December 29,1970

Honorable Andy Shuval County Attorney Opinion No.M-763 Deaf Smith County Courthouse Re: Questions relating to Hereford, Texas 79045 authority of county officers over juveniles. Dear Mr. Shuval:

Your recent letter requesting the opinion of this office concerning the referenced matter poses the following questions:11

1. Can the County Commissioners hire an individual as adeputy sheriff and charge him with investigating and handling juveniles in the same manner as adeputy might be charged with investigating and handling hot check cases. It isunderstood that thedeputy in question would report the findings ofhis investigation to the County Attorney for determination as towhether a formal complaint needs tobe filed asprovided inArticle 2338-1, V.A.T.S. "2
. In connection with the above question, can the County Judge utilize this deputy tomake investigations for him and aid the Juvenile Court inother matters as the Judge may request. "3
. Can aJuvenile Judge commit a juvenile to jail in themanner shown by the copy of the attached commitment." The Order of Commitment attached toyour letter was entered by the Judge of theJuvenile Court of Deaf Smith County, and it orders the commitment of a 16-year oldmale child, adjudged a delinquent, to the Deaf Smith County Jail "for aperiod of 90 days, subject to the Court's review."

Firstly, under theprovisions ofArticle 3902,Vernon's Civil Statutes, a commissioners court does not have authority to appoint adeputy sheriff. However, the sheriff makes application

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to the commissioners court for appointment of such deputy, and the commissioners court, within itsdiscretion, authorizes the appointment of such deputy and sets his salary within theminimums andmaximums authorized by law. The commissioners court, or any member thereof, isprohibited from attempting to influence the appointment of anyperson as adeputy and such appointment is the exclusive function of the sheriff.

The sheriff may authorize the deputy so appointed to investigate and handle juvenile matters and to report the findings ofhis investigations to the County Attorney in accordance with Article 2338-l(7), Vernon's Civil Statutes, ashereinbelow set forth.
Inour view, the legal issuepresented for resolution by the substance ofyour first two questions is as follows: Does adeputy sheriff have the ex officio authority toperform the functions of a juvenile officer?

The powers of a juvenile officer are set forth in Article 5142, which provides, inpart, as follows:

"Such (juvenile) officers shall have authority and it shall be their duty to make investigations of all cases referred to them as such by such (county juvenile) Board; tobepresent in court and to represent the interest of the juvenile when the case is heard, and to furnish to the court and such Board any information and assistance as such Board may require, and to take charge of any child before and after the trial and toperform such other services for the child asmay be required by the court or said Board, and such juvenile officers shall bevested with all thepower and authority ofpolice officers or sheriffs incident to their offices."
We believe the foregoing Article evinces the intention of the Legislature toplace primary responsibility forhandling cases involving juvenile delinquents on individuals designated as juvenile officers.

However, Article 2338-l(7), Vernon's Civil Statutes, provides that:

"Anyperson may, and anypeace officer shall, give to the Judge, County Attorney, or to the Probation Officer of the county, information inhis

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possession that a child iswithin theprovisions of thisAct. Thereupon the Judge, the County Attorney or the Probation Officer shallmake orhave made, preliminary inquiry todetermine whether the interests of thepublic or of the child require that further action be taken. Ifeither the Judge or the County Attorney shall determine that formal jurisdiction should be acquired, the County Attorney shallprepare and file in the court, or any attorney may prepare and file in the court, apetition alleging briefly the factswhich bring said child within the provisions of this Act, and stating: (1)thename, age and residence of the child; the names and residences, (2)of his parents, (3)ofhis legal guardian, if there be one; (4)of the person orpersons having custody or control of the child; and (5)of the nearest known relative, ifno parent or guardian can be found. If any of the facts herein required are not known by the petitioner, thepetition shall so state. Theproceedings shall be styled 'Inthe matter of a delinquent child."' @mphasis added.)
A deputy sheriff is county peace officer, and is, therefore, one of thepersons and officers whomay actunder thisArticle. With the exception of the duties imposed upon peace officers by thisArticle, we are unable to find any further authorization for theperformance by adeputy sheriff of the duties of a county juvenile officer.

