OFFICE OF THE ATTORNEY GENF.R.K. STATE OF TEXAS 

JOHN CORNYN 

December 15,200O 

The Honorable William M. Jennings 

Gregg County Criminal District Attorney 

101 East Methvin Street, Suite 333 

Longview, Texas 75601 

Opinion No. JC-03 14 

Re: Whether and the extent to which a board of 

district judges may be involved in the hiring of 

employees of a community supervision and 

corrections department (RQ-0232-JC) 

Dear Mr. Jennings: 

The director of a community supervision and corrections department is responsible to 

“employ a sufficient number of officers and other employees” to perform the work of the 

department. TEX. GOV’T CODE ANN. 5 76.004(b) (Vernon 1998). A prior opinion of this office, 

Attorney General Opinion DM-208, concludes it is the department director, and not the district 

judges who participate in the management of the department, who ultimately selects necessary 

personnel for the department. See Tex. Att’y Gen. Op. No. DM-208 (1993) at 5. You ask us to 

clarity the extent to which districtjudges may involve themselves in the hiring process of department 

personnel other than the department director.’ We conclude that it is the judges, not the director, 

who are ultimately responsible to appoint department personnel. We overnde Attorney General 

Opinion DM-208. 

You state that the judges in your county have, on two occasions, “involved themselves in the 

hiring process for positions underneath the” community supervision and corrections department 

director. Request Letter, note 1, at 1. You have advised the judges that they may “participate” in 

the hiring process, but, in accordance with Attorney General Opinion DM-208, the ultimate hiring 

authority “belongs to the department director.“* Thus, you believe the director of the department 

may hire the employee of his choice for a particular position. See Dexter Letter, note 2, at 1. 

Concomitantly, you believe the judges have no power to approve or disapprove the director’s hiring 

decision. See id. You ask whether your understanding of the division of authority between the 

judges and the department director comports with the law. See Request Letter, note 1, at 1. 

‘Letter from Honorable William M. Jennings, Gregg County Criminal District Attorney, to Rebecca Payne, 

Open Records Division Chief, Offke of the Attorney General (May 17, 2000) (on tile with Opinion Committee) 

[hereinafter Request Letter]. 

‘Letter from Honorable William M. Jennings, Gregg County Criminal District Attorney, to Bill Dexter, 

Personnel Director, Gregg County Courthouse (May 17,200O) (on tile with Opinion Committee) [hereinafter Dexter 

Letter]. 
The Honorable William M. Jennings - Page 2 (JC-0314) 

A community supervision and corrections department is established in each judicial district 

by the districtjudge orjudges trying cases in the district. &~TEx. Gov’TCODEANN. 5 76.002(a)(l) * 

(Vernon 1998). The judges shall “employ district personnel as necessary to conduct presentence 

investigations, supervise and rehabilitate defendants placed on community supervision, enforce 

the conditions of community supervision, and staff community corrections facilities.” Id. 

5 76,002(a)(2). Additionally, “[tlhe district judges trying criminal cases and judges of statutory 

county courts trying criminal cases that are served by a community supervision and corrections 

department are entitled to participate in the”department’s management. Id. 5 76.002(b). The district 

judges must appoint a department director, see id. 5 76.004(a), and the director “shall employ a 

sufficient number of officers and other employees to perform the [department’s] professional and 

clerical work,” id. 5 76.004(b). 

The statute is not facially clear as to how the appointment and employment duties are to be 

divided between the judges and the department director. Section 76.002 states that it is the judges 

who shall employ district personnel to conduct presentence investigations; supervise and 

rehabilitate defendants placed on community supervision; enforce community supervision 

conditions; and staff community corrections facilities. See id. 5 76.002(a)(2). On the other hand, 

section 76.004 states that it is the department director, appointed by the district judges, who “shall 

employ . officers and other employees to perform the [department’s] professional and clerical 

work.” Id. $ 76.004(b). 

We can conceive of two possible constructions of sections 76.002 and 76.004. The district 

judges may appoint the director, and the director appoints additional officers and employees. Under 

this construction, the judges’ responsibility to “employ” is simply the responsibility to compensate. 

In the alternative, the judges’ statutory authority to employ and to participate in the management of 

the district provides them with final authority to appoint or to approve all employees and appointees. 

The amount of preliminary authority delegated to the director is to be decided by the judges. 

This office adopted the first construction in Attorney General Opinion DM-208, which 

concludes that district judges have no power to approve the department director’s employment 

selections. See Tex. Att’y Gen. Op. No. DM-208 (1993) at 5. Thus, “employ” in section 76.002 of 

the Government Code, which defines the judicial power vis&vis a community supervision and 

corrections department, refers to the district’s responsibility to compensate department officers and 

employees, while “employ” in section 76.004, which requires the department director to “employ 

a sufficient number of officers and employees” to staff the department, authorizes the department 

director to hire the necessary personnel. See id. The opinion suggests in a footnote that the district 

judges have authority to approve the number of employees the director may hire. See id. at 5 n.2; 

see also Tex. Att’y Gen. Op. No. JM-1185 (1990) at 2 (“The judge or judges appoint a department 

director, who employs other persons to do the work of the department.“). 

