                                         The Attorney             General of Texas
                                                             July 8, 1982
MARK WHITE
Attorney General

                                        Honorable Jerry Bhackelford            opinion No.MW-491
Supreme      Court Building             Chairman
P. 0. BOY 12546
                                        Texas Juvenile Probation Commission    Re: Whether Deaf Smith County
Austin,    TX. 7671% 2546
512/475-2501
                                        309 Potter County Courthouse           =Y   continue to employ a
Telex    9101674-1367                   Amarillo, Texas   79101                juvenile peace officer
Telecopier     5121475-0266
                                        Dear Judge Shackelford:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709
                                             You recently requested an interpretation of House Bill No. 1704.
2141742.6944                            which became effective on September 1, 1981 and is codified as Human
                                        Resources Code sections 75.001, et seq.
4624 Alberta       Ave., Suite    160
El Paso, TX.       79005-2793
                                            You ask:
9151533.3464
                                                    1.   Does   section- 75.042(f)    repeal   the
                                                 authority of the Deaf Smith County Juvenile Board
1220 Dallas Ave., Suite          202             to employ a juvenile peace officer under articles
Houston,     TX. 770026966
7131650-0666
                                                 5139DDD and 5142, V.T.C.S.?

                                                    2.   If such authority does remain in effect,
606 Broadway,        Suite 312                   is the Deaf Smith County Juvenile Board in
Lubbock,     TX.    79401.3479                   compliance with House Bill No. 1704, by combining
6061747-5236
                                                 both of the titles as equal positions, under the
                                                 same office, including the sharing of files,
4309 N. Tenth. Suite B                           budget, etc.? If not, do the statutes require
McAllen,     TX. 76501-1665                      separate and distinct offices under the juvenile
5121662.4547                                     board?

200 Main Plaza, Suite 400                    In order to answer your questions, it is necessary to analyze the
San Antonio,  TX. 76205.2797            statutes to determine what each authorized. We will also discuss the
5121225-4191                            custom and practice with respect to allocating duties between juvenile
                                        officers which counties have followed.
An Equal      Opportunity/
Affirmative     Action     Employer          Article 5142, V.T.C.S., was enacted in 1919, and originally
                                        provided for the appointment of "probation officers." It was amended
                                        in 1927 to apply to "juvenile officers." The duties,of these officers
                                        were enumerated in article 5142:

                                                    Such officers shall have authority and it shall
                                                 be their duty to make investigations of all cases
                                                 referred to them as such by such Board; to be




                                                                    p. 1745
Honorable Jerry Shackelford - Page 2   (MW-491)




          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. (Emphasis added).

Article 5142 has not been expressly repealed. A juvenile officer with
the powers enumerated in this provision has the authority of a peace
officer. Attorney General Opinion H-1157 (1978).

     The duties of the juvenile officer along with his title indicate
that juvenile officers would have the responsibilities of both a peace
officer and of a child's advocate. See, e.g., In re S.E.B., 514
S.W.2d 948 (Tex. Civ. App. - El Paso 1974, no writ) (a juvenile
officer may make arrest without a warrant for any offense committed
within his presence or view); Attorney General Opinion O-7332 (1946)
(a juvenile officer has the legal right to carry a gun in the
discharge of official duty). Both responsibilities were to lie in one
person, as shown by the provision in article 5142 for one juvenile
officer in counties under 80,000 persons. Attorney General Opinion
o-2997 (1941).

     Article 5139DDD, enacted in 1971, authorized the establishment of
a juvenile board in the county of Deaf Smith, and permitted the
appointment of a juvenile officer or officers. Section 3 of that
article gave the county board the final determination of the
qualifications for the position of juvenile officer. All the powers
and duties described in article 5142 were expressly given to Deaf
Smith juvenile officers. The legislature has not expressly repealed
this statute.

     You have forwarded to us information indicating that a juvenile
officer was hired subsequent to the passage of article 5139DDD. and
that in 1979, the juvenile board divided that office into two
positions: juvenile peace officer and juvenile probation officer.
The juvenile peace officer is commissioned through the sheriff's
department. It appears, however, from our examination of articles
5139DDD and 5142, V.T.C.S., that juvenile officers in both positions
would have the powers of peace officers, even though the board
assigned them different responsibilities for administrative reasons.




                               p. 1746
Honorable Jerry Shackelford - Page 3 (m-491)




     You also sent us excerpts from the 1978 Texas Juvenile Probation
Manual, which highlight the dichotomy which has arisen due to the use
of the title "juvenile officer." It states in pertinent part:

            The usage of the term 'juvenile officer' is
         misleading. It is often used in reference to a
         police officer or deputy sheriff who works
         primarily with cases involving juveniles. Many
         Texas counties use the term to denote the officer
         who performs probation services for the Juvenile
         Court.    The Texas statutes use       the terms
         'probation officer'     and   'juvenile officer'
         interchangeably. Juvenile 'police' officers --
         derive their authority from their commissions as
         peace officers. Their responsibilities and power
         are exactly the same as for any peace officer, and
         it is only by departmental policy that they are
         assigned to juvenile cases. Juvenile 'probation'
         officers -- are juvenile court workers. Their
         work usually begins at the time of referral by the
         police officer, although in many communities their
         work overlaps that of the police officer. The
         bulk of their work lies in social investigations
         and social casework with the juvenile offender and
         his family. Their authority stems from a series
         of 'bracket laws,' the first of which was enacted
         in 1919.     Prior to 1919, juvenile probation
         officers were provided for permissively. The
         Texas Juvenile Court Act of 1907 provided that a
         delinquent child could be committed to the custody
         of a probation officer or any proper person.
         Probation officers were required to be 'discreet
         persons of good moral character,' and they were to
         serve without compensation. (Footnote omitted).

