Untitled Texas Attorney General Opinion ( 1969 )

E L%YITORNES GENERAL
Honorable Charles R. Ramaay
County Attorney, Hays County
P. 0. Box 2319
San Marcos, Texas 78666
Opinion No. M-393
Re: Whether the employment and
designation of adult proba-
tion officers is subject
to express approval of the
commissioners court, and
Dear Mr. Ramsay: related question.
You have requested the opinion of this office op the
following two questions:
“1. Is the employment and designation.
of adult probation officers subject
to the express approval of the com-
missioners court?
"2 . If the answer to question number one is
‘yes’ is the advice and consent of the
commissioners court of each county In a
multi-county district mandatory?”
The answers to your questions involve an lnterpre-
tation of Article 42.12, Section 10, Code of Criminal
Procedure, which provides, in part, that
,I. . ..the district judge or district judges having
original jurisdiction of criminal actions in
the county or counties, If applicable, are
authorized, wlth the advice and consent of the
commissioners court as hereinafter provided,
to employ and designate th titles and fix
the salaries of probation zfficers, and such
administrative, supervisory, stenographic,
clerical, and other personnel as may be
necessary to conduct presentence investigations,
supervise and rehabilitate probationers, and
enforce the terms and conditions of probation.”
(Emphasis added. )
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- .
Hon. Charles R. Ramsay, page 2 (M-393)
The language of Artlole 42.12, Section 10, pro-
vides expressly that the district judge must seek the
“advice and consent of the commissioners court as herein-
after provided.” (Emphasis added.) However, the underlined
language Is ambiguous and misleading, since no subsequent
prOVi8lOn is set out in the statute for the advice and
consent of the commissioners court. Thus, the statute
is subject to two Interpretations: (1) the judge must
obtain the advice and consent set forth in the statute; or
(2) the judge is not required to obtain consent, there
being no provision thereinafter provided to cover the
manner or conditions of a consent requirement; hence the
ambiguous language must be deemed superfluous and yield
to the clear leglslatlve intent expressed In the statute
when considered as a ,whole.
Where the language of a statute is ambiguous, con-
struction beoomes necessary. Koy v. Schneider, 221 S.W.
880 (Tex.Sup. 1920). “The fun&mental rule controlling the
&ongtruction of a statute is to ascertaln the Intention of
the Legislature expressed therein. That intention should
be ascertained from the entire act, and not from isolated
portions thereof .‘I of Mason v. West Texas UtllitieS
237 S W.2d 273 T S 1931) Th in order to
$&mine ihe corr& t$&$ion of iecti%‘lO, the
entire statute must be considered and discussed in 11&t
of the alms and purposes of the Legislature with respect
to the probation system In Texas.
The purpose of the statute is stated in Section 1 of
Article 42.12:
“zt Is the purpose of this Article to place
wholly within the State courts of appropriate
jurlsdictlon the responsibility for determln-
lng when the imposition of sentence in
certain cases shall be suseended, the con-
ditions of probation, and the supervIa=
of probationers, in consonance with th
powers assigned to the judicial brancheof
this government by the Constitution of Texas....
It is the final purpose of this Article to
remove from existing statutes the limltatfonsS
other than questions of constltutlonalfty,
that have acted as barriers to effective systems
of probations and paroles in the public interesteU
(E3nphaeis added.7
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Hon. Charles R. FWnSaY, Page 3 (M-393)
Section 10 of Article 42.12 further imposes the duty upon
the district judge to employ probation officers, designate
their titles and fix their salaries.
To effectuate the expressed purpose of the statute,
the Legislature imposed certain powers and duties on the
judges of courts having original jurisdiction of criminal
actions. The judge of the court which has jurisdiction
of the case may suspend the lmpositlon of the sentence and
may place the defendant on probation and/or Impose a
fine commensurate with the offense committed “when It shall
appear to the satisfaction of the court that the ends of
justice and the best Interests of the public as well as
the defendant will be subserved thereby..,.” (Section 3).
The jud e must determine the terms and conditions of the pro-
bation 7 Section 6). The court, further, must supervise any
person placed on probation (Section 3), a-t Is implicit
In the statute that probationers be closely supervtised
since the court is empowered to alter or modify the terms
of probation at any time during the period of probation
(Section 6), reduce or terminate probation when the
defendant has satisfactorily completed one-third of the
original probationary period or two years of probation;
whichever is less (Section 7), and issue a warrant for the
arrest of the defendant should any of the terms of
probation be violated (Section 8). Moreover, only the
court in which the defendant was tried may exercise the
powers enumerated above unless the court has transferred
jurisdiction to another court with the consent of such
court (Section 5). Thus, the judge has th f ull responsi-
bllity of seeing that the terms and condit;ons of pro-
bation are enforced.
