Untitled Texas Attorney General Opinion ( 1970 )

December 29, 1970
Honorable Andy Shuval Opinion No. M-763
County Attorney
Deaf Smith County Courthouse Re: Questions relating to
Hereford, Texas 79045 authority of county of-
ficers over juveniles.
Dear Mr. Shuval:
Your recent letter requesting the opinion of this
office concerning the referenced matter poses the following
questions:
11
1. Can the County Commissioners hire an
individual as a deputy sheriff and charge him with
investigating and handling juveniles in the same
manner as a deputy might be charged with investi-
gating and handling hot check cases. It is under-
stood that the deputy in question would report
the findings of his investigation to the County
Attorney for determination as to whether a formal
complaint needs to be filed as provided in Article
2338-1, V.A.T.S.
"2 . In connection with the above question,
can the County Judge utilize this deputy to make
investigations for him and aid the Juvenile Court
in other matters as the Judge may request.
"3 . Can a Juvenile Judge commit a juvenile
to jail in the manner shown by the copy of the
attached commitment."
The Order of Commitment attached to your letter was entered by
the Judge of the Juvenile Court of Deaf Smith County, and it
orders the commitment of a 16-year old male child, adjudged a
delinquent, to the Deaf Smith County Jail "for a period of 90
days, subject to the Court's review."
Firstly, under the provisions of Article 3902, Vernon's
Civil Statutes, a commissioners court does not have authority to
appoint a deputy sheriff. However, the sheriff makes application
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Hon. Andy Shuval, page 2 (M-763)
to the commissioners court for appointment of such deputy, and
the commissioners court, within its discretion, authorizes the
appointment of such deputy and sets his salary within the minimums
and maximums authorized by law. The commissioners court, or any
member thereof, is prohibited from attempting to influence the
appointment of any person as a deputy and such appointment is the
exclusive function of the sheriff.
The sheriff may authorize the deputy so appointed to
investigate and handle juvenile matters and to report the find-
ings of his investigations to the County Attorney in accordance
with Article 2338-l(7), Vernon's Civil Statutes, as hereinbelow
set forth.
In our view, the legal issue presented for resolution
by the substance of your first two questions is as follows:
Does a deputy sheriff have the ex officio authority to perform
the functions of a juvenile officer?
The powers of a juvenile officer are set forth in
Article 5142, which provides, in part, as follows:
"Such (juvenile) officers shall have authority
and it shall be their duty to make investigations of
all cases referred to them as such by such (county
juvenile) 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 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."
We believe the foregoing Article evinces the intention
of the Legislature to place primary responsibility for handling
cases involving juvenile delinquents on individuals designated as
juvenile officers.
However, Article 2338-l(7), Vernon's Civil Statutes,
provides that:
"Any person may, and any peace officer shall,
give to the Judge, County Attorney, or to the Pro-
bation Officer of the county, information in his
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Hon. Andy Shuval, page 3 (M-763)
possession that a child is within the provisions of
this Act. Thereupon 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 require 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 pro-
visions of this Act, and stating: (1) the name, age
and residence of the child; the names and residences,
(2) of his parents, (3) of his legal guardian, if
there be one; (4) of the person or persons having
custody or control of the child; and (5) of the
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 petition shall
so state. The proceedings shall be styled 'In the
matter of a delinquent child."'
@mph asis added.)
A deputy sheriff is county peace officer, and is, therefore,
one of the persons and officers who may act under this Article.
With the exception of the duties imposed upon peace officers by
this Article, we are unable to find any further authorization for
the performance by a deputy sheriff of the duties of a county
juvenile officer.
We are of the opinion that the following statement
of the law is applicable to your question:
"Public officers . . . possess only such
powers as are expressly conferred on them by law
or are necessarily implied from the powers so
conferred. They cannot legally perform acts not
authorized by existing law." 47 Tex.Jur.2d 139-40,
Public Officers, Sec. 106.
In view of the foregoing, we hold that a deputy sheriff
has no ex officio authority to perform the duties of a county
juvenile officer, with the exception of those duties set forth in
Article 2338-l(7), supra. However, this opinion does not restrict
the duties or functions of any peace officer relative to any
offenses committed by juveniles.
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Hon. Andy Shuval, page 4 (M-763)
Your third question, and the copy of the commitment
submitted to us in connection therewith, involves the legality
of a juvenile court judge's committing a juvenile to a county
jail.
Article 2338-1(13)(c) provides as follows:
"If the (juvenile court) judge or jury finds
that the child is delinquent, or otherwise within
the provisions of this Act, the court may by order
duly entered proceed as follows:
"(1) place the child on probation or under
supervision in his own home or in the custody of a
relative or other fit person, upon such terms as the
court shall determine;
"(2) commit the child to a suitable public in-
stitution or agency or to a suitable private insti-
tution or agency authorized to care for children;
or place the child in a suitable family home or
parental home for an indeterminate period of time,
not extending beyond the time the child shall reach
the age of twenty-one years;
"(3) make such further disposition as the court
may deem to be for the best interest of the child,
except as herein otherwise provided." (Emphasis
added.)
Article 2335X-1(17) provides:
"No female person over the age of ten (10)
years ?L?idunder the age of eighteen (18) years, or
erson over the age of ten (10) years and
%:hf seventeen (17) years, shall be placed
or committed to any compartment of any jail or lockup
in which persons over juvenile age are incarcerated
or detained; but shall be placed in a room or ward
separate and apart from that occupied by adults . . .
The proper authorities of all counties shall provide
(a) suitable place of detention for such juveniles
separate and apart from any jail or lockup in which
adults are confined. Said detention place may be
in the same building housing adults, or in a
building separate and apart from that where adults
are confined." (Emphasis added.)
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Hon. Andy Shuval, page 5 (M-763)
Article 5143c(l2), Vernon’s Civil Statutes, directs
that:
“When any child is adjudged delinquent under
provision of Section 13 of Chapter 204 of the
General Laws of the Regular Session of the Forty-
eighth Legislature, 1943, (Sec. 13, Article 2338-
1, of Vernon’s 1948 Statutes), and the Court does not
release such child unconditionally, or place him on
probation or in a suitable public or private insti-
tution or agency other than a State Training School,
the Court shall commit him to the (State Youth De-
velopment) Council, but may suspend the execution
of the order of such commitment.”
In view of Sections 13(c) and 17 of Article 2338-l
and Article 5143c, Section 12, which must be harmonized and
considered together, we are of the opinion that it is manifest
that a juvenile court judge has no power or authority whatsoever
to order a juvenile delinquent committed to a county jail to
serve a sentence.
SUMMARY
(1) A deputy sheriff has no ex officio
authority to act as a county juvenile officer,
with the exception of the duties relating to
juveniles set forth in Article 2338-l(7),
Vernon’s Civil Statutes. However, a sheriff
may authorize one of his deputies to investigate
and handle juvenile matters and to report the
findings of his investigations to the County
Attorney.
(2) A juvenile court judge has no authority,
pursuant to Sections 13(c) and 17 of Article 2338-1,
Vernon’s Civil Statutes, to order the commitment
of a juvenile delinquent to a county jail other
than for temporary detention pending his other
disposition.
n
y General of Texas
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Hon. Andy Shuval, page 6 (M-763)
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Dan Green
Sam Jones
Gordon Cass
Scott Garrison
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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