### E L%YITORNES GENERAL

Honorable Charles R. Ramaay County Attorney, HaysCounty P. 0. Box2319 SanMarcos, 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.

Youhave requested the opinion of this office op the following twoquestions:

“1. Is the employment anddesignation. of adult probation officers subject to the express approval of the commissioners court?

"2. If the answer to question numberone is

‘yes’ is the advice andconsent of the commissioners court of each county In a multi-county district mandatory?” Theanswers to your questions involve an lnterpretation of Article 42.12, Section 10, Codeof 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 andconsent of the commissioners court as hereinafter provided, to employ anddesignate th titles andfix the salaries of probation zfficers, and such administrative, supervisory, stenographic, clerical, andother personnel as maybe necessary to conduct presentence investigations, supervise and rehabilitate probationers, and enforce the terms andconditions 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 andconsent of the commissioners court as hereinafter provided.” (Emphasis added.) However, the underlined language Is ambiguous andmisleading, since nosubsequent 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 andconsent set forth in the statute; or (2) the judge is not required to obtain consent, there being noprovision thereinafter provided to cover the manneror conditions of a consent requirement; hence the ambiguous language must be deemedsuperfluous andyield to the clear leglslatlve intent expressed In the statute whenconsidered as a,whole.

Wherethe language of a statute is ambiguous, construction beoomes necessary. Koyv. 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 Masonv. WestTexas UtllitieS 237SW.2d273 $&mine ihe corr& T S 1931) Th in order to t$&$ion of iecti%‘lO, the entire statute must be considered anddiscussed in 11&t of the alms andpurposes of the Legislature with respect to the probation system In Texas.

Thepurpose 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 whenthe imposition of sentence in certain cases shall be suseended, the conditions of probation, andthe 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 (E3nphaeisadded.7

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

Section 10of Article 42.12 further imposes the duty upon the district judge to employ probation officers, designate their titles andfix their salaries.

Toeffectuate the expressed purpose of the statute, the Legislature imposed certain powers andduties on the judges of courts having original jurisdiction of criminal actions. Thejudge of the court which hasjurisdiction of the case maysuspend the lmpositlon of the sentence and mayplace 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 andthe best Interests of the public as well as the defendant will be subserved thereby..,.” (Section 3). Thejud emust determine the terms andconditions of the probation 7Section 6). Thecourt, 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 empoweredto alter or modify the terms of probation at any time during the period of probation (Section 6), reduce or terminate probation whenthe defendant has satisfactorily completed one-third of the original probationary period or twoyears of probation; whichever is less (Section 7), and issue awarrant 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 wastried mayexercise the powers enumerated above unless the court has transferred jurisdiction to another court with the consent of such court (Section 5). Thus, thejudge has th full responsibllity of seeing that the terms andcondit;ons of probation are enforced.

Undercertain conditions, the jury may recommend probation in the verdict. Wheresuch 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 10which 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 sameas the purpose stated In the first part of Section 1, Artlc3.e 42.12:

- 1947-Hon. Charles R. Ramsay, Page4 (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 andresponsibilities under the statute without the assistance of probation officers or even without a sufficient numberof 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 andmental examinations of the defendant, whenever such examinations are practicable (Section 4). In addition, they supervise the probationers, attempt to rehabilitate them, andenforce the terms andconditions of the probation (Section 10).

That the court wasnecessarily intended to have probation officers whenever required anddecreed 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 numberof 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 whohandles juvenile probation maynot be required to serve as probation officer for adults, andvice-versa; and (3) in districts wheremore than one probation officer Is required, the chief adult probation officer, with the approval of the court alone, "shall appoint a sufficient numberof assistants andother employees to carry on the professional, clerical, andother workof the court.

TheLegislative 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.

Underthe first alternative, the judge or judges mayappoint 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 andconsent of the commissioners court of each andevery county within the district must be obtained.1 Since ajudicial district is sometimes comprised of as manyas six counties (and amajority of the districts are comprised of more than one county,)the commissioners court of only one county, bymerely disapproving anappointment or appointments of probation officers, could effectively prevent necessary probation services In all of the counties involved. Aconflict resulting in widespread confusion would result, leaving the district court in a "standoff" with the commlsaionera court anddepriving the indlvldual of his legal right to supervised probation whenjudicially decreed. Noless 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 andthe clause In question refers to the county commissioners court in the singular, the advice andconsent 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 andmulti-county districts ape Intended to be treated in a like manner.

-1949-Hon. Charles R. Ramsay,Page6 (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 wassupposed “to remove from existing statutes the limitations..

.. that have acted as barriers to effective systems of probations and paroles....“

. (Section 1) hadinstead 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 andupholds constitutional and legal rights” andwlll “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 “makeit 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....” 53Tex.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. Underthe second alternative, the advice and consent of the commissioners court Is not required. Thedistrict judge or judges having original jurlsdlctlon In the county or counties mayemploy probation personnel necessary to carry out the duties required by statute, limited only by the specifications in Section 10as to qualifications, caseloads, etc. The effect of this construction Is in accordance with the legislative purpose and Intent providing for aneffective 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 aword 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. Underthese circumstances ,..... repugnant, superfluous, or useless words andexpressions maybe disregarded.” 53Tex. Jur.2d 201, 202, Statutes, Sec. 138. Therefore, the words

-1950-. . .

Hon. Charles R. Ramsay, page7 (M-393)

"with the advice andconsent of the commissioners court" must be deemedsuperfluous anddisregarded; to dootherwise would be to thwart the legislative intent expressed in the statute as a whole. Theconclusion reached herein is in accord wit decisions reached in numerousforeign 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.3andto require appropriation

2 See for example, KnoxCounty Council V. McCormick, 217 Ind. 493 29 N.R2d405 (lm*Noble County Council v. State, Johnson, 234 Ind. lj2, 125 N.E.2da?09 (1955) St t

224 Ind. 540,69N.R.2d 549 (1946); &?ii++%ate, 204. 390, 184 N.E. 535 (1933); InReAppointmentof the Clerk of the Court of Appeals, 29~7SW2d 764 (KY. 1957 Smith v. Miller, 384P2d '(jo (Colo. 1965): Schneider v. Cunninaham,ont. li5, 101 P. 962 (1909)- Ra 'County of Saline, State v. Pf iff 171 Neb. 538, 106N.W.2d 667776). 163 Ohio St. 149, 126N.E.2d57 (1455); In ReJanit& o?&preme Court, 35Wlsc h, Am.J 410 (1874);

2d 440 441 Courts kYi4. - , C ourts N79; 21 C1J.S. 28,

3 There are nocases in Texas which discuss precisely this point. However, in Wichita County v. Griffin, 284S.W.2d 253 (Tex.Civ.App. 1955, error ref. n.r.e.) the court wasallowed to set the salary of his court reporter even though such action wascontested by the commissioners court on the nrounds that this matter resided within its discretion. in Hidalgo County Water Improvement District No. Twov. CameronCounty Water Control and Improvement Dist. No. Five, 250s W2d 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.) andthere wasnoother statute authorizing such appointment.

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Ron. Charles R.Ramaay,page8 (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, noanswer to It is required. SUMMARY

It being the intent of Article 42.12, Codeof 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: OPINIONCOMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman RobLattlmore Houghton Brownlee JamesS. Swearingen RobFlowers W.V. GEPPERT Staff Legal Assistant RAWTRCRNE

PHILLIPS Executive Assistant

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