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 a deputy sheriff and charge him with 

investigating and handling juveniles in the same 

manner as a deputy might be charged with investigating and handling hot check cases. It is understood that the deputy in question would report 

the findings of his investigation to the County 

Attorney for determination as to whether a formal 

complaint needs to be filed as provided in Article 

2338-1, V.A.T.S. 

"2 . In connection with the above question, 

can the County Judge utilize this deputy to make 

investigations for him and aid the Juvenile Court 

in other matters as the Judge may request. 

"3 . Can a Juvenile Judge commit a juvenile 

to jail in the manner shown by the copy of the 

attached commitment." 

The Order of Commitment attached to your letter was entered by 

the Judge of the Juvenile Court of Deaf Smith County, and it 

orders the commitment of a 16-year old male child, adjudged a 

delinquent, to the Deaf Smith County Jail "for a period of 90 

days, subject to the Court's review." 

Firstly, under the provisions of Article 3902, Vernon's 

Civil Statutes, a commissioners court does not have authority to 

appoint a deputy sheriff. However, the sheriff makes application 

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Hon. Andy Shuval, page 2 (M-763) 

to the commissioners court for appointment of such deputy, and 

the commissioners court, within its discretion, authorizes the 

appointment of such deputy and sets his salary within the minimums 

and maximums authorized by law. The commissioners court, or any 

member thereof, is prohibited from attempting to influence the 

appointment of any person as a deputy 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 of his investigations to the County Attorney in accordance 

with Article 2338-l(7), Vernon's Civil Statutes, as hereinbelow 

set forth. 

In our view, the legal issue presented for resolution 

by the substance of your first two questions is as follows: 

Does a deputy sheriff have the ex officio authority to perform 

the functions of a juvenile officer? 

The powers of a juvenile officer are set forth in 

Article 5142, which provides, in part, 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; to be present 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 to perform such other services 

for the child as may be required by the court or said 

Board, and such juvenile officers shall be vested 

with all the power and authority of police officers 

or sheriffs incident to their offices." 

We believe the foregoing Article evinces the intention 

of the Legislature to place primary responsibility for handling 

cases involving juvenile delinquents on individuals designated as 

juvenile officers. 

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

provides that: 

"Any person may, and any peace officer shall, 

give to the Judge, County Attorney, or to the Probation Officer of the county, information in his 

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Hon. Andy Shuval, page 3 (M-763) 

possession that a child is within the provisions of 

this Act. Thereupon the Judge, the County Attorney 

or the Probation Officer shall make or have made, 

preliminary inquiry to determine whether the interests 

of the public or of the child require that further 

action be taken. If either the Judge or the County 

Attorney shall determine that formal jurisdiction 

should be acquired, the County Attorney shall prepare 

and file in the court, or any attorney may prepare 

and file in the court, a petition alleging briefly 

the facts which bring said child within the provisions of this Act, and stating: (1) the name, age 

and residence of the child; the names and residences, 

(2) of his parents, (3) of his legal guardian, if 

there be one; (4) of the person or persons having 

custody or control of the child; and (5) of the 

nearest known relative, if no parent or guardian 

can be found. If any of the facts herein required 

are not known by the petitioner, the petition shall 

so state. The proceedings shall be styled 'In the 

matter of a delinquent child."' 

@mph asis added.) 

A deputy sheriff is county peace officer, and is, therefore, 

one of the persons and officers who may act under this Article. 

With the exception of the duties imposed upon peace officers by 

this Article, we are unable to find any further authorization for 

the performance by a deputy sheriff of the duties of a county 

juvenile officer. 

We are of the opinion that the following statement 

of the law is applicable to your question: 

"Public officers . . . possess only such 

powers as are expressly conferred on them by law 

or are necessarily implied from the powers so 

conferred. They cannot legally perform acts not 

authorized by existing law." 47 Tex.Jur.2d 139-40, 

Public Officers, Sec. 106. 

In view of the foregoing, we hold that a deputy sheriff 

has no ex officio authority to perform 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 

the duties or functions of any peace officer relative to any 

offenses committed by juveniles. 

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Hon. Andy Shuval, page 4 (M-763) 

Your third question, and the copy of the commitment 

submitted to us 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 is delinquent, or otherwise within 

the provisions of this Act, the court may by order 

duly entered proceed as follows: 

"(1) place the child on probation or under 

supervision in his own home or in the custody of a 

relative or other fit person, 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; 

or place 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 to be for the best interest of the child, 

except as herein 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 be placed 

or committed to any compartment of any jail or lockup 

in which persons over juvenile age are incarcerated 

or detained; but shall be placed in a room or ward 

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 in which 

adults are confined. Said detention place may be 

in the same building housing adults, or in a 

building separate and apart from that where adults 

are confined." (Emphasis added.) 

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Hon. Andy Shuval, page 5 (M-763) 

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, of Vernon’s 1948 Statutes), and the Court does not 

release such child unconditionally, or place him on 

probation or in a suitable public or private institution or agency other than a State Training School, 

the Court shall commit him to the (State Youth Development) Council, but may suspend the execution 

of the order of such commitment.” 

In view of Sections 13(c) and 17 of Article 2338-l 

and Article 5143c, Section 12, which must be harmonized and 

considered together, we are of the opinion that it is manifest 

that a juvenile court judge has no power 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 in Article 2338-l(7), 

Vernon’s Civil Statutes. However, a sheriff 

may authorize one of his deputies to investigate 

and handle juvenile matters and to report the 

findings of his investigations to the County 

Attorney. 

(2) A juvenile court judge has no authority, 

pursuant to Sections 13(c) and 17 of Article 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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Hon. Andy Shuval, page 6 (M-763) 

Prepared by Austin 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 

First Assistant 

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