We are of the opinion that the following statement of the law is applicable toyour question:

"Public officers
. . .possess only such powers as are expressly conferred on them by law or are necessarily implied from thepowers so conferred. They cannot legally perform acts not authorized by existing law." 47 Tex.Jur.2d 139-40, Public Officers, Sec. 106.
Inview of the foregoing, we hold that adeputy sheriff has no ex officio authority toperform the duties of a county juvenile officer, with the exception of those duties set forth in Article 2338-l(7), supra. However, this opinion does not restrict theduties or functions of anypeace officer relative to any offenses committed by juveniles.

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Your third question, and the copy of the commitment submitted tous in connection therewith, involves the legality of a juvenile court judge's committing a juvenile to a county jail. Article 2338-1(13)(c) provides as follows:

"If the (juvenile court) judge or jury finds that the child isdelinquent, or otherwise within theprovisions of thisAct, the court may by order duly entered proceed as follows: "(1) place the child onprobation orunder supervision inhis own home or in the custody of a relative or other fitperson, upon such terms as the court shall determine; "(2) commit the child to a suitable public institution or agency or to a suitable private institution or agency authorized to care for children; orplace the child in a suitable family home or parental home for an indeterminate period of time, not extending beyond the time the child shall reach the age of twenty-one years; "(3)make such further disposition as the court may deem tobe for thebest interest of the child, except asherein otherwise provided." (Emphasis added.) Article 2335X-1(17)provides:
"No female person over the age of ten (10) years ?L?id

under the age of eighteen (18)years, or erson over the age of ten (10)years and %:hf seventeen (17)years, shall beplaced or committed to any compartment of any jail or lockup inwhich persons over juvenile age are incarcerated or detained; but shall beplaced in a room orward separate and apart from that occupied by adults
. . . The proper authorities of all counties shall provide (a)suitable place of detention for such juveniles separate and apart from any jail or lockup inwhich adults are confined. Said detention place may be in the same building housing adults, or in a building separate and apart from thatwhere adults are confined." (Emphasis added.)

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Article 5143c(l2), Vernon’s Civil Statutes, directs that: “When any child is adjudged delinquent under provision of Section 13 of Chapter 204 of the General Laws of the Regular Session of the Fortyeighth Legislature, 1943, (Sec. 13,Article 2338- 1, ofVernon’s 1948 Statutes), and the Court does not release such child unconditionally, orplace him on probation or in a suitable public orprivate institution or agency other than a State Training School, the Court shall commit him to the (StateYouth Development) Council, butmay suspend the execution of the order of such commitment.”
Inview of Sections 13(c) and 17 ofArticle 2338-l andArticle 5143c, Section 12,which must beharmonized and considered together, we are of the opinion that it ismanifest that a juvenile court judge has nopower or authority whatsoever to order a juvenile delinquent committed to a county jail to serve a sentence. SUMMARY

(1)A deputy sheriff has no ex officio authority to act as a county juvenile officer, with the exception of the duties relating to juveniles set forth inArticle 2338-l(7), Vernon’s Civil Statutes. However, a sheriff may authorize one ofhis deputies to investigate and handle juvenile matters and to report the findings ofhis investigations to the County Attorney. (2)A juvenile court judge has no authority, pursuant to Sections 13(c) and 17 ofArticle 2338-1, Vernon’s Civil Statutes, to order the commitment of a juvenile delinquent to a county jail other than for temporary detention pending his other disposition. n

y General of Texas

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Prepared byAustin C. Bray, Jr. Assistant Attorney General APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman Dan Green Sam Jones Gordon Cass Scott Garrison
MEADE F. GRIFFIN Staff Legal Assistant
ALFRED WALKER Executive Assistant NOLA WHITE FirstAssistant

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