# T OF TEXAS AUSTIN. T-s 

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February 19, 1975 The Honorable Otis Hill Criminal District Attorney Gregg county P. 0. Box 2403 Longview, Texas 75601 Opinion No. H- 533 Re: Authority ofjuvenile judge over juvenile probation office.

Dear Mr. Hill:

You have asked two questions relating to the authority ofthe Judge ofthe Court of Domestic Relations in Gregg County when his court is designated juvenile court for the county pursuant to section 5LOQ(b), Texas Family Code.

Your first question is:

Does thejudge ofthejuvenile **court** of Gregg county, Texas, have the statutory authority to establish the qualifications and salary of thejuvenile probation office and toappoint members ofthat office? Article 2338-13, V. T. C.S., establishes the Court of Domestic Relations in Gregg County, and includes within the **court ’** **s** jurisdiction

“all jurisdiction, powers and authority now or hereafter placed in the District or County Courts under thejuvenile and child welfare laws of this state . . . .‘I

Section 10ofthis article is of principal concern:

The Judge ofthe Court of Domestic Relations shall have authority toappoint such officers and investigators that might be necessary to the proper

p. 2403The Honorable Otis Hill page 2 (H-533)

administration ofits jurisdiction in Gregg County; when he deems it necessary to the proper administration of such Court, he may appoint a Court Reporter provided such appointments are approved by the Commissioners Court of Gregg County, by amajority vote of said members, the salaries and compensation of such officers and Court Reporter to be determined by the Commissioners Court of Gregg County by a majority vote of said members and to be paid by the Commissioners Court out of the General Fund of Gregg County for the services rendered therein. (Emphasis added). No Texas decision has defined the scope ofapower “to appoint such officers and investigators that might be necessary” to the court’s jurisdiction. Only three other Courts of Domestic Relations have such authority. See V. T. C.S. art. 2338-4, $11 (Lubbock County); V. T. C.S. art. 2338-8 g (Smith County) and V. T. C.S. art. 2338-20, 511(Midland County).

Inour judgment this language is broad enough toinclude the power to appoint juvenile officers in Gregg County ifthejudge decides such’ officers are necessary to the proper administration ofhis court’s juvenile jurisdiction. This decision, involving a construction ofthe court’s power under an enabling statute, is initially the primary right ofthej.udge. .,.,.:,

A similar statute creating the Court of Domestic Relations in Potter County expressly grants authority toappoint juvenile officers. The Judge ofthe Court ofDomestic Relations shall have authority toappoint such juvenile officers, juvenile probation officers and investigators as might be deemed necessary to the proper administration of its jurisdiction. . . . V.T.C.S. art. 2338-3, $8. Another indication that thejudge ofthe Gregg County Court of Domestic Relations may appoint juvenile probation officers is found by comparing the fpur statutes which give ajudge power toappoint “such officers and investigators” with statutes which restrict thejudge toappointing acourt reporter.

p. 2404The Honorable Otis Hill page 3 (H-533)

Whenever thejudge is given general authority, the statute is silent on the duty of employees and officers ofthe probation department toassist the Court. But where his power is limited, the statute invariably imposes an express duty ofassistance upon probation personnel. Compare V. T. C.S. arts. 2338-4, 2338-8, 2338-13 and 2338-20 with V. T. C.S. arts. 2338-5, 2338-6, 2338-7, 2338-9, 2338-10, 2338-11, 2338-14, 2338-15, 2338-16, 2338-19.The difference can be explained if thejudge’s general authority includes the power to appoint juvenile probation officers because such persons would be accountable tohim, and necessarily required to render assistance when requested.

Article 5142, V. T. C.S. , which permits commissioners courts in counties ofa certain size to appoint one juvenile probation officer, is not an exclusive grant ofpower, and, if it is applicable in Gregg County, it can be given effect along with article 2338-13, $10 which is, inany event, a subsequent expression oflegislative intent.

The salaries for juvenile probation officers appointed by the Court can either be determined “by the Commissioners Court of Gregg County by amajority vote of said members . . .‘I as provided in $10, or in accordance with article 5142d providing: The Commissioners Courts ofall counties in which Juvenile Officers or Probation Officers, or their assistants, are employed under existing laws ofthis State, shall fix the salaries tobe paid such Juvenile Officers or Probation Officers and their assistants, and provide for their expenses, without limitation. Provided, that in Counties where there is aJuvenile Board, said Board shall recommend the salary to be paid to such Juvenile Officer or Probation Officer and their assistants, which salary shall be approved by the Commissioners Court . . . . (Emphasis added)

p. 2405The Honorable Otis Hill page 4 (H- 533)

Since article 5139GGG creates ajuvenile board for Gregg County, the proviso is applicable. Ifone or the other procedure must be controlling, itis our opini~on that article 5142d addresses the subject of salaries for juvenile officers more directly than does article 2338-13, $10, and consequently, its procedure should be followed.

Your second question is whether thejudge ofthe Court of Domestic, Relations in Gregg County may be appointed to membership on thejuvenile board. Article 5139E-2, V. T. C.S., is applicable to‘Gregg County and, provides: Inany county having apopulation ofnot less than 75,800 and not more than 78,000 according to the last preceding federal census, the Commissioners Court may name thejudge ofthe court ofdomestic relations as an additional member ofthe juvenile board and may pay him for his services onthe board inan amount not to exceed the additional compensation allowed other members ofthe county juvenile board. In 1973, article 5139GGG, V. T. C.S., was adopted and requires that ., ,,.,. ~,. the Gregg County Juvenile Board “shall be composed ofthe district judges ofthe several judicial districts ofthe county and the county judge of Gregg County. ”

You have suggested that the 1973 Act repeals article 51393-2 by implication. This might be the case if article 5139GGG had said the Board “shall only be composed” of certain persons, but as written it is easily reconciled with the permissive language ofarticle 51393-2 which authorizes, but does not require, the appointment ofthe Judge of Domestic Relations to the Juvenile Board of Gregg County.

Texas courts are reluctant to find repeals byimplication and only do so where the provisions ofalater statute are clearly repugnant to an earlier one. Garrett v. State, 279 S.W. 2d 366 (Tex. Crim. App. ,1955); Jefferson County v. Board of County and District Road Indebtedness, 182 S.W. 2d 908 (Tex. Sup.. 1944).

p. 2406The Honorable Otis Hill page 5 (H-533)

SUMMARY The Judge ofthe Court ofDomestic Relations in Gregg County has power to appoint juvenile probation officers when such officers are necessary to the proper administration ofthe court’s juvenile jurisdiction. Their salaries should be recommended by the Gregg County Juvenile Board and approved by the Commissioners Court. The statute authorizes but does not require the Judge of the Court of Domestic Relations to be appointed to the Gregg County Juvenile Board by the Commissioners Court. Very truly yours,

Qz!& JOHN L. HILL Attorney General of Texas PPROVED: yzlkxk4b DAVID M. KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee 

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