E L%YITORNES GENERAL 

Honorable Charles R. Ramaay 

County Attorney, Hays County 

P. 0. Box 2319 

San Marcos, Texas 78666 

Opinion No. M-393 

Re: Whether the employment and 

designation of adult probation officers is subject 

to express approval of the 

commissioners court, and 

Dear Mr. Ramsay: related question. 

You have requested the opinion of this office op the 

following two questions: 

“1. Is the employment and designation. 

of adult probation officers subject 

to the express approval of the commissioners court? 

"2 . If the answer to question number one is 

‘yes’ is the advice and consent of the 

commissioners court of each county In a 

multi-county district mandatory?” 

The answers to your questions involve an lnterpretation of Article 42.12, Section 10, Code of Criminal 

Procedure, which provides, in part, that 

,I 

. . ..the district judge or district judges having 

original jurisdiction of criminal actions in 

the county or counties, If applicable, are 

authorized, wlth the advice and consent of the 

commissioners court as hereinafter provided, 

to employ and designate th titles and fix 

the salaries of probation zfficers, 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. ) 

- 1945 - 
- . 

Hon. Charles R. Ramsay, page 2 (M-393) 

The language of Artlole 42.12, Section 10, provides expressly that the district judge must seek the 

“advice and consent of the commissioners court as hereinafter provided.” (Emphasis added.) However, the underlined 

language Is ambiguous and misleading, since no subsequent 

prOVi8lOn is set out in the statute for the advice and 

consent of the commissioners court. Thus, the statute 

is subject to two Interpretations: (1) the judge must 

obtain the advice and consent set forth in the statute; or 

(2) the judge is not required to obtain consent, there 

being no provision thereinafter provided to cover the 

manner or conditions of a consent requirement; hence the 

ambiguous language must be deemed superfluous and yield 

to the clear leglslatlve intent expressed In the statute 

when considered as a ,whole. 

Where the language of a statute is ambiguous, construction beoomes necessary. Koy v. Schneider, 221 S.W. 

880 (Tex.Sup. 1920). “The fun&mental rule controlling the 

&ongtruction of a statute is to ascertaln the Intention of 

the Legislature expressed therein. That intention should 

be ascertained from the entire act, and not from isolated 

portions thereof .‘I of Mason v. West Texas UtllitieS 

237 S W.2d 273 

$&mine ihe corr& 

T S 1931) Th in order to 

t$&$ion of iecti%‘lO, the 

entire statute must be considered and discussed in 11&t 

of the alms and purposes of the Legislature with respect 

to the probation system In Texas. 

The purpose of the statute is stated in Section 1 of 

Article 42.12: 

“zt Is the purpose of this Article to place 

wholly within the State courts of appropriate 

jurlsdictlon the responsibility for determlnlng when the imposition of sentence in 

certain cases shall be suseended, the conditions of probation, and the supervIa= 

of probationers, in consonance with th 

powers assigned to the judicial brancheof 

this government by the Constitution of Texas.... 

It is the final purpose of this Article to 

remove from existing statutes the limltatfonsS 

other than questions of constltutlonalfty, 

that have acted as barriers to effective systems 

of probations and paroles in the public interesteU 

(E3nphaeis added.7 

- 1946 - 
Hon. Charles R. FWnSaY, Page 3 (M-393) 

Section 10 of Article 42.12 further imposes the duty upon 

the district judge to employ probation officers, designate 

their titles and fix their salaries. 

To effectuate the expressed purpose of the statute, 

the Legislature imposed certain powers and duties on the 

judges of courts having original jurisdiction of criminal 

actions. The judge of the court which has jurisdiction 

of the case may suspend the lmpositlon of the sentence and 

may place the defendant on probation and/or Impose a 

fine commensurate with the offense committed “when It shall 

appear to the satisfaction of the court that the ends of 

justice and the best Interests of the public as well as 

the defendant will be subserved thereby..,.” (Section 3). 

The jud e must determine the terms and conditions of the probation 7 Section 6). The court, further, must supervise any 

person placed on probation (Section 3), a-t Is implicit 

In the statute that probationers be closely supervtised 

since the court is empowered to alter or modify the terms 

of probation at any time during the period of probation 

(Section 6), reduce or terminate probation when the 

defendant has satisfactorily completed one-third of the 

original probationary period or two years of probation; 

whichever is less (Section 7), and issue a warrant for the 

arrest of the defendant should any of the terms of 

probation be violated (Section 8). Moreover, only the 

court in which the defendant was tried may exercise the 

powers enumerated above unless the court has transferred 

jurisdiction to another court with the consent of such 

court (Section 5). Thus, the judge has th f ull responsibllity of seeing that the terms and condit;ons of probation are enforced. 

