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 of District Court 

to grant and revoke probation 

absent appointment of “probation 

officer. ” 

Dear Mr. Betill: 

You have requested our opinion on whether a “probation clerk” 

who does not meet the mimimum qualifications for appointment as “probation officer” as provided in Section 10 of Article 42.12, V. C. C. P., may 

nevertheless perform some of the duties of probation officer in the 90th 

District Court of Stephena 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 

of probation if the district court has not appointed a fully qualified probation 

officer to assist 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 on probation; or a person designated 

by.such courts for such duties on a part-time basis; . , . 

p. 1542 
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The Honorable Tom Bevill page 2 (H-334) 

Section 10 sets minimum qualifications for persons who are eligible 

to be selected by appointment. The relevant language in Section 10 is: 

. . . Only those persons who have successfully 

completed education in an accredited 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 in anaccredited 

.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 10 begins 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 of the 

commissioners court as hereinafter provided, to 

employ and designate the titles and fix the salaries 

of probation 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 of probation. 

[emphasis added] 

, 

p. 1543 
. 

I . . 

s 

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

Section 10 implies that “other personnel” may be employed to 

assist the probation officer in preparing pre-sentence reports, conducting 

investigations, supervising.probationers and enforcing the terms and 

conditions of probation. And if other probation personnel may perform these 

enumerated duties under the supervision of a probation officer appointed by 

the court, it is reasonable to infer they may perform these tasks directly 

under the supervision of the 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 not appointed or 

designated a “probation officer” to assist the court. 

Although no case has directly addressed your question, several 

decisions by the Texas Court of Criminal 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, 491 S. W. 2d 415 (Tex. Crim. ~1973); 

Marr v. State, 487 S. 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. 2d 669 (Tex. Crim. 1971). 

Whether ~a defendant 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. 2d 481 (Tex. Grim. 1970). 

In answer to your 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 to a 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 
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! 

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The Honorable Tom Bevill page 4 (H-334) 

SUMMARY 

A probation “clerk” may perform some of the 

duties of a probation officer directly under the 

supervisien of the court. A district court may 

exercise its probationary powers under Art. 42.12, 

V. C. C, P., whether or not It har 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