Under certain conditions, the jury may recommend
probation in the verdict. Where such recommendation Is
made, the court must grant probation (Section 3a) and
supervise the de-ant during the subsequent period of
probation (Section 3). This provision is inconsistent
and repugnant to that provision in Section 10 which
ambiguously provides that the commissioners court’s
consent to employ probation officers is also required.
Clearly, the intent of the Legislature as expressed
In the body of the statute is primarily the same as the
purpose stated In the first part of Section 1, Artlc3.e 42.12:
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Hon. Charles R. Ramsay, Page 4 (M-393)
to Place the responslbillty of suspending the imposition
of sentences, determining conditions of probation, and
supervising probations In consonance with the powers
assigned to the judicial branch by the Constitution of
Texas.
It would be impossible, indeed, for the court to
discharge Its dutles and responsibilities under the
statute without the assistance of probation officers or
even without a sufficient number of probation officers,
At the direction of the court, these officers conduct
presentence Investigations and submit written reports
which include "the circumstances of the offense, criminal
record, social history and present condition of the
defendant" as well as a report of physical and mental
examinations of the defendant, whenever such examinations
are practicable (Section 4). In addition, they supervise
the probationers, attempt to rehabilitate them, and enforce
the terms and conditions of the probation (Section 10).
That the court was necessarily intended to have
probation officers whenever required and decreed Is
abundantly clear, for the judge can perform neither his
mandatory nor his permissive responsibilities without them.
That the Legislature Intended that the court should have a
sufficient number of probation personnel to carry out its
statutory duties is also explicit under Section 10, which
speclfically expresses the intent that (1) the caseload of
each probation officer should not substantially exceed
seventy-five probationers; (2) a person who handles
juvenile probation may not be required to serve as pro-
bation officer for adults, and vice-versa; and (3) in
districts where more than one probation officer Is required,
the chief adult probation officer, with the approval of
the court alone, "shall appoint a sufficient number of
assistants and other employees to carry on the professional,
clerical, and other work of the court.
The Legislative intent and purpose Is plain. The
only question remaining involves which of the two possible
interpretations listed above gives effect to that intent
and purpose.
Under the first alternative, the judge or judges
may appoint a probation officer only with the advice and
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. .
Hon. Charles R. Ramsay, Page 5 (M-393)
consent of the commissioners court. However, "probation
officers must be employed as district officers." Attorney
General Oplnlon No. M-336 (1969). Their jurisdiction is
co-extensive with the court or courts under whose auspices
they are appolnted; and, although the judge or judges may
assign a probation officer to work in a specific county
or counties within the court's jurlsdictlon, all expenses,
including salary, must be paid by the various counties
comprising the district in proportion to the population
of such counties. It logically follows that, under this
interpretation, whenever a court appoints an adult proba-
tion officer, the approval and consent of the commissioners
court of each and every county within the district must
be obtained.1 Since a judicial district is sometimes
comprised of as many as six counties (and a majority of
the districts are comprised of more than one county,)the
commissioners court of only one county, by merely dis-
approving an appointment or appointments of probation
officers, could effectively prevent necessary probation
services In all of the counties involved. A conflict
resulting in widespread confusion would result, leaving
the district court in a "standoff" with the commlsaionera
court and depriving the indlvldual of his legal right to
supervised probation when judicially decreed. No less
important is the right of the public to supervised pro-
bation of the criminal.
1
Another alternative based on this reasoning is
possible. Since a probation officer must be appointed as
a district officer and the clause In question refers to
the county commissioners court in the singular, the advice
and consent provlsion applies only to single-county
districts. This argument is rejei?ted, however, because
the language immediately preceeding this clause refers
to "judge or judges In the county or counties,' indicat-
ing that single-county and multi-county districts ape
Intended to be treated in a like manner.
-1949-
Hon. Charles R. Ramsay, Page 6 (M-393)
Such consequence Is contrary to both the expressed
and implied Intent of the Legislature in promulgating
this statute. It would be Ironic, Indeed, if the statute
which was supposed “to remove from existing statutes
the limitations.. . . that have acted as barriers to
effective systems of probations and paroles....“.
(Section 1) had instead erected more formidable obstacles!
