# A OWNER GENERAL E,XAS

February 24, 1950

Hon. John H. Winter6 Executive Secretary State Youth Development Council Austin, Texas Opinion No. V-101 3
Re: Authority of the State Youth Development Council in respact to Treatment and Dis- 

### po6ition of Delinquent Children.
Dear Sir:
You have raqueskd m epiahn m question~s invoiving the conetruction of Hou6e Bili 705, Acts 51st Leg., R.S. 1949, ch. 538, p. 

### 988. This Act, codified 66

### Artich 3143c, 

### V. C. S.. creates a State Youth 

### &wekQ#tmantCouncil **and**

### dadknesit6 powers, dutiets, and function6 in respect tojuv6nif6 d6lSnquenoy. The **Act.** among other things, gives to the Ceuncik aI1rights, powers, and dutirs for the care of delinquent children in certain State Training Schools formerly held by the State Board of Control.

The questions pranentcd by your requkst sue, in substance, as follows :

(1) What is the authority of the State Youth Dewlopment Council in regard to determinat.ion of treatment and disposition of delinquent children committed to the Council by Juvenile Court6 after the effective date ofArticle 5143~. V.C.S. 7 (2) What is the authority of the State Youth Development Council in regard to determination of

### treatment and disposition of delinquent children committed by Juvenile Courts to the Gatesville, Gainesville, and Brady StateHon. John H. Winters, Page 2 (V-1013)

Training Schools prior to the effective date of Article 5143c. v. c. S.?
Your questions arise from a reading of the Youth Development Council Act together with certain portions of Article 2338-l) V. C. S., (Acts 48th Leg., 1943, ch. 204, p. 313), which defines the powers, duties, and functions ofjuvenile courts. Section 5of Article 2338-1, in part, provides:

“When jurisdiction shall have been obtained by the court in the case of any child, such child shall continue under thejurisdiction of the court until he becomes twenty-one (21) years of age, unless discharged prior thereto

. . .”
Section 14 ofArticle 2338-l reads inpart as follows:
“An order of commitment made 

### by the court in the case of a child shall be subject to modification **or,**revocation 

### frorh tim&:to time. ”
Thus Article 2336-1, V. C. S., gives to thejuvenile court continuing jurisdiction over a child adjudged delinquent and empowers thejuvenile court to modify or 

### revoke anyorder made by it in respect to the child. There are doubtlessly many children now in State training schools who were committed thereto when Article 2338-l was the only statute applicable to the subject of disbosition of delinquent children in State training schools.

However, the 51st Legislature enacted the Youth Development Council Act, Article 5143c, V. C. S., portions of which are quoted below:

“Sec. 12. When any child is adjudged delinquent under provision of Section 13 of Chapter 204 ofthe General Laws of the Regular Session of the Forty-eighth Legislature, 1943 (Sec. 13. Article 2338-l. of Vernon’s 1948 Statutes), and the Court does not release such child unconditionally, or place him 

### onprobation or in a suitoble 

### public or private institution or agency other than aI

.



### Hen. John2%Winters, Page 3(V-1013)

StateTraining School, theCourt shall commit him to theCouncil, butmsy suspend theexecution oftheorder ofsuch commitment.” “Sec. 18. When achild has been committed tothe Council, itmay: “(a) Permit him his liberty under eupervision and uponsuch conditions as itbeDoves conducive toaccaptnble behavior; or “(b) Order his confinement under such conditions 81itbelieves **beet designed**  **fmr**

### his welfare andtheinterests ofthepubk; or “(c) Order reconfinement or renewed release as oftena8conditions indicate tobe desirable; or “(d) Revoke or modify anyorder oftheCouncil rffecting achild, except anorder offinal diocharge, as often l

### econditions indic&e tobe derirable; or “(c) Diecharge him fropncoatrol whenitis sotirficd thatsnchdischarge will best serve his welfare and theprotection ofthepublic,”
Sectionr 1snd44ofAriiek 514%~dochre insubstance thatthepurpose oftheAct 

## andYc faactioa oftheCouncil is thecoordination andimprovement offaciU4ee for UC prevention andrehabilitation ofjuvenile delinquency,

Inview oftheaforementioned sections oftheYouth Development Council Act, we believe thatitw&stheintentionofthelegislature togive, insofar as itlawfully CM, tome Youth Development Council exclurive authority, as outlined iaSection 18oftheAct, to determine treatment anddisposition ofdelinquent children andthat Article 2330-l is amended by implication totheextenthereinafter indicated.**Having** 

### concluded thatthelegislature intendedtovest in theCouncil as much authority as possible inrespect tothepowersHon. John W. Winters, Page 4 (U-1013)

and functions enumerated in Section 18 of the Youth Development Council Act, we will consider your first question relating to the authority ofthe Council over children committed to the Youth Development Council after the passage of the Youth Development Council Act. The problem is whether t.heLegislature may lawfully vest in the Council the power in respect to this group of children to make the determinations enumerated in Section 18, including the power to grant final discharge from State control.

It has been suggested that such a stytute violates the constttutional principple of separation of powers. The validity of **ct&ut.os** authorizing administrative boards to grant parole and to transfer prisoners from **one** place of confinement to another has been sustained in numerous jurisdictions despite assertions that such statutes are repugnant to the constitutional principle of separation of powers.

Although proceedings involving juvenile delinquents in this State are civil rather than criminal in nature, the power to release under supervision granted to the Council by the Act is the same type of fuhction as the power of parole. InPennsylvania ex rel Banks v. Cain, 28 Atl. 2d 897 (Pa. Sup. 1942), the Pennsylvania Supreme Court upheld a statute authorizing parole by the Board of Pardons and Paroles where the prisoner was serving an indeterminate sentence. The Court said:

‘L The granting ofparole and the supervision of parolees are purely administrative functions, and accordingly may be entrusted by the Legislature to nonjudicial agencies ”



### 1. Article II, Constitition 

### of Texas provides: ‘“The powers ofthe Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magestry, to wit:‘l!hose which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either ofthe others, except in the instances herein expressly permittedI”. ,

bikewisa, $thas **b44tr** 

### held in 

### o&r fwip&l,etinn,s that there i$ no iJr&ngemen% ef the function$ of thejuaiciary where a St&4 confers p6mets upon ad e&iinEqsfrative body to establish a sysitzm of parole and also 40garnt an absalute di,scharge to a

m 143 A. L. 3%.19%. Accord. 33attqu v. #oard of Control, 146 Tes. 160, 204 S. W+ 2d 390 (194~olding that the supe’rintendent of a .$a& hospital for the insane has authority to dismiss apatient W&I.&asbeen commi~d thereto upon a charge of.lunacy q@ &et e*cb p&+&s+.cannot #gain be csms&tfed to the asylum u&$1 he has 

### again bee& tried in aaot@es Puaac) proceeding and adjudged insane and in need of r,estra’int.Non. John Ii. Winters, Page 6 (V-1013)


### discharge from State control.2

Your second question relates to 

### theauthority of

### the Council in respect to children presently confined in the Gainesville, Gatesville, and Brady State Training Schools as a result 

### of a commitment thereto before the Youth Development Council **Act.**
Section 29 of the Act reads inpart as follows:

“The Council may release 

### under supervision at any time, 

### andmay place children in its 

### custody in their usual homes or in any situation or family that it has ap

### proved I

. ..I’ Custody of delinquent children presently committed to one ofthe State Training Schools has been given to the Council by Section 8 of the Act. We believe that Sections 8 and 29 are sufficient legislative authority for the Council to release under supervision children committed to one of the three schools prior to the effective date of the Act.

As heretofore observed, release under supervision or parole is an administrative rather than 

### ajudicial function, and statutes authorizing administrative bodies to grant parole are not repugnant to the separation of powers principle. Neither is it an infringement upon judicial 

### power or nninterference with ajudicial order for the Council to release under supervision children in its

2. In connection with the grant of final and complete discharge from State control, attention is called to Saction 17(d), providing that: “‘Failure of the Council to examine a child committed to it, or to 

### re-examine him within one (1) year of aprevious examination, shall not of itself entitle the 

### ch,ildtodk&arpe from the control of the Council, but shall entitle hin to petition the committing Court for an order of discharge, and the Court shall discharge him unless the Council upon 

### due notice satisfies the Court of the necessity for further control,” and to Section 33, providing: ““Every child committed t.othe Council as delinquent, ifnot already discharged, shall be discharged or referred back to the Court when he reaches his twentyfirst birthday. *’. .

Hon. JOh4H. Winters, Page 7 (V-1013)
custody who were committ.ed to State Training Schools prior to the enactment of the Youth Development Council Act. This is true because 

### t$ierelease under supervision does not interfere with the order of commitment. Reltas,e under supervision relates to the manner of executing the sentence and not to the duratiajn of&he. sentence. <his conne,ction, the court, in Pennyslvania ex rel B+nks v. ,&a, supr8, said:

‘“Thr 

### ~8awZefstof the power of parole be’ing but an adminiserr&+e fun&don which does not impinge upon the judicial power of rmrrtemringthe accused in conformity with thie

### I*w, it folfaws that the present act may constitutionally be applied to 

### casts where 

### scntemcts were goosedbefore ,its effective ,date. The sentence is in no wise interfortd with, especially since the act provides that a

### par&e cas¬be granted until tht expiration of the minimum, @lMn prss+r&ed by the court. The parolee is not dlPaha:rged, but merely serves the rema,inder 

### of his sefitenee by having his liberty restrained in a manher analog,ous to that employed in the ‘trusty’ or ‘honor’ system of prison discipline.” (Emphasis added) Although it is not an Interference with ajudkisl order for the Council to release under supervision children committed to 

### a State Training School prior to the effective date of the Act, itwould, however, be an unlawful interference with ajudicial order for the Council to attempt to discharge from all State control any ofthe children who were committed prior to the Act. These children were committed pursuant to Article 2338-l. V. C. S., which expressly gave ‘TV thejuvenile court continuing jurisdiction. Consequently, thejudici~al orders committing these children either expressly or impliedqy 

### were subject to madificatlon or 

### rev,ocation at the discretion 

## 6fthe committing courts. We do not believe that the Legislature in enacting the Youth Development Council 

### Act attempted to give to 

### theCounc,il authority to modify or revoke any previously made order of ajuvenile court and to thus infringe upon the Court’s judicial power.

You, are therefore advtsed in answer to your second question that the Council has authority to determine treatment and disposition of children in its custody as a result of commitments to State Training Schools before the Act, but this authority does

### Hon. John H. Winters, Page 8 (V-1013)

not include the power to grant final discharge from State control.

It is to be noted that many sections of the Act use the phrase “committed to the Council” in stating the powers and duties of the Council whereas Section 29 supra, does not. We do not mean to infer, in relying on Section 29 for the Council’s authority over children committed prior to the Act, that the Legislature created two distinct classes of delinquent children and that a different system of treatment and disposition would be given each class according to the date of the child’s commitment. On the contrary, we believe itwas the intention of the Legislature that all delinquent 

### children committed to the State, both past and future, would be accorded the same system of treatment while undergoing rehabilitation in the State’s custody. Such would have to be done to comply with the purpose of the Act as expressed in Section 1.

“The purpose of this 

### Act is to develop our State’s most precious resource, its children and youth, by creating a Youth Development Council, first, to co-ordinate the State’s departments and facilities in helping all communities, develop and strengthen all child service, preventing delinquency and other types of social maladjustment by developing in all children the spiritual, mental, and physical resources necessary for complete citizenship responsibility and participation; and, secondly, to administer the State’s correctional facilities by provi,ding aprogram of 

### constructive training aimed at the rehabilitation and successful 

### re-establishment insociety of delinquent children” (Emphasis added)
These are our general impressions given without the banefit of any specific fact situation. Doubtless there will be many situations which will arise and which will be determined Ian the light of the circumstances ~thenexisting.
SUMMARY
fhe Youth Development Council has exclusive auth

### ority todetermine treatment and disposition, as outlined in Section 18 ofthe Youth Development Council Act, of delinquent. children committed to it by Juvenile Courts after 

### theeffective date of the Act, including authority to/

.

Hon. John 3%Winters, Page 9 (V-1013)

grant final and complete discharge from State control (Art. 5143c, V. C. S.)
The Council has authority to determine treatment and disposition, as specified in Seetlon 29 of the 

### Act, of delinquent children committed to the Catesville, Gainesville, and Brady State Training Schools prior to the effective date of the Act, except the authority to
fcant final and cnmplete discharge from State control. At% 9f43c, V. C. S., and 

### Art. 233861, V, C. 8.)
Yours trery truly,

APPROVED PRICE DANIEL Attorney General

.

!