## THEA'ITORSEY OFTEXAS GENERAL

June 25, 1974 The Honorable Tom Bevill District Attorney Stephens County Courthouse Room 206 Breckenridge. Texas 76024 Opinion No. H- 334 Re: Authority ofDistrict Court to grant and revoke probation absent appointment of “probation officer. ” Dear Mr. Betill:

You have requested **our** opinion onwhether a “probation clerk” who does not meet the mimimum qualifications for appointment as “probation officer” as provided in Section 10ofArticle 42.12, V.C.C.P., may nevertheless perform some of the duties of probation officer in the 90th District Court ofStephena County.

You also ask whether the district **court** may compal probationers to pay the statutory probation service fee, order probationers to report monthly to the probation “clerk,” and revoke probation for violation **of such**  conditions ofprobation if the district court has not appointed a fully qualified probation officer toassist the court.

Article 42.12. V. C.C.P., the Adult Probation and Parole Law, ~defines a “probation officer” in Section Z(d) ,as a**.pers,on,**

. . . duly appointed by one or more courts of record having original criminal jurisdiction, to supervise defendants placed onprobation; or a person designated by.such courts for such duties ona part-time basis;
. , .

p. 1542. .

The Honorable Tom Bevill page 2 (H-334)

Section 10sets minimum qualifications for persons who are eligible to be selected by appointment. The relevant language in Section 10is:

. . . Only those persons who have successfully completed education in anaccredited college or university and two years full time paid employment in responsible probation or correctional work with juveniles or adults, social welfare work, teaching or personnel work; or persons who are licenoed attorneys with experience in criminal law;
. . . shall be eligible for appointments as probation officers
. . . . Provided, however, that in a **county,** having a population of less than 50,000, according to the last preceding Federal census, any perron having completed at least two years education inanaccredited .colfege or university will be eligible for appointment. [emphasis added] It is **our** opinion that some tasks normally performed by a probation officer may be performed by other probation personnel at the direction of the district judge. Section 10begins with the language:

For the-purpose of providing adequate probation services, the district judge or district judges .having original jurisdiction of criminal actions in the county or counties, if applicable, are authorized, with the advice and consent ofthe commissioners court as hereinafter provided, to employ and designate the titles and fix the salaries ofprobation officers, and such administrative. supervisory, stenographic, clerical, and other personnel as may be necessary to conduct presentence investigations, supervise and rehabilitate probationers, and enforce the terms and conditions ofprobation. [emphasis added] ,

p. 1543.

I

. . s

The Honorable Tom Bevill page 3 (H- 334) .a: *’

Section 10implies that “other personnel” may be employed to assist the probation officer in preparing pre-sentence reports, conducting investigations, supervising.probationers and enforcing theterms and conditions of probation. And if other probation personnel may perform these enumerated duties under the supervision ofa probation officer appointed by the court, it is reasonable to infer they may perform these tasks directly under the supervision ofthe court whether or not a probation officer has also been appointed.

Your second question is whether a court may grant probation require the payment of a statutory probation service fee, and revoke probation for violation of probationary terms and conditions, if it has notappointed or designated a “probation officer” toassist the court.

Although nocase has directly addressed your question, several decisions by the Texas Court ofCriminal Appeals indicate that a district court’s power to grant probation, fix or modify conditions of probation, or revoke probation is not limited by the court’s failure to use the services of a probation officer. Valdez v. State, 491S.W. 2d415(Tex. Crim. ~1973); Marr v. State, 487S.W. 2d 93 (Tex. Crim. 1972). The cases further indicate that a court’s power is not limited by failure of a probation officer to properly perform his duties. Hilts v. State, 476 S.W. 2d 283 (Tex. Crim. 1972). Mullins v. State, 464 S.W. 2d669 (Tex. Crim. 1971).

Whether ~adefendant is entitled to probation, and, ii so, upon what conditions, are matters solely for the trial ,cour.t’s discretion. Martin v. State, 452 S.W. 2d481 (Tex. Grim. 1970).

In answer toyour question it is our opinion that the 90th District Court of Stephens County may order payment of the statutory probation service fee (Section 6a, Art. 42.12, V. C.C.P.); order probationers to report monthly toa probation “clerk”; and revoke probated sentences of probationers who violate terms of their probation whether or not a probation officer is employed in Stephens County.

p. 1544

## ‘\ ! ;, .

,
The Honorable Tom Bevill page 4 (H-334)

SUMMARY A probation “clerk” may perform some of the duties ofaprobation officer directly under the supervisien ofthe court. A district court may exercise its probationary powers under Art. 42.12, V. C. C,P., whether or not Ithar employed a. “probation officer” to aarist the court.



# bd HN L. HILL Attorney General of;Texas APP OVED: A

DAVID M. KENDALL, Chairman

p* 1545