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                                     &ate of fEeme
DAN MORALES                           February 6.1992
 ATTORNEY
      GENERAL


     Honorable James Warren Smith, Jr.        Opinion No. DM-87
     Frio County Attorney
     P. 0. Box v                              Re: Responsibility for transporting juve-
     Pearsall, Texas 78061-1138               niles 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 a juvenile board consisting of the Frio County
    judge and the two district judges whose districts encompass Frio County. See Hum.
    Res. Code 5 152.9881. The juvenile court of Frio County sits in the town of Pearsall,
    but the county’s juvenile detention center is located in Jourdanton, Atascosa
    County, about 40 miles distant. You state that a juvenile 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 ask who is responsible for the transportation of defendants to
    and from juvenile court.

            No statute fixes any mandatory responsibility on any person or entity for the
    transportation of juvenile defendants. A proceeding against a child alleged to have
    engaged in delinquent conduct or in conduct indicating a need for supervision must
    be initiated in juvenile court by a prosecuting attorney. Family Code 0 53.04(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) of the Family Code provides that

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




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Honorable James Warren Smith, Jr. - Page 2             (DR- 8 7 )




          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 is responsib,;
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 laws governing criminal procedure have no application to proceedings
in juvenile court. Family Code 9 51.17. Finally, we note that the offices of both
sheriff and constable constitute independently elected positions. Absent clear
statutory or constitutional authority of which there is none, it would be anomalous
to conclude that a county judge was authorized to require a sheriff or constable to
transport individuals to and from juvenile 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,ooO population.
Section 111.010 provides, in pertinent 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                        HumanResourcesCodeauthorizesa commissioners
                  section l52.Wl4 of the                                               court
to pay‘otherexpensescertincdas necessaryby thejuvenileboardchairmanfromthe generalfundsof
the county;that sectionis spcciticaUy
                                    madeinapplicableto Frio Countyby se&on l520881(c) of the
HumanResources code.



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Honorable James Warren Smith, Jr. - Page 3         (DM-87   1




              (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. If the court amends the original budget to meet
         an emergency, the court shall ille a copy of its order amending
         the budget with the county clerk, and the clerk shall attach the
         copy to the original budget.

A determination of what constitutes a “grave public necessity” is largely a question
of fact which must be made by the commissioners court, but it should be noted that
in the one reported case, the court disallowed the commissioners’ finding. See Baar
County v. Ha&y, 150 S.W.2d 980 (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) of the 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 225,000 population may amend its
         budget to provide funds for transportation of juveniles 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 of reasonably diligent thought and attention.”

                                                   Very truly yours,




                                                   DAN      MORALES
                                                   Attorney General of Texas



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Honorable James Warren Smith, Jr. - Page 4      (DM- 8 7 )




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 by Rick Gilpin
Assistant Attorney General




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