I 

The Attorney General of Texas 

April 11, 1984 

JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austin, TX. 79711. 2548 

5121475-2501 

Telex 9101874-1367 

Telecopier 512/475-0266 

714 Jackson, Suite 700 

Dallas, TX. 75202-4506 

2141742-8944 

4824 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

9151533.3484 

r 

1001 Texas. Suite 700 

Houston, TX. 77002-3111 

7131223-5986 

806 Broadway, Suite 312 

Lubbock, TX. 79401-3479 

8061747-5238 

4309 N. Tenth. Suite B 

McAllen, TX. 78501.16fl5 

5121682-4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 78205.2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

r 

Honorable Jim Bob Darnell 

Criminal District Attorney 

2nd Floor 

Lubbock County Courthouse 

P. 0. Box 10536 

Lubbock, Texas 79408 

Dear Mr. Darnell: 

You have asked whether the 

opinion No. JM-144 

Re: Whether a rule of the 

Texas Juvenile Probation 

Commission violates the Texas 

Constitution or statutes 

Texas Juvenile Probation Commission standard 

section 341.4(d), which requires juvenile 

probation officers to be paid not less than adult 

probation officers in the county or district, 

violates either the Texas statutes or 

constitution. 

Texas Juvenile Probation Commission Standard section 341.4(d) 

provides, in pertinent part, that 

[the] juvenile board shall ensure that all salary 

levels of juvenile probation department personnel 

are reasonable and comparable with prevailing 

salaries of the public and private sectors, in the 

respective county or district, but in no case will 

the salary scale for juvenile probation officers 

be less than the salary scale for adult probation 

officers. 

In 1981, the Texas Legislature enacted chapter 75 of the Texas 

Human Resources Code and article 5138d. V.T.C.S., in the same bill to 

improve the juvenile justice system by improving the effectiveness of 

probation services, providing financial aid from the state to juvenile 

boards for probation services, and establishing uniform probation 

administration standards. - See Texas Human Resources Code 975.001. 

The pertinent part of article 5138d reads as follows: 

(b) In all Texas counties, the juvenile 

board . . . may, with the advice and consent of 

p. 619 
Honorable Jim Bob Darnell - Page 2 (JM-144) 

the commissioners court, employ and designate the 

titles and fix the salaries of probation 

officers . . . according to the standards 

established by the Texas Juvenile Probation 

Commission and the needs of the local jurisdiction 

as determined by the juvenile board . . . . This 

determination, if inconsistent with salaries 

established by laws governing the creation of a 

juvenile probation department for a particular 

jurisdiction, supersedes and controls over those 

statutory provisions. 

Prior to 1981, several statutes provided that compensation of 

juvenile probation officers would be fixed by certain juvenile boards 

"subject to the approval of the commissioners court." Such statutes 

were interpreted as authorization to the commissioners court to reject 

the compensation set by the juvenile board and to refuse necessary 

approval of a budget submitted by the juvenile board for the 

compensation of juvenile probation officers. See V.T.C.S. arts. 

5142b, 5142c, 5142d; Attorney General Opinion MW-15 (1979). The 

enactment of article 5138d in 1981 impliedly repealed those prior 

statutes to the extent of conflict. If a conflict exists between two 

Etatutes, the earlier enactment is repealed by the later. See Stevens 

v. State, 159 S.W. 505, 507 (Tex. Grim. App. 1913). Also, inAttorney 

General Opinion MW-587 (1982). this office determined that article 

5138d expressly overrules salary determinations made under those prior 

statutes, and we agree with that conclusion. 

Section 75.041 of the Texas Human Resources Code directs the 

Texas Juvenile Probation Cormnission to promulgate reasonable rules for 

juvenile boards establishi~ng minimum standards for personnel, 

staffing, case loads, programs, facilities, record keeping, equipment, 

and other aspects of the operation of a juvenile board necessary for 

the provision of adequate and effective probation services. 

The provision in standard section 341.4(d) requiring juvenile 

probation officers to be paid not less than adult probation officers 

is such a "standard established by the Texas Juvenile Probation 

Commission." In Attorney General Opinion MW-587, this office 

concluded that the language in article 5138d confers on juvenile 

boards the same authority to fix the salaries of juvenile probation 

personnel that the adult probation statute (article 42.12, section 10. 

