                 THEA'ITORSEY                             GENERAL
                           OFTEXAS




                                            June 25, 1974


The Honorable Tom Bevill                                    Opinion No.       H-   334
District Attorney
Stephens County Courthouse                                  Re: Authority of District Court
Room 206                                                    to grant and revoke probation
Breckenridge.    Texas 76024                                absent appointment of “probation
                                                            officer. ”

Dear Mr.      Betill:

         You have requested our opinion on whether a “probation clerk”
who does not meet the mimimum qualifications      for appointment as “proba-
tion officer” as provided in Section 10 of Article 42.12, V. C. C. P., may
nevertheless  perform some of the duties of probation officer in the 90th
District Court of Stephena County.

        You also ask whether the district court may compal probationers       to
pay the statutory probation service fee, order probationers    to report monthly
to the probation “clerk,” and revoke probation for violation of such conditions
of probation if the district court has not appointed a fully qualified probation
officer to assist the court.

           Article      42.12.   V. C. C. P.,    the Adult Probation     and Parole      Law,

~defines    a “probation         officer”   in Section Z(d) ,as a .pers,on,

                     . . . duly appointed by one or more courts of record
                     having original criminal jurisdiction, to supervise
                     defendants placed on probation; or a person designated
                     by.such courts for such duties on a part-time  basis; . , .




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The Honorable    Tom Bevill     page 2    (H-334)




        Section 10 sets minimum qualifications for persons who are eligible
to be selected by appointment.  The relevant language in Section 10 is:

                 . . . Only those persons who have successfully
                 completed education in an accredited college or
                 university and two years full time paid employment
                 in responsible probation or correctional   work with
                 juveniles or adults, social welfare work, teaching
                 or personnel work; or persons who are licenoed
                 attorneys with experience in criminal law; . . .
                 shall be eligible for appointments as probation
                 officers . . . . Provided,   however, that in a county,
                 having a population of less than 50,000, according to
                 the last preceding Federal census, any perron having
                 completed at least two years education in anaccredited
                .colfege or university will be eligible for appointment.
                 [emphasis added]

         It is our opinion that some tasks normally performed by a probation
officer may be performed by other probation personnel at the direction of
the district judge.    Section 10 begins with the language:

                  For the-purpose of providing adequate probation
                  services,    the district judge or district judges
                .having original jurisdiction     of criminal actions
                  in the county or counties, if applicable,     are
                  authorized,    with the advice and consent of the
                  commissioners       court as hereinafter provided,    to
                  employ and designate the titles and fix the salaries
                  of probation officers,    and such administrative.
                  supervisory,     stenographic,   clerical,  and other
                  personnel as may be necessary         to conduct presentence
                  investigations,    supervise and rehabilitate probationers,
                  and enforce the terms and conditions of probation.
                  [emphasis added]




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    The Honorable      Tom Bevill   page 3   (H- 334)               .a :   *’




             Section 10 implies that “other personnel”    may be employed to
    assist the probation officer in preparing pre-sentence     reports, conducting
    investigations,  supervising.probationers    and enforcing the terms and
    conditions of probation.    And if other probation personnel may perform these
    enumerated duties under the supervision of a probation officer appointed by
    the court, it is reasonable to infer they may perform these tasks directly
    under the supervision of the court whether or not a probation officer has
    also been appointed.

                  second question is whether a court
                Your                                  may grant probation    require
    the payment of a statutory probation service fee, and revoke    probation for
    violation of probationary  terms and conditions, if it has not appointed or
    designated a “probation officer” to assist the court.

             Although no case has directly addressed your question, several
    decisions by the Texas Court of Criminal Appeals indicate that a district
    court’s  power to grant probation, fix or modify conditions of probation,
    or revoke probation is not limited by the court’s  failure to use the services
    of a probation officer.  Valdez v. State, 491 S. W. 2d 415 (Tex. Crim.      ~1973);
    Marr v. State, 487 S. W. 2d 93 (Tex. Crim. 1972). The cases further indicate
    that a court’s power is not limited by failure of a probation officer to properly
    perform his duties. Hilts v. State, 476 S. W. 2d 283 (Tex. Crim. 1972).
    Mullins v. State, 464 S. W. 2d 669 (Tex. Crim. 1971).

             Whether ~adefendant is entitled to probation,    and, ii so, upon what
    conditions,  are matters  solely for the trial ,cour.t’s discretion.  Martin v.
    State,   452 S. W. 2d 481 (Tex. Grim. 1970).

             In answer to your question it is our opinion that the 90th District
    Court of Stephens County may order payment of the statutory probation
    service fee (Section 6a, Art. 42.12, V. C. C. P.); order probationers to
    report monthly to a probation “clerk”;    and revoke  probated sentences of
    probationers   who violate terms of their probation whether or not a probation
    officer is employed in Stephens County.




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The Honorable   Tom Bevill    page 4    (H-334)




                                    SUMMARY

                    A probation “clerk” may perform some of the
                duties of a probation officer directly under the
                supervisien of the court. A district court  may
                exercise its probationary powers under Art.    42.12,
                V. C. C, P., whether or not It har employed a.
                “probation officer” to aarist the court.




                                                  bdHN L.  HILL
                                                  Attorney General of;Texas

APP    OVED:
   A




DAVID M. KENDALL,        Chairman




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