parole Supervision ha6 nom of the6e
    features.   It is noteworthy in this connection that when the Legislature
    intends a statutory scheme to be applicable to sub-divisions or portions
    of an agency it knows how to expressly manifest thi6 intent. Thus
    Article 6252-17a.    V. T. C.S., the Gpen Records Act, is made applicable
    to “government agencies and bodies” and “Governmental Body” is
    defined in part as: “the part, section, or portidn of every organiration,
    corporation, committee, institution, or agency which io supported in
    whole or in part by public funds, or which expends public funds . . . ‘I
    [Sec. 2(I)(F) of Article 6252-17a. Emphasi6 added].
    The foregoing conclusion makes it unnecessary to re6pond at length
    to Ouestion 5. The Board of Pardons and Paroles is as legally responsible
    for the conduct of the Director of the Division of Parole SupervMon as it
    is for the conduct of any other official or employee of the Board,
    SUMMARY
    The Division of Parole Supervision eetablilhed
    by the terms of Article 42.12 is merely a subdivision
    of the Board of Pardons and Paroles, is not a separate
    “&ate agency” as that term i6 ordinarily employed
    and understood in statutory provisions, and the Director
    p. 1909
    The Honorable William   H. Skelton, page 5     (H-409)
    of the Divi6ion is therefore not the executive
    head of a state agency within the meaning of
    Article 6252-9b,
    Very truly yours,
    Attorney General of Texa6
    APPROVED:
    DAVID M. KENDALL,       Chairman
    Opinion Committee
    p. 1910
    

Document Info

Docket Number: H-409

Judges: John Hill

Filed Date: 7/2/1974

Precedential Status: Precedential

Modified Date: 2/18/2017