Code Criminal Procedure), confers on district judges regarding the 

salaries of adult probation personnel. In other words, the 

controlling statute, article 5138d. provides for consultation with the 

commissioners court by the juvenile board in fixing the salaries of 

juvenile probation officers, but it does not authorize the 

conrmissioners court to reject the compensation set by the juvenile 

board in accordance with standards established by the Texas Juvenile 

? 

? 

, 

p. 620 
. . 

Honorable Jim Bob Dame11 - Page 3 (JM-144) 

Probation Commission, unless there is clear abuse of discretion. See 

Commissioners Court of Hays County v. District Judge, 506 S.W.2d 630 

(Tex. Civ. App. - Austin 1974, writ ref'd n.r.e.); Commissioners Court 

of Lubbock County v. Martin, 471 S.W.Zd 100 (Tex. Civ. App. - Amarillo 

1971, writ ref'd n.r.e.). Accordingly, we conclude that Texas 

Juvenile Probation Comission Standard, section 341.4(d) is authorized 

by Texas statutes. 

It is well established that a county has only those powers or 

duties which specifically are conferred on it by the constitution and 

statutes of this state. See Canales v. Laughlin, 214 S.W.2d 451, 453 

(Tex. 1948); Renfro v. Shr?hire, 566 S.W.Zd 688, 690 (Tex. Civ. App. 

- Eastland 1978, writ ref'd n.r.e.); Harrison County v. City of 

Marshall, 253 S.W.Zd 67, 69 (Tex. Civ. App. - Fort Worth 1952, writ 

ref'd). 

Article V, section 18 of the Texas Constitution vests the 

commissioners court with "such powers and jurisdiction over all county 

business, as is conferred by this Constitution and the laws of the 

State, or as may be hereafter prescribed." Neither article V, section 

18, nor any other provision of the constitution, precludes the 

leeislature from comittinn anv countv business to some other anencv. 

Gairett v. Commissioners tour; of Limes,tone County, 230 S.W.-1010, 

1016 (Tex. Civ. App. - Dallas 1921), ref d on other grounds, 236 S.W. 

970. Article XVI, section 61 of the Texas Constitution, which relates 

to compensation for certain district and county officers on a salary 

basis, as distinguished from a fee basis, is not applicable to the 

constitutionality of standard 341.4(d). 

Further, article III, section 44 of the Texas Constitution 

provides that "the legislature shall provide by law for the 

compensation of all officers, servants, agents and public contractors 

not provided for in this constitution." The duty of providing for 

compensation by law rests solely with the legislature, but section 44 

does not prevent the legislature from empowerin~g other authorities to 

determine salaries, as long as it provides guidelines capable of 

reasonable application. The fixing of the exact sum of compensation 

is a constitutionally delegable right. See In re Johnson, 554 S.W.2d 

775 (Tex. Civ. Ann. - Cornus Christ1 1977. writ ref'd n.r.e.1 569 

S.W.22 882; Commissioners Court of Lubbock County v. Martin, &, at 

105. The provisions of chapter 75 of the Human Resources Code and 

article 5138d, which authorize juvenile boards to fix the salaries of 

juvenile probation officers according to the needs of the local 

jurisdictions and the uniform standards which the legislature directed 

the Texas Juvenile Probation Commission to establish, constitute such 

a delegation of the power to set compensation. Therefore, we believe 

the statutes authorizing the promulgation of Texas Juvenile Probation 

Commission Standard section 341.4(d) are a constitutjonal delegation 

of authority by the legislature. 

p. 621 
. . 

Honorable Jim Bob Darnell - Page 4 (JM-144) 

SUMMARY 

Texas Juvenile Probation Comission Standard 

section 341.4(d), which requires that juvenile 

probation officers not be paid less than adult 

probation officers in the county or district, 

violates neither Texas statutes nor the Texas 

Constitution. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Nancy Sutton 

Assistant Attorney General 

APPROVFD: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Jon Bible 

David Brooks 

Colin Carl 

Jim Hoellinger 

Nancy Sutton 

p. 622