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                        The Attorney                 General of Texas
                                              July   27,    1978
JOHN       L. HILL
Attorney General


                     Honorable A. R. Schwartz                      Opinion No. H-12 18
                     Chairman
                     Senate Jurisprudence Committee                Re: Distribution      and   use   of
                     State Capitol                                 probation fees.
                     Austin, Texas 787ll

                     Dear Senator Schwartz:

                            You ask several questions about the distribution and use of probation
                     fees after September 1, 1978, when new legislation on the financing of
                     probation services becomes effective.     Article 42.12 of the Code of Criminal
                     Procedure in its present form requires the county to pay the salaries of
                     personnel and other expenses essential to the adequate supervision of
                     probationers.   Sec. 10 (effective until September 1, 1978). Counties have paid
                     these expenses in part from probation fees, which the court orders the
                     probationer ,to pay pursuant to section 6a(a) of article 42.12. Section 6a(b)
                     requires the court to distribute the fees “to the county or counties in which
                     the court has jurisdiction      for use in administering   the probation laws.”
                     However, Senate Bill 39, enacted by the sixty-fifth legislature, provides for
                     state funding for probation services. Acts 1977, 65th Leg., ch. 343, at 910. It
                     creates the Texas Adult Probation Commission with authority to establish
                     minimum standards for the operation of probation programs and to distribute
                     state aid to them. Code Crim. Proc. art. 42.121. It also amends section 10 of
                     article 42.12, effective September 1, 1978, to provide in part:

                                   (a) . . . the district judge or district judges having
                                original jurisdiction of criminal actions in each judicial
                                district in this state shall establish a probation office
                                .. ..

                                  . . . .

                                  (h) The salaries of personnel, and other expenses
                                essential to the adequate supervision of probationers,
                                shall be paid from the funds of the judicial district.

                           You ask whether the courts must continue to distribute probation fees
                     to the counties after the amended section 10, article 42.12 becomes effective




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Honorable A. R. Schwarte      -   Page 2 .(H-1218)



on September 1, 1978. Article 42.12, section 6a(b), providing for distribution of the
fees, was not amended or expressly repealed by the sixty-fifth             legislature.
Nevertheless, since probation fees must be used “in administering the probation
laws,” changes in the probation laws are likely to affect the use of fees. Senate
Bill 39 requires the judicial district to assume many expenses of probation formerly
paid by the county. Code Crim. Proc. art. 42.12.

    In interpreting  the amended section 10 of article 42.12, we may consider
legislative history. Code Construction Act, V.T.C.S. art. 5429b-2, S 3.03(3). The
subcommittee which recommended Senate Bill 39 estimated that the cost to the
state per probationer per day for the state-wide system would be $.97. Joint
Advisory Committee on Government Operations - Subcommittee on Corrections,
Report with Recommendations to the Governor of Texas and Members of the Sixty-
Fifth Texas Legislature 44 (1977). The fiscal note, fin estimating the amount of
state aid required by Senate Bill 39, assumed that $.22 of the $.97 per probationer
cost would come from monthly supervision fees. Fiscal Note ,on Senate Bill No. 39,
March 17, 1977. Thus, the fiscal note combined state aid with probation fees,
making separate reference to the costs for which the county would be responsible.
In addition, a witness before the House Criminal Jurisprudence Committee stated
that probation fees would go Into the same fund as state aid. Tape recording of
public hearing on Senate Bill 39, March 29, 1977. We believe that the legislature
intended probation fees to be distributed for the same purposes as state aid and
viewed them as funds of the judicial district.

      Article 42.121, section 4.05(b) provides as follows:

               The fiscal officer designated for the district shall deposit
            all state-aid received under this article in a special fund of
            the county treasury, to be used solely for the provision of
            adult probation services and community-based        correctional
            programs and facilities other than jails or prisons.

We believe the probation fees should be deposited in this fund in the county
treasury. This procedure will comply with the language of section 6afbl of article
42.12. See also Attorney General Opinion M-784 (1971)~(county must deposit
probation fees in special trust fund or in general fund earmarked for probation
services). In addition, it will fulfill the legislative intent underlying Senate Bill 39
that probation fees and state aid be used together to support probation services.
The Adult Probation Commission has reached the same conclusion with respect to
the distribution of probation fees. It has promulgated a rule requiring that adult
probation fees be deposited in the special fund of the county treasury along with
state aid. Rule 608.01.00.080, 3 Texas Register 1720 (1978).