Under certain conditions, the jury may recommend 

probation in the verdict. Where such recommendation Is 

made, the court must grant probation (Section 3a) and 

supervise the de-ant during the subsequent period of 

probation (Section 3). This provision is inconsistent 

and repugnant to that provision in Section 10 which 

ambiguously provides that the commissioners court’s 

consent to employ probation officers is also required. 

Clearly, the intent of the Legislature as expressed 

In the body of the statute is primarily the same as the 

purpose stated In the first part of Section 1, Artlc3.e 42.12: 

- 1947 - 
Hon. Charles R. Ramsay, Page 4 (M-393) 

to Place the responslbillty of suspending the imposition 

of sentences, determining conditions of probation, and 

supervising probations In consonance with the powers 

assigned to the judicial branch by the Constitution of 

Texas. 

It would be impossible, indeed, for the court to 

discharge Its dutles and responsibilities under the 

statute without the assistance of probation officers or 

even without a sufficient number of probation officers, 

At the direction of the court, these officers conduct 

presentence Investigations and submit written reports 

which include "the circumstances of the offense, criminal 

record, social history and present condition of the 

defendant" as well as a report of physical and mental 

examinations of the defendant, whenever such examinations 

are practicable (Section 4). In addition, they supervise 

the probationers, attempt to rehabilitate them, and enforce 

the terms and conditions of the probation (Section 10). 

That the court was necessarily intended to have 

probation officers whenever required and decreed Is 

abundantly clear, for the judge can perform neither his 

mandatory nor his permissive responsibilities without them. 

That the Legislature Intended that the court should have a 

sufficient number of probation personnel to carry out its 

statutory duties is also explicit under Section 10, which 

speclfically expresses the intent that (1) the caseload of 

each probation officer should not substantially exceed 

seventy-five probationers; (2) a person who handles 

juvenile probation may not be required to serve as probation officer for adults, and vice-versa; and (3) in 

districts where more than one probation officer Is required, 

the chief adult probation officer, with the approval of 

the court alone, "shall appoint a sufficient number of 

assistants and other employees to carry on the professional, 

clerical, and other work of the court. 

The Legislative intent and purpose Is plain. The 

only question remaining involves which of the two possible 

interpretations listed above gives effect to that intent 

and purpose. 

Under the first alternative, the judge or judges 

may appoint a probation officer only with the advice and 

-1948- 
. . 

Hon. Charles R. Ramsay, Page 5 (M-393) 

consent of the commissioners court. However, "probation 

officers must be employed as district officers." Attorney 

General Oplnlon No. M-336 (1969). Their jurisdiction is 

co-extensive with the court or courts under whose auspices 

they are appolnted; and, although the judge or judges may 

assign a probation officer to work in a specific county 

or counties within the court's jurlsdictlon, all expenses, 

including salary, must be paid by the various counties 

comprising the district in proportion to the population 

of such counties. It logically follows that, under this 

interpretation, whenever a court appoints an adult probation officer, the approval and consent of the commissioners 

court of each and every county within the district must 

be obtained.1 Since a judicial district is sometimes 

comprised of as many as six counties (and a majority of 

the districts are comprised of more than one county,)the 

commissioners court of only one county, by merely disapproving an appointment or appointments of probation 

officers, could effectively prevent necessary probation 

services In all of the counties involved. A conflict 

resulting in widespread confusion would result, leaving 

the district court in a "standoff" with the commlsaionera 

court and depriving the indlvldual of his legal right to 

supervised probation when judicially decreed. No less 

important is the right of the public to supervised probation of the criminal. 

1 Another alternative based on this reasoning is 

possible. Since a probation officer must be appointed as 

a district officer and the clause In question refers to 

the county commissioners court in the singular, the advice 

and consent provlsion applies only to single-county 

districts. This argument is rejei?ted, however, because 

the language immediately preceeding this clause refers 

to "judge or judges In the county or counties,' indicating that single-county and multi-county districts ape 

Intended to be treated in a like manner. 

-1949- 
Hon. Charles R. Ramsay, Page 6 (M-393) 

Such consequence Is contrary to both the expressed 

and implied Intent of the Legislature in promulgating 

this statute. It would be Ironic, Indeed, if the statute 

which was supposed “to remove from existing statutes 

the limitations.. . . that have acted as barriers to 

effective systems of probations and paroles....“. 

(Section 1) had instead erected more formidable obstacles! 

