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## THEA~TORNEYGENERAL OFTEXAS

September 24, 1974

The Honorable William H. Skelton Board of Pardons and Paroles Division of.Parole Supervision 711 Stephen F. Austin Bldg. Austtp. Texas 78701

Dear Dr. Skelton: Opinion No. H- 409 Re: Status of Director of Division of Parole Supervtrion, Board of Pardons and Paroles, andiutorrelationrhip between Director and Board Inyour 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? Ifnot specifically designated by statute, can the Board of Pardons and Paroles designate this position as the Executive Head ofthis agency for all purposes? Ifthe Director of the Division of Parole Supervision is. or can be designated 

### as,the Executive Head ofthis agency, whatlegal obligation is placed onthe Director? Is the Director required to file an official financial statement required pursuant to Article 6252a,D. A. C.S. 7 Does the Board ofPardon0 and Paroles have any legal obligatton for actions taken by the Director of Parole Supervision as the Executive Head of ,tbeagency? For instance, what ie the liabiltty ofthe Board if a suit is filed through the Equal Employment Opportunity Commission for action take.nby 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 andunderstood in various statutory schemes, particularly Article 6252-9b, V. T.C. S. Although the matter is notfree from doubt, it is our conclusion that this “Division” is merely a sub-division of the Board of Pardons and Paroles and is notitself an “agency”

. Itis difficult to define “agency” in the abstract - experts cannot~ even agree how many federal “agencies” exist, for example. See Davis, Administrative Law Treatise, Sec. 1.02. Clearly, the designation employed, be it commission, bureaui department, etc., will notalways be,of controlling legal significance. The issue must be resolved with a common sense approach, considering each particular entity involved onan 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 ofprivate 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 relatively autonomous within its sphere of delegated authority, with a governing bodypossessing policy making functions and powers. For example, the twenty-seven I’major state agencies” enumerated in Sec. 2 ofArticle 6252-9b all have a policy making body at thehead. Significantly, the various subdivisions or “departments” of these agencies are notlisted. 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 notmeet any ofthe above criteria for anadministrative agency.

Sec. 26 The Board of Pardon.8and Paroles shall have genera1 responsibility for the investigation and supervision of all prisoners released onparole. For the discharge of this responsibility, there Is hereby created with the Board ofPardons and Paroles, a Division of Parole Supervision. Subject to the general p. 1907The Honorable William H. Skelton, page 3 (H-4091

direction ofthe Board of Pardon6 and Paroler, the Mvi6ion ofParole Supervl6ion, including its field staff shall be responsible for obtatning andassembling 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 conditions ofparole are complied with, andfor making such periodic report6 on the progrerr of parolees as the Board may desire. Sec. 28 Salaria of all employee6 ofthe Divi6ion of Parole Supervision shall be goveraod byAppropriations Acts of tbt Legislature, The Board of Pardon6 and Paroles shall appoint a Director ofthe Division, andall other employees shall be selected by the Director, subject to such general policies and regulations as the Board may approve. Clearly theDirector of the Division of Parole Supervision por.resrer no rule-making or adjudicatory powers. The primary functions of the Director andhis staff involve obtaining and collecting facto, iavestigating 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 andits director have nolegal autonomy whatsoever. Ifthe Division of Parole Supervision is not

### anagency then the director thereof cannotbe the “executive head” of an agency and Question 1must 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 notto say that the Board cannot delrignate the director as an “executive head” of the Division, but it is not clear what legal significance, if any, such deeignation might have. With respect toQuestion 3, the legal duties and obligations of the Director are clearly set out in Sets. 26 - 32 ofArticle 42.l2, and it.isnot at al1 clear how or why his designation as Qxecutive head”,6hould have had any bearing onthe **matter.** The duties ofthe Board itself, and particularly the chairman, are established by Article 4, Sec. 11 of the Texas Constitution andArticle 42.12, andthese duties and **r6SpOn6ibt~iti66** cannot be delegated to the Director ofthe Division of Parole Supervision. p. 1908The Honorable William H. Skelton, page 4 (H-409)

The answer to~Cue6tion 4 is also negative. Preaurnably the Division Director would qualify 

### asan “Executive Head of a state agency” within the meaning of Sec. 2(6) ofArticle 6252-9b if the Division ofParole Supervision 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 notlimited 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 resolving the question ofwhether 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 exercising policy making powers within a particular area and notto a mere sub-division or portion of an acknowledged or recognisod agency. **As** previously discussed, the Division ofParole Supervision ha6 nomofthe6e **features.** Itis noteworthy in this connection thatwhen the Legislature intends a statutory scheme to be applicable to sub-divisions or portions ofan agency it knows howto expressly manifest thi6 intent. Thus Article 6252-17a. V. T. C.S., the GpenRecords **Act,** is made applicable to “government agencies andbodies” 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) ofArticle 6252-17a. Emphasi6 added]. The foregoing conclusion makes it unnecessary to re6pond **at** length to Ouestion 5. The Board **of** Pardons andParoles 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 ofArticle 42.12 is merely a subdivision of the Board of Pardons and Paroles, is nota separate “&ate agency” as that term i6 ordinarily employed andunderstood in statutory provisions, and the Director

p. 1909The 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,

APPROVED: Attorney General of Texa6

DAVID M. KENDALL, Chairman Opinion Committee

p. 1910