DAN MORALES

ATTORNEY GENERAL 

## QBffice

of tiy !Zittornep@enera &ate of fEeme February 6.1992

Honorable James Warren Smith,Jr. Frio County Attorney P. 0. Box v Pearsall, Texas 78061-1138 Opinion No.DM-87 Re: Responsibility for transporting juveniles between juvenile court and the county’s juvenile detention center, and related questions (RQ-35) Dear Mr. smith: You have requested our opinion as to the responsibility for transporting juveniles between the Frio County Juvenile Court and the county’s juvenile detention center. Frio County has ajuvenile board consisting of the Frio County judge and the two districtjudges whose districts encompass Frio County. See Hum. Res. Code 5 152.9881. Thejuvenile court ofFrio County sits in the townofPearsall, but the county’s juvenile detention center is located in Jourdanton, Atascosa County, about 40miles distant. You state that ajuvenile who is scheduled to appear in court must be transported from the detention facility by a peace officer, and in the case of a juvenile female, an adult female must accompany the party. You indicate that one constable has for many years assumed this burden, and that he is now requesting the commissioners court to require the other constables to share such duties. You first askwho isresponsible for the transportation ofdefendants to and fromjuvenile court. No statute fixes any mandatory responsibility on any person or entity for the transportation ofjuvenile defendants. Aproceeding against a child alleged to have engaged in delinquent conduct or in conduct indicating a need for supervision must be initiated injuvenile court by a prosecuting attorney. Family Code 053.04(a). The court is required to direct issuance of summons to, inter alia, “the child named in the petition.” Id. 853.06(a). Section 53.07(d) ofthe Family Code provides that

[t]he court may authorize payment from the general funds ofthe county of the costs of setvice and of necessary travel expenses

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incurred by persons summoned or otherwise required to appear at the hearing.
In our opinion, this provision is sufficiently broad to encompass the transportation expenses of a law enforcement officer required to accompany a juvenile to a hearing>
You also ask whether the Frio County judge may compel the sheriff or constables, or their deputies, either to transport juveniles or to act as bailiff in juvenile court. Such duties are not among those listed for the office of sheriff or constable. A constable is required by statute to attend justice court in his precinct, but neither he nor a sheriff has any duty with regard to the juvenile court. Ir Attorney General Opinion H-169 (1973),this office said that a sheriff isresponsib,; for transporting adult prisoners from a city to a county jail on the basis of article 2.18 of the Code of Criminal Procedure. Juvenile proceedings are civil in nature, however, and lawsgoverning criminal procedure have no application to proceedings injuvenile court. Family Code 951.17. Finally, we note that the offices of both sheriff and constable constitute independently elected positions. Absent clear statutory or constitutional authority ofwhich there is none, it would be anomalous to conclude that a countyjudge was authorized to require a sheriff or constable to transport individuals to and fromjuvenile court. Your last question is whether the Frio County Commissioners Court may expend funds for transportation of juveniles when such .expenditures were not provided for in the annual budget. Subchapter A of chapter 111, Local Government Code, details the procedures for adoption of a budget in counties of less than 225,ooOpopulation. Section 111.010provides, inpertinent part:

(b) After final approval of the budget, the commissioners court may spend county funds only in strict compliance with the budget, except in au emergency.
hIthough section l52.Wl4 of the Human Resources Code authorizes acommissioners

court topay‘other

expenses certincd asnecessary

bythe juvenile boardchairman

fromthegeneral

funds of thecounty;thatsection

isspcciticaUy

made inapplicable

toFrioCounty

byse&onl520881(c) ofthe Human Resources code.

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(c) The commissioners court may authorize an emergency expenditure as an amendment to the original budget only in a case of grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention. Ifthe court amends the original budget to meet an emergency, the court shall ille a copy ofits order amending the budget with the county clerk, and the clerk shall attach the copyto the original budget. A determination ofwhat constitutes a “gravepublic necessity” is largely a question offact which must be made by the commissioners court, but it should be noted that inthe one reported case, the court disallowed the commissioners’ finding. SeeBaar County v. Ha&y, 150S.W.2d980 (Tex. 1941); see also Attorney General Opinions O-5184 (1943); O-4127 (1941); O-2498 (1940). If the commissioners court is willing to tranrfer the necessary amount from another “budgeted item,” it may do so without authorizing an emergency expenditure, according to the terms of section 111.010(d)ofthe Local Government Code. SUMMARY A county judge is not expressly empowered to order a sheriff or constable to transport persons to and from juvenile court. Unless it transfers the amount from another budgeted item, a county of less than 225,000population may amend its budget to provide funds for transportation ofjuveniles only if the commissioners court finds that there exists a “grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use ofreasonably diligent thought and attention.” Very truly yours,

DAN MORALES Attorney General ofTexas

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WILL.PRYOR First Assistant Attorney General MARY KELLER Deputy Assistant Attorney General JUDGE ZOLLIE STEAKLEY (Ret) Special Assistant Attorney General IumEAHIcKs Special Assistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared byRick Gilpin Assistant Attorney General

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