      Your second and third questions concern the authority of the county to use
the probation fees, and the purposes for which they can be spent. Although the
fees and state aid funds are to be kept in the county treasury, the judicial district




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Honorable A. R. Schwartz      -   Page 3    (R-1218)



 is the administrative   unit. See Code Crim. Proc. art. 42.12, S 10(a) (effective
 September 1, 1978). Section lOwprovides that the “salaries of personnel, and other
 expenses essential to the adequate supervision of probationers, shall be paid from
the funds of the judicial district.” We believe the probation fees, along with state
aid, should be spent in accordance with this provision. Section 10 of article 42.12
 refers to various expenses of probation. Section 10(f) states in part:

            It shall be the responsibility    of the county or counties
            comprising the judicial district or geographical area served
            by such district probation department. to provide physical
            facilities,  equipment, and utilities for an effective    and
            professional   adult probation and adult community-based
            correctional service.

In our opinion, this provision requires the counties to provide, from their own funds
and not from probation fees, the physical facilities, equipment, and utilities needed
for the probation office.     All other expenses are to be paid from district funds,
which include probation fees. Testimony before a legislative committee indicated
that Senate Bill 39 made the county responsible for facilities,         utilities, and
equipment, while the state was to be responsible for salaries, benefits, supplies,
travel, and training.       Tape of public hearing on S.B. 39, House Criminal
Jurisprudence Committee, March 29, 1977. See also Joint Advisory Committee on
Government Operations - Subcommittee on Corrections, m.

         We will consider your sixth question out of order, since it concerns the
definition of the term “physical facilities, equipment, and utilities” in section 10(f).
You ask whether this term includes automobiles or automobile expenses and
mileage., Section 10(e) states that probation officers shall be furnished transporta-
tion or an allowance for use of a personal automobile on official business. We
believe the automobile an:d automobile expenses are not facilities, equipment, or
utilities which a county must provide.           As already noted, legislative history
indicates that travel expenses would be the state’s responsibility.           Also, the
specific mention of automobiles in section IO(e) would tend to indicate that they
are not “equipment” within section 10(f). You also ask whether telephones and
telephone bills are “physical facilities, equipment, for1 utilities,” to be provided by
the county.      In our opinion, the term “utilities” includes local telephone service.
See V.T.C.S. art. 1446c, S 3(2)(a) (‘utility” in Public Utility Regulatory Act includes
entity selling telephone services); V.T.C.S. art. 6674w-4 (statute on relocation of
utility facilities covers telephone facilities).   We believe the county should pay the
telephone installation costs and telephone bills for local calls.

       Your fourth question asks whether the fees or state aid can be used for
juvenile probation services. Article 42.121, section 4.05(b) provides that. state aid is
to be used ‘solely for the provisi~on of adult probation services and community-
based correctional   programs and facilities other than jails and prisons.”         This
provision makes it clear that state aid may not be used for juvenile probation



                                     p.   4877
.   .   .




            Honorable A. R. Schwartz      -   Page 4        (R-1218)



            services.    Probation fees are to be used “in administering the probation laws.” In
            Attorney    General Opinion H-89 (1973) we stated that the primary purpose of the
            fees was     the administration    of the Adult Probation Law. However, relying on
            language    in section 10 of article 42.12, which indicated some correlation between
            the adult   and juvenile programs, the opinion reached the following conclusion:

                         [lfl . . . surplus funds are on hand, we cannot say that the
                         statute or legislative intent prohibits use of such funds for
                         financing and administering juvenile probation.

            The language in section 10 upon which Attorney General Opinion H-89 relied has
            been deleted in the ,amended version of section 10. The quoted conclusion of
            Attorney General Opinion H-89 is not applicable to the version of section 10 that
            will be effective September 1, 1978. After that date, surplus probation fees may
            not be used for administration of juvenile probation.

                   Your fifth question asks whether the fees or state aid can be used for the
            salary of a probation officer who voluntarily serves both adults and juveniles.
            Article 42.12, section 10(d) provides that “ftlhe same person serving as a probation
            officer for juveniles may not be required to serve as a probation officer for adults
            and vice versa.” If one person voluntarily serves both adults and juveniles, we
            believe the state aid and fees may be used only to pay the portion of his salary
            attributable to adult probation services.

                                                SUMMARY

                         After September 1, 1978, when the amended version of
                         article 42.12, section 10 of the Code of Criminal Procedure
                         becomes effective,    probation fees should be distributed to a
                         special fund in the county treasury established pursuant to
                         article 42.121, section 4.05(b) of the Code of Criminal
                          Procedure. The probation fees, along with state aid, shall be
                         used to pay salaries and other expenses of probation,
                          including automobile expenses.        Counties must provide
                         physical. facilities, equipment, and utilities, including tele-
                         phone service, for probation offices, and may not use
                         probation fees to pay for these expenses. Neither state aid
                         distributed under article 42.121, Code of Criminal Procedure,
                         nor probation fees may be used to support juvenile probation
                         services.   If one probation officer voluntarily serves both
                         juvenile and adult probationers, state aid and probation fees
                         may be used to pay only that portion of his salary’
                         attributable to adult probation services.




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Honorable A. R. Schwartz   -   Page 5   YR-1218)



                                         Very truly yours,




Opinion Committee

jsn




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