### DAN MORALES

ATTORNEY GENERAI. 

# QBffice

ofttp !ZWmtepQBeneral &ate of?Itexae January 341992

Honorable BillTurner BraxosCountyDistrict Attorney 300East26thStreet, Suite310 Bryan Texas 77803 Opinion No.DM-79 Re: Whether ajuvenile board created pursuant to chapter 152 of the Human Resources Code has the power to hire and discharge employees of a juvenile probation department after it has employed a chief juvenile probation officer (RQ-136) Dear Mr.Turner: You have asked whether the Braxos County Juvenile Board (the “ juvenile board”) has the authority to hire and discharge employees of the Brazes County Juvenile Probation Department (the “ juvenile probation department”) after the juvenile board has employed a chiefjuvenile probation officer. Asweunderstand your request, your concern is whether juvenile probation department personnel decisions,includinghiringandfiringofsubordinate employees, are solelywithinthe authority ofthe chiefjuvenile probation officer, or whether thejuvenile board has the authority toexercisecontrol overthese decisions. Thejuvenile board wascreated under chapter 152ofthe Human Resources Code.’ Section 152.0007ofsubchapter Aofthat chapter, whichdefines the dutiesof thejuvenile board,provides:

Thejuvenile board shalh (1) establish ajuvenile probation department and employ personnel to conduct probation services, including a chief probation officer and, if more than one officer is necessary,

‘Chapter 152 of the Human Resources Code was enacted as

### partof legislation recodi&iq the juvenile board provisions. See Acts 1989,71st Lq., ch. 352,s 6, at 1430.

P. 395Honorable Bill Turner - Page 2 (DM-79)

assistant offkers, who meet the standards set by the Texas Juvenile Probation Commission; and (2) operate or supervise juvenile services in the county and make recommendations as to the need for and purchase of services. Hum. Res. Code 9 152.0007. Section 152.0008provides:

(a) The chief juvenile probation officer may appoint necessary personnel with the approval ofthe board. (b) Juvenile probation officers serve at the pleasure of the appointing authority. Id. 9 152.0008. In addition, section 152.0271, which applies solely to the Brazes County Juvenile Board, provides in pertinent part that “[t]he chief juvenile probation officer may set the salaries and allowances of juvenile probation personnel with the approval ofthe board.” Id.$ 152.0271(e).
You suggest that these provisions may conflict. Specifically, you contend that whereas section 152.0007(1)appears to vest the juvenile board with the authority to hire juvenile probation department personnel, sections 152.0008 and 152.0271(e) appear to vest authority over personnel matters with the chief juvenile probation officer. You state that under this statutory scheme, “it is not clear whether the board or chief probation officer is required to employ other members of the department, or ifthat duty may vary at thejuvenile board’s discretion.” We consider the authority to hire and fire juvenile probation department personnel separately below. As noted above, section 152.0007(l) vests the juvenile board with the duty to establish ajuvenile probation department and employ personnel, including assistant juvenile probation officers and other employees, but section 152.0008(a) vests the chief juvenile probation officer with the authority to “appoint necessary personnel with the approval of the board.” We believe that section 152.0008(a) delegates to the chief juvenile probation officer the authority to interview and select applicants, and to hire assistant juvenile probation officers and other employees subject to the juvenile board’s approval. Thus, thejuvenile board’s authority with respect to hiring ofpersonnel islimited to approving or rejecting the chiefjuvenile probation officer’s

p. 396Honorable Bill Turner - Page 3 (DM-79)

hiring decisions. We believe that this interpretation of section 152.0008(a) does not conflict with section 152.0007(l) because the term “toemploy” in the latter provision does not necessarily mean to hire, but may simply mean to provide compensation2 Subchapter A of chapter 152is even less straightforward with respect to the authority to terminate assistant juvenile probation officers and other employees. The critical question in interpreting subchapter A in this respect is the meaning of

“appointing authority” in section 152.0008(b), which provides that “uluvenile probation officers serve at the pleasure of the appointing authority.” Section 152.0008(a) suggests that the chief juvenile probation officer is the “appointing authority” for all personnel. The predecessor statute for the Brazes County Juvenile Board, section 8(a) offormer article 5139EEEEE,s however, provided as follows:

The director of juvenile services may appoint necessary personnel and set their salaries and allowances with the approval of the board. Thedirectorand otherjuvenileprobation officers serve at the pleasure of the appointing authority. (Emphasis added.) We conclude from the language highlighted above that under former section 8(a), the “appointing authority” was thejuvenile board rather than the director ofjuvenile services, because the legislature obviously did not intend the director to serve at his own pleasure.
In the current statute, section 152.0008, the “chiefjuvenile probation officer” is analogous to “director ofjuvenile services.” Thus, section S(a) of the predecessor statute and section 152.0008(b) would be in conflict ifthe chief juvenile probation officer were held to be the “appointing authority” for purposes of the latter

*We further note that the predecessor provisions to sections 152.0007 and 152.COO8,sections 7 and 8 of article 5139EEEEE, V.T.C.S., were enacted as part of the same legislation adopted in 1983. See Acts 1983, 68th Leg., ch. 1062, at 5621; seealso note 3, infra. Therefore, sections 1.52.ooO7(1) and 152.0008(a) mast be read in harmony if at all possible. Ciry of Wesf Lake Hills v. Wrsfwood Legal Defense Fund, 598S.W.2d 681,684 (Tex. App.--Waco 1980, no writ).

3Prior to 1989, each juvenile board was governed by a separate statute. In recodifying the juvenile board provisions, the legislature attempted to cull from the many juvenile board provisions the characteristics common to all and to recodify them in subchapter A of chapter 152. Acts 1989, 71st Leg., ch. 352,s 1,at 1323. Thus, in construing subchapter A as it applies to the Brazes County Juvenile Board, we must look to the former statute which governed that particular juvenile board.

P. 397Honorable Bill Turner - Page 4 (DM-79)

provision. The implicit definition of “appointing authority” found in former section S(a) must control in determining the authority ofthe Braxos County Juvenile Board because chapter 152was enacted as part of a nonsubstantive recodification of the juvenile board provisions, Acts 1989,71st Leg., ch. 352, 86. SeeJohnson v. City of Fort Worth, 774 S.W.2d 653, 654-55 (Tex. 1989). Therefore, we conclude that the juvenile board isthe “appointing authority” for purposes of section 152.0008(b), and thus has the authority to terminate the chief and assistant juvenile probation officers. With respect to all other employees, subchapter A is silent regarding the delegation ofthe authority to terminate, aswas itspredecessor. As noted above, we believe section 152.0008(b) expressly authorizes the juvenile board to terminate juvenile probation officers. By implication, this procedure does not apply to other employees. For this reason, and based on the requirements set forth in section 152.0008(a) for appointments, we believe that the legislature intended to delegate the authority to terminate all other employees to the chief juvenile probation officer, subject to the approval of the juvenile board. As with appointments, we believe that the juvenile board’s authority with respect to terminating employees other than juvenile probation officers is limited to approving or rejecting the chief juvenile probation officer’s decisions.
In sum, in section 152.0008(a) the legislature has delegated to the chief juvenile probation officer the authority to appoint personnel, both assistant juvenile probation officers and other employees, subject to the approval of the juvenile board. Pursuant to section 152.0008(b), the juvenile board has the authority to terminate the chief and assistant juvenile probation officers, despite the fact that it has hired a chief juvenile probation officer. We also conclude that subsection (b), by implication, authorizes the chiefjuvenile probation officer to terminate all other employees, subject to the approval ofthejuvenile board. SUMMARY
Pursuant to sections 152.0007 and 152.0008 of the Human Resources Code, the chief juvenile probation officer of the Brazes County Juvenile Probation Department has the authority to appoint juvenile probation department personnel, subject to the approval of the Brazos County Juvenile Board. The chief juvenile probation officer and assistant juvenile probation officers serve at the pleasure of the juvenile board, and the

p. 398Honorable Bill Turner - Page 5 (DM-79)

juvenile board has the authority to terminate their employment. The chief juvenile probation offker has the authority to terminate other juvenile probation department employees, subject to the approval ofthejuvenile board.

DAN MORALES Attorney General ofTexas
WILL PRYOR First Assistant Attorney General
MARY KELLER Deputy Assistant Attorney General JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General RENEA HICKS Special Assistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared byMary R. Crouter Assistant Attorney General

p. 399