The manual also states that there is little uniformity among the
provisions for juvenile boards, and that many counties have designed
programs based upon social need rather than upon legislative
authority.

     In 1981, the legislature created the Texas Juvenile Probation
Commission and stated that:

          The purposes of this chapter are to make probation
          services available throughout the state for
          juveniles, to improve the effectiveness of
          probation services, to provide alternatives to the
          commitment of juveniles by providing financial aid
          to juvenile boards for the establishment and




                                p. 1747
Honorable Jerry Shackelford - Page 4    (Mw-491)




          improvement of probation services, to establish
          uniform probation administration standards, and to
          improve communications between state and local
          entities within the juvenile justice system.
          (Emphasis added).

Section 75.001, Human Resources Code.

     Section 75.041 provides that the commission shall establish
educational, training, and certification standards for juvenile
probation officers. Section 75.042 establishes minimum standards for
juvenile probation officers. It states in pertinent part:

             Sec. 75.042. Minimum Standards

            To be eligible for appointment as a probation
         officer, a person who is not employed as a
         juvenile probation officer on September 1. 1981,
         must:

                (1)   be of good moral character;

               (2)   have acquired a ,bachelor's degree
            conferred by a college or university accredited
            by an accrediting organization recognized by
            the Coordinating Board, Texas College and
            University System;

                (3)   have either:

                      (A)   one year of graduate study in
                criminology, corrections, counseling, law,
                social work, psychology, sociology, or other
                field of instruction approved by         the
                commission; or

                       (B)  one year    of   experience in
                full-time case work, counseling, community
                or   group work    in a    social service,
                community, corrections, or juvenile agency
                that deals with offenders or disadvantaged
                persons and that is determined by the
                commission to provide the kind of experience
                needed to meet this requirement; and

                (4)  have   satisfactorily completed the
             course of preservice training or instruction,
             have passed the tests or examinations, and




                              p. 1748
Honorable Jerry Shackelford - Page 5   (Mw-491)




             possess the level of certification as       the
             commission may prescribe.

             Cd)   The commission may make rules [for waiver
          of graduate study or employment experience].

             (e)   [Requirements to     be    eligible   for
          employment supervising probation officers].

             (f) A peace officer, a prosecuting attorney,
          and any other person who is employed by or who
          reports directly to a       law enforcement or
          prosecution official may not act as a probation
          officer or be made responsible for supervision of
          a juvenile on probation. A probation officer may
          not carry a firearm in the course of his official
          duties. (Emphasis added).

     Articles 75.041 and 75.042 may be harmonized with article
5139DDD. which gives the Deaf Smith County Juvenile Board the right to
final determination of the qualifications of juvenile probation
officers. The board's discretion to make final determinations is
limited, however, by the standards enumerated in section 75.042 or
promulgated by the commission. The board's requirements as to
qualifications may not fall below those stated in article 72.042 or
promulgated pursuant to article 72.041. There is no implied repeal of
article 5139DDD since section 75.042 does not deal with the
establishment of juvenile boards and does not remove appointment
authority from the board. The legislature has given a more precise
standard for juvenile probation officers, however, and the new statute
should be read to harmonize with the old. State v. Jackson, 370
S.W.2d 797, 800 (Tex. Civ. App. - Houston 1963), aff'd 376 S.W.2d 341
(Tex. 1964).

     Section 75.042(f) supercedes Attorney General Opinion O-7332
(1946)s which held that a juvenile probation officer may carry a
firearm. In comparing section 75.042(f) to article 5142, it is
important to note that article 5142 provided only that "such juvenile
officers shall be vested with all the power and authority of police
officers or sheriffs incident to their offices." Section 75.042(f)
prohibits the employment of peace officers, but does not revoke the
power vested in juvenile probation officers, except the authority to
carry a firearm. Thus, article 5142, V.T.C.S., is repealed to the
extent that it authorized juvenile probation officers to carry a
firearm. Section 75.042(f), in establishing uniform standards as
stated in section 75.001, clearly and unambiguously states that peace
officers and any other person who reports to a law enforcement officer
may not serve as juvenile probation officers. A "peace officer"
within section 75.042(f) refers to someone employed by or reporting to




                                 p. 1749
                                                                         .


Honorable Jerry Shackelford - Page 6    (Mw-491)




a law enforcement agency. It does not refer to persons reporting to a
juvenile board.    A sheriff and his deputies are peace officers,
article 2.12 of the Code of Criminal Procedure. However, a juvenile
probation officer with the authority of a police officer or sheriff is
not a "peace officer" within section 75.042(f) because he does not
report to a law enforcement agency.

     You have informed us that the Deaf Smith "juvenile peace officer"
is a peace officer who carries a commission through the Deaf Smith
County sheriff. Since section 75.042(f) prohibits the employment of a
peace officer as a juvenile probation officer, he may not serve in the
latter capacity. It is therefore unnecessary to answer your second
question.

                              SUMMARY

             Under articles 5139DDD and 5142, V.T.C.S., as
          modified by sections 72.041 and 72.042(f) of the
          Human Resources Code, the juvenile probation
          officers employed by Deaf Smith County have the
          power and authority of police officers and
          sheriffs except that they may not carry guns.
          Since section 75.042(f) prohibits a peace officer
          from serving as a juvenile probation officer, a
          deputy sheriff may not serve in that capacity.

                                        mg
                                        Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Patricia Hinojosa
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Maury Hexamer
Patricia Hinojosa
Jim Moellinger


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