In construing ambiguous language, the consequences
of any particular construction are properly taken into
conslderatlon. Thus, the court will adopt the construction
“that avoids mischievous consequences and upholds con-
stitutional and legal rights” and wlll “avoid a con-
struction that will render an act or provision arbitrary,
or discriminator $:, futile, or purposeless, oppressive,
or unreasonable. It will not adopt a construction that
would “make it impossible or Impracticable of enforcement,
so as to enable a person to defeat or nullify itat will.
Moreover, the court will avoid a construction that will
result in conflict, confusion....” 53 Tex.Jur.2d 240-243,
Statutes, Sec. 164.
For all of the above reasons, the second alternative
construction is to be preferred over the first alternative
above discussed. Under the second alternative, the
advice and consent of the commissioners court Is not re-
quired. The district judge or judges having original
jurlsdlctlon In the county or counties may employ pro-
bation personnel necessary to carry out the duties
required by statute, limited only by the specifications
in Section 10 as to qualifications, caseloads, etc. The
effect of this construction Is in accordance with the
legislative purpose and Intent providing for an effective
system of probation by enabling the judge to appoint
probation officers whenever, in his discretion, he
determines that they are needed to carry out the work of
the court.
Often ” . . ..in construing a statute It frequently
happens that a word or phrase must be added to, or eliminated
from, a particular part or section in order to carry out
the manifest intent, as disclosed by the entire enactment.
Under these circumstances ,..... repugnant, superfluous, or
useless words and expressions may be disregarded.” 53 Tex.
Jur.2d 201, 202, Statutes, Sec. 138. Therefore, the words
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. . .
Hon. Charles R. Ramsay, page 7 (M-393)
"with the advice and consent of the commissioners court"
must be deemed superfluous and disregarded; to do other-
wise would be to thwart the legislative intent expressed
in the statute as a whole.
The conclusion reached herein is in accord wit
decisions reached in numerous foreign jurisdictions. D
These decisions have generally been based on the
principle that the court has inherent and constitutional
power to employ necessary personnel with which to perform
the duties required of them, to fix a reasonable
salary for such personnel, and to require appropriation
of funds for such payment.3
2 See for example, Knox County Council V. McCormick,
217 Ind. 493 29 N.R 2d 405 (lm*Noble County Council
v. State, 234 Ind. lj2, 125 N.E.2da?09 (1955) St t
Johnson, 224 Ind. 540, 69 N.R.2d 549 (1946); &?ii++%ate,
204. 390, 184 N.E. 535 (1933); In Re Appointment of
the Clerk of the Court of Appeals, 29~7 S W 2d 764 (KY. 1957
Smith v. Miller, 384 P 2d '(jo (Colo. 1965): Schneider v.
Cunninaham,ont. li5, 101 P. 962 (1909)- Ra
'County of Saline, 171 Neb. 538, 106 N.W.2d 667776).
State v. Pf iff 163 Ohio St. 149, 126 N.E.2d 57 (1455);
In Re Janit& o?&preme Court, 35 Wlsc 410 (1874);
h, Am.J 2d 440 - 441 , Courts N 79; 21 C1J.S. 28,
Courts kYi4.
3 There are no cases in Texas which discuss precisely
this point. However, in Wichita County v. Griffin,
284 S.W.2d 253 (Tex.Civ.App. 1955, error ref. n.r.e.) the
court was allowed to set the salary of his court reporter
even though such action was contested by the commissioners
court on the nrounds that this matter resided within its
discretion. in Hidalgo County Water Improvement District
No. Two v. Cameron County Water Control and Improvement
Dist. No. Five, 250 s W 2d 941 (Tex.Civ.App. 1952 no
writ), the judge was ;pield in his appointment of's water
master, although the powers given to the water master
were more extensive than those given to the master in
chancery (Rule 171, T.R.C.P.) and there was no other
statute authorizing such appointment.
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.
Ron. Charles R. Ramaay, page 8 (M-393)
In view of the foregoing, the answer to your
first question must be In the negative. Since the
problem posed in your second question is based on an
affirmative answer to the first question, no answer
to It is required.
SUMMARY
It being the intent of Article 42.12,
Code of Criminal Procedure, to create
district-wide probation services, the
employment and designation of adult
probation officers Is not subject to
the approval of the county commissioners
court.
era1 of Texas
Prepared by Sarah E. Phillips
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Rob Lattlmore
Houghton Brownlee
James S. Swearingen
Rob Flowers
W. V. GEPPERT
Staff Legal Assistant
RAWTRCRNE PHILLIPS
Executive Assistant
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