The conclusion of Attorney General Opinion DM-208 devolves upon the director merely an 

illusory power. According to Attorney General Opinion DM-208, it is the department director, and 

not thejudges, who selects department employees. See TEX. GOV’TCODEANN. 9 76.004(b) (Vernon 
The Honorable William M. Jennings - Page 3 (JC-0314) 

1998). But although the judges have no power to approve a director’s hiring decisions, the judges 

have implied power to remove the department director. See id. 5 76.004(a) (requiring district judges 

to appoint department director). The judges also have the right to participate in the department’s 

management, See id. 3 76.002(b) (authorizing district judges trying criminal cases and judges of 

statutory county courts trying criminal cases to “participate in the management ofthe department”). 

Under such a system, it is not really the director who selects officers and employees because the 

director may easily be terminated for making the “wrong” choice. And the judges’ authority to 

manage the department must include the authority to approve or disapprove the director’s 

employment choices. 

The alternative interpretation is also problematic. The statute directs the department director 

to “employ” necessary personnel. Moreover, the alternative is difficult to reconcile with the 

legislative history of sections 76.002 and 76.004 of the Government Code. The substance of both 

sections, prior to 1989, was located in article 42.12, section 10 of the Code of Criminal Procedure. 

SeeActofMay29,1989,7lstLeg.,R.S.,ch.785, §4.17,1989Tex. Gen.Laws3471,3519. Atthat 

time, article 42.12, section 10(a) of the Code of Criminal Procedure required district judges to 

establish a probation office and to employ district personnel. See id. Section 10(b) authorized the 

judges to appoint a chief adult probation officer who, “with [the judges’] approval, shall appoint a 

sufficient number of assistants and other employees to carry on the professional, clerical, and other 

work of the court.” Id. In 1989 the legislature repealed article 42.12, section 10 and replaced it with 

a new statute, article 42.131 of the Code of Criminal Procedure. See id. $§ 3.02,4.17, 1989 Tex. 

Gen. Laws 3471, 3483-86,3519. While the 1989 enactment did not change the judges’ power to 

“appoint a department director” and to “employ district personnel,” it altered the director’s authority 

to employ officers and other district employees. See id. 5 3.02, art. 42.13 1, sets. 2(a), 4, 1989 Tex. 

Gen. Laws 3471,3483,3485. In particular, when the 1989 enactment became effective, the law no 

longer required that the director’s appointments receive the judges’ approval. See id. § 3.02, art. 

42.13 1, sec. 4,1989 Tex. Gen. Laws 3471,3485 (“The department director shall employ a sufficient 

number of officers and other employees to perform the professional and clerical work of the 

department.“). In 1995 the legislature transferred the substance of article 42.13 1 to chapter 76 ofthe 

Government Code. See Act of Apr. 25,1995,74th Leg., R.S., ch. 76,§ 7.11, 1995 Tex. Gen. Laws 

458,580-84; see also id. § 7.12, 1995 Tex. Gen. Laws 458,584 (repealing article 42.131, Code of 

Criminal Procedure). While the legislative history does not reveal legislators’ reasons for deleting 

the requirement that the director’s employment of other personnel receive the judges’ approval, the 

change must have some purpose. See TEX. GOV’T CODE ANN. 5 311.021(2) (Vernon Supp. 1998) 

(interpreter of statute must presume effectiveness of legislative acts). 

Although neither interpretation is perfect, we believe the interpretation adopted in Attorney 

General Opinion DM-208 is unworkable because of the illusory authority it provides the director. 

That opinion, for example, considers specifically whether the director of a community supervision 

and corrections department may hire the nephew of one of the district judges who is “entitled to 

participate” in the department’s management. Tex. Att’y Gen. Op. No. DM-208 (1993) at 1,3; see 

also TEX. GOV’T CODE ANN. $76.002(b) (Vernon 1998). Based on the conclusion that the judges 

lack authority to approve the director’s hiring choices, the opinion determines that the proposed 
The Honorable William M. Jemrings - Page 4 (JC-0314) 

hiring is not nepotistic and does not violate chapter 573 of the Government Code. See Tex. Att’y’ 

Gen. Op. No. DM-208 (1993) at 5; see also TEX. GOV’T CODE ANN. ch. 573 (Vernon 1994 & Supp. 

2000) (nepotism prohibitions). In reality, though, if the judges are unhappy with the director’s 

decision not to hire (or to hire) the nephew, they could tire the director, and thereby contravene the 

spirit, ifnot the letter, ofthe anti-nepotism statute. We therefore overrule Attorney General Opinion 

DM-208. 

We conclude instead that the judges have authority to finally approve the director’s choices. 

In our opinion, the legislature in 1989 may have deleted the phrase “with [the judges’] approval” 

simply because legislators viewed the explicit approval requirement redundant of the judges’ 

authority to employ and to participate in the department’s management. See TEX. GOV’T CODE ANN. 

$5 76,002(a)(2),(b); 76.004(b) (V emon 1998). Accordingly, contrary to Attorney General Opinion 

DM-208, a community supervision and corrections department may not hire the close relative ofone 

of the judges. Whether the judges limit their role to the approval authority or take a more extensive 

role is a matter for the judges to decide. 
The Honorable William M. Jennings - Page 5 (JC-0314) 

SUMMARY 

The district judges who are entitled to participate in the 

management of a community supervision and corrections department 

are authorized to finally approve all appointments made by the 

department director. Attorney General Opinion DM-208 (1993) is 

overruled. 

ey General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Kymberly K. Oltrogge 

Assistant Attorney General - Opinion Committee