In construing ambiguous language, the consequences 

of any particular construction are properly taken into 

conslderatlon. Thus, the court will adopt the construction 

“that avoids mischievous consequences and upholds constitutional and legal rights” and wlll “avoid a construction that will render an act or provision arbitrary, 

or discriminator $:, futile, or purposeless, oppressive, 

or unreasonable. It will not adopt a construction that 

would “make it impossible or Impracticable of enforcement, 

so as to enable a person to defeat or nullify itat will. 

Moreover, the court will avoid a construction that will 

result in conflict, confusion....” 53 Tex.Jur.2d 240-243, 

Statutes, Sec. 164. 

For all of the above reasons, the second alternative 

construction is to be preferred over the first alternative 

above discussed. Under the second alternative, the 

advice and consent of the commissioners court Is not required. The district judge or judges having original 

jurlsdlctlon In the county or counties may employ probation personnel necessary to carry out the duties 

required by statute, limited only by the specifications 

in Section 10 as to qualifications, caseloads, etc. The 

effect of this construction Is in accordance with the 

legislative purpose and Intent providing for an effective 

system of probation by enabling the judge to appoint 

probation officers whenever, in his discretion, he 

determines that they are needed to carry out the work of 

the court. 

Often ” . . ..in construing a statute It frequently 

happens that a word or phrase must be added to, or eliminated 

from, a particular part or section in order to carry out 

the manifest intent, as disclosed by the entire enactment. 

Under these circumstances ,..... repugnant, superfluous, or 

useless words and expressions may be disregarded.” 53 Tex. 

Jur.2d 201, 202, Statutes, Sec. 138. Therefore, the words 

- 1950- 
. . . 

Hon. Charles R. Ramsay, page 7 (M-393) 

"with the advice and consent of the commissioners court" 

must be deemed superfluous and disregarded; to do otherwise would be to thwart the legislative intent expressed 

in the statute as a whole. 

The conclusion reached herein is in accord wit 

decisions reached in numerous foreign jurisdictions. D 

These decisions have generally been based on the 

principle that the court has inherent and constitutional 

power to employ necessary personnel with which to perform 

the duties required of them, to fix a reasonable 

salary for such personnel, 

of funds for such payment.3 

and to require appropriation 

2 See for example, Knox County Council V. McCormick, 

217 Ind. 493 29 N.R 2d 405 (lm*Noble County Council 

v. State, 

Johnson, 

234 Ind. lj2, 125 N.E.2da?09 (1955) St t 

224 Ind. 540, 69 N.R.2d 549 (1946); &?ii++%ate, 

204. 390, 184 N.E. 535 (1933); In Re Appointment of 

the Clerk of the Court of Appeals, 29~7 S W 2d 764 (KY. 1957 

Smith v. Miller, 384 P 2d '(jo (Colo. 1965): Schneider v. 

Cunninaham,ont. li5, 101 P. 962 (1909)- Ra 

'County of Saline, 

State v. Pf iff 

171 Neb. 538, 106 N.W.2d 667776). 

163 Ohio St. 149, 126 N.E.2d 57 (1455); 

In Re Janit& o?&preme Court, 35 Wlsc 

h, Am.J 

410 (1874); 

2d 440 441 

Courts kYi4. 

- , C ourts N 79; 21 C1J.S. 28, 

3 There are no cases in Texas which discuss precisely 

this point. However, in Wichita County v. Griffin, 

284 S.W.2d 253 (Tex.Civ.App. 1955, error ref. n.r.e.) the 

court was allowed to set the salary of his court reporter 

even though such action was contested by the commissioners 

court on the nrounds that this matter resided within its 

discretion. in Hidalgo County Water Improvement District 

No. Two v. Cameron County Water Control and Improvement 

Dist. No. Five, 250 s W 2d 941 (Tex.Civ.App. 1952 no 

writ), the judge was ;pield in his appointment of's water 

master, although the powers given to the water master 

were more extensive than those given to the master in 

chancery (Rule 171, T.R.C.P.) and there was no other 

statute authorizing such appointment. 

-1951- 
. 

Ron. Charles R. Ramaay, page 8 (M-393) 

In view of the foregoing, the answer to your 

first question must be In the negative. Since the 

problem posed in your second question is based on an 

affirmative answer to the first question, no answer 

to It is required. 

SUMMARY 

It being the intent of Article 42.12, 

Code of Criminal Procedure, to create 

district-wide probation services, the 

employment and designation of adult 

probation officers Is not subject to 

the approval of the county commissioners 

court. 

era1 of Texas 

Prepared by Sarah E. Phillips 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Rob Lattlmore 

Houghton Brownlee 

James S. Swearingen 

Rob Flowers 

W. V. GEPPERT 

Staff Legal Assistant 

RAWTRCRNE PHILLIPS 

Executive Assistant 

-1952-