                          A       OWNER             GENERAL
                                          E,XAS



                               February   24, 1950



Hon. John H. Winter6
Executive  Secretary
State Youth Development         Council
Austin, Texas                                 Opinion   No. V-101    3

                                              Re:    Authority of the State Youth
                                                     Development   Council in re-
                                                     spact to Treatment   and Dis -
                                                     po6ition of Delinquent Chil-
                                                     dren.

Dear    Sir:

           You have raqueskd    m epiahn m question~s invoiving the
conetruction    of Hou6e Bili 705, Acts 51st Leg., R.S. 1949, ch. 538,
p. 988. This Act, codified 66 Artich     3143c, V. C. S.. creates a
State Youth &wekQ#tmant Council and dadknes it6 powers, dutiets,
and function6 in respect to juv6nif6 d6lSnquenoy.    The Act. among
other things, gives to the Ceuncik aI1 rights, powers, and dutirs for
the care of delinquent children in certain State Training Schools
formerly    held by the State Board of Control.

          The questions       pranentcd   by your requkst   sue,   in substance,
as follows :

            (1) What is the authority of the State Youth Dewlop-
       ment Council in regard to determinat.ion of treatment and
       disposition of delinquent children committed   to the Council
       by Juvenile Court6 after the effective date of Article  5143~.
       V.C.S. 7

            (2) What     is the authority of the State Youth Develop-
       ment Council     in regard to determination    of treatment and
       disposition of    delinquent children committed by Juvenile
       Courts to the    Gatesville,  Gainesville,  and Brady State
Hon. John H. Winters,     Page   2 (V-1013)



     Training Schools    prior   to the effective   date of Article
     5143c. v. c. S.?

          Your questions arise from a reading of the Youth Develop-
ment Council Act together with certain portions of Article 2338-l)
V. C. S., (Acts 48th Leg., 1943, ch. 204, p. 313), which defines the
powers, duties, and functions of juvenile courts.   Section 5 of Arti-
cle 2338-1,  in part, provides:

          “When jurisdiction   shall have been obtained by the
    court in the case of any child, such child shall continue
    under the jurisdiction   of the court until he becomes
    twenty-one  (21) years of age, unless discharged    prior
    thereto . .  .”

    Section   14 of Article   2338-l   reads   in part as follows:

          “An order of commitment    made by the court in the
    case of a child shall be subject to modification or, revo-
    cation frorh tim&:to time. ”

           Thus Article 2336-1,   V. C. S., gives to the juvenile court
continuing jurisdiction   over a child adjudged delinquent and em-
powers the juvenile court to modify or revoke any order made by
it in respect to the child.   There are doubtlessly   many children
now in State training schools who were committed thereto when
Article 2338-l   was the only statute applicable to the subject    of
disbosition  of delinquent children in State training schools.

         However,    the 51st Legislature enacted the Youth Develop-
ment Council Act,    Article 5143c, V. C. S., portions of which are
quoted below:

          “Sec. 12. When any child is adjudged delinquent
    under provision of Section 13 of Chapter 204 of the Gen-
    eral Laws of the Regular Session of the Forty-eighth
    Legislature,    1943 (Sec. 13. Article 2338-l. of Vernon’s
    1948 Statutes), and the Court does not release such child
    unconditionally,    or place him on probation or in a suito-
    ble public or private institution or agency other than a
I   .




        Hen. John 2% Winters,   Page 3 (V-1013)


            State Training School, the Court shall commit him to
            the Council, but msy suspend the execution of the order
            of such commitment.”

                “Sec. 18. When a child has been committed to the
            Council, it may:

                 “(a) Permit him his liberty under eupervision and
            upon such conditions as it beDoves conducive to accaptn-
            ble behavior; or

                 “(b) Order his confinement under such conditions
            81 it believes beet designed fmr his welfare and the in-
            terests of the pubk; or

                 “(c) Order reconfinement or renewed release     as
            often a8 conditions indicate to be desirable; or

                 “(d) Revoke or modify any order of the Council rf-
            fecting a child, except an order of final diocharge, as
            often le conditions indic&e to be derirable; or

                 “(c) Diecharge him fropn coatrol when it is sotir-
            ficd that snch discharge will best serve his welfare and
            the protection of the public,”

                   Sectionr 1 snd 44 of Ariiek 514%~ dochre in substance
        that the purpose of the Act and Yc faactioa of the Council is the co-
        ordination and improvement of faciU4ee for UC prevention and re-
        habilitation of juvenile delinquency,

                  In view of the aforementioned sections of the Youth Develop-
        ment Council Act, we believe that it w&s the intention of the legisla-
        ture to give, in so far as it lawfully CM, to me Youth Development
        Council exclurive authority, as outlined ia Section 18 of the Act, to
        determine treatment and disposition of delinquent children and that
        Article 2330-l is amended by implication to the extent hereinafter
        indicated.

                Having concluded that the legislature intended to vest in
        the Council as much authority as possible in respect to the powers
Hon.   John W. Winters,   Page   4 (U-1013)



and functions enumerated   in Section 18 of the Youth Development
Council Act, we will consider your first question relating to the
authority of the Council over children committed    to the Youth De-
velopment Council after the passage of the Youth Development
Council Act.   The problem is whether t.he Legislature    may lawful-
ly vest in the Council the power in respect to this group of chil-
dren to make the determinations     enumerated in Section 18, includ-
ing the power to grant final discharge   from State control.

           It has been suggested that such a stytute violates the con-
stttutional principple of separation   of powers.     The validity of
ct&ut.os authorizing    administrative   boards to grant parole and to
transfer prisoners    from one place of confinement      to another has
been sustained in numerous jurisdictions       despite assertions   that
such statutes are repugnant to the constitutional      principle of sepa-
ration of powers.

          Although proceedings   involving juvenile delinquents in
this State are civil rather than criminal  in nature, the power to
release under supervision    granted to the Council by the Act is the
same type of fuhction as the power of parole.      In Pennsylvania ex
rel Banks v. Cain, 28 Atl. 2d 897 (Pa. Sup. 1942), the Pennsylvania
Supreme Court upheld a statute authorizing parole by the Board
of Pardons and Paroles    where the prisoner was serving an inde-
terminate   sentence.  The Court said:

                     The granting of parole and the supervision
            ‘L




       of parolees  are purely administrative functions,   and ac-
       cordingly may be entrusted by the Legislature     to non-
       judicial agencies  ”




1.     Article II, Constitition   of Texas provides:    ‘“The powers of the
       Government    of the State of Texas shall be divided into three
       distinct departments,    each of which shall be confided to a
       separate body of magestry,      to wit:‘l!hose which are Legislative
       to one; those which are Executive to another, and those which
       are Judicial to another; and no person, or collection        of per-
       sons, being of one of these departments,       shall exercise   any
       power properly attached to either of the others, except in
       the instances herein expressly      permittedI”
.   ,




                 bikewisa,  $t has b44tr held in o&r fwip&l,etinn,s that
        there i$ no iJr&ngemen% ef the function$ of the juaiciary where
        a St&4 confers p6mets upon ad e&iinEqsfrative body to establish
        a sysitzm   of parole   and also 40 garnt an absalute   di,scharge   to a




        m 143 A. L. 3%. 19%.   Accord.   33attqu v. #oard of Control,    146
        Tes. 160, 204 S. W+ 2d 390 (194~olding       that the supe’rintendent
        of a .$a& hospital for the insane has authority to dismiss      a pat-
        ient W&I .&as been commi~d     thereto upon a charge of. lunacy
        q@ &et e*cb p&+&s+. cannot #gain be csms&tfed        to the asylum
        u&$1 he has again bee& tried in aaot@es Puaac) proceeding        and
        adjudged insane and in need of r,estra’int.
Non.    John Ii. Winters,   Page   6 (V-1013)



discharge    from State control.2

          Your second question relates to the authority of the
Council in respect to children presently   confined in the Gaines-
ville, Gatesville, and Brady State Training Schools as a result
of a commitment    thereto before the Youth Development    Council
