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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, 

and iutor relationrhip 

between Director and 

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 Supervision 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 conclusion 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, Administrative 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 relatively 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 subdivisions 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 conditions 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 Appropriations 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 regulations 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, 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 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 significance, 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 particularly 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 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 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 resolving 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 exercising 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, 

APPROVED: 

Attorney General of Texa6 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1910