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#tmant Council and dadknes it6 powers, dutiets, 

and function6 in respect to juv6nif6 d6lSnquenoy. The Act. among 

other things, gives to the Ceuncik aI1 rights, 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 of Article 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 State 
Hon. 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 of juvenile courts. Section 5 of 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 the jurisdiction of the court until he becomes 

twenty-one (21) years of age, unless discharged prior 

thereto . . .” 

Section 14 of Article 2338-l reads in part 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 the juvenile court 

continuing jurisdiction over a child adjudged delinquent and empowers the juvenile court to modify or revoke any order 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 of the 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 on probation or in a suitoble public or private institution or agency other than a 
I . 

Hen. John 2% Winters, Page 3 (V-1013) 

State Training School, the Court shall commit him to 

the Council, but msy suspend the execution of the order 

of such commitment.” 

“Sec. 18. When a child has been committed to the 

Council, it may: 

“(a) Permit him his liberty under eupervision and 

upon such conditions as it beDoves conducive to accaptnble behavior; or 

“(b) Order his confinement under such conditions 

81 it believes beet designed fmr his welfare and the interests of the pubk; or 

“(c) Order reconfinement or renewed release as 

often a8 conditions indicate to be desirable; or 

“(d) Revoke or modify any order of the Council rffecting a child, except an order of final diocharge, as 

often l e conditions indic&e to be derirable; or 

“(c) Diecharge him fropn coatrol when it is sotirficd that snch discharge will best serve his welfare and 

the protection of the public,” 

Sectionr 1 snd 44 of Ariiek 514%~ dochre in substance 

that the purpose of the Act and Yc faactioa of the Council is the coordination and improvement of faciU4ee for UC prevention and rehabilitation of juvenile delinquency, 

In view of the aforementioned sections of the Youth Development Council Act, we believe that it w&s the intention of the legislature to give, in so far as it lawfully CM, to me Youth Development 

Council exclurive authority, as outlined ia Section 18 of the Act, to 

determine treatment and disposition of delinquent children and that 

Article 2330-l is amended by implication to the extent hereinafter 

indicated. 

Having concluded that the legislature intended to vest in 

the Council as much authority as possible in respect to the powers 
Hon. 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 of the Council over children committed to the Youth Development Council after the passage of the Youth Development 

Council Act. The problem is whether t.he Legislature 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. In Pennsylvania 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 of parole 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 of the 

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 of the others, except in 

the instances herein expressly permittedI” 
. , 

bikewisa, $t has b44tr held in o&r fwip&l,etinn,s that 

there i$ no iJr&ngemen% ef the function$ of the juaiciary where 

a St&4 confers p6mets upon ad e&iinEqsfrative body to establish 

a sysitzm of parole and also 40 garnt 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 a patient W&I .&as been 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 the authority 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 in part as follows: 

“The Council may release under supervision at any 

time, and may place children in its custody in their usual homes or in any situation or family that it has approved I . . .I’ 

Custody of delinquent children presently committed to one of the 

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 a judicial 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 nn interference with a judicial 

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 a previous 

examination, shall not of itself entitle the ch,ild to dk&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.o the Council 

as delinquent, if not already discharged, shall be discharged 

or referred back to the Court when he reaches his twentyfirst birthday. *’ 
. . 

Hon. JOh4 H. 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$ie release 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. &l this conne,ction, the court, in Pennyslvania ex rel 

B+nks v. ,&a, supr8, said: 

‘“Thr ~8awZefst of the power of parole be’ing but an 

adminiserr&+e fun&don which does not impinge upon 

the judicial power of rmrrtemring the accused in conformity with thie I*w, it folfaws that the present act may constitutionally be applied to casts where scntemcts were 

goosed before ,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 a judkisl order 

for the Council to release under supervision children committed 

to a State Training School prior to the effective date of the Act, 

it would, however, be an unlawful interference with a judicial 

order for the Council to attempt to discharge from all State control any of the children who were committed prior to the Act. These 

children were committed pursuant to Article 2338-l. V. C. S., which 

expressly gave ‘TV the juvenile court continuing jurisdiction. Consequently, the judici~al orders committing these children either expressly or impliedqy were subject to madificatlon or rev,ocation at 

the discretion 6f the committing courts. We do not believe that 

the Legislature in enacting the Youth Development Council Act 

attempted to give to the Counc,il authority to modify or revoke any 

previously made order of a juvenile 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 it was 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 a program of constructive training aimed at the rehabilitation and successful re-establishment in society 

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 ~then existing. 

SUMMARY 

fhe Youth Development Council has exclusive authority to determine treatment and disposition, as outlined 

in Section 18 of the Youth Development Council Act, of 

delinquent. children committed to it by Juvenile Courts 

after the effective 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 

f 

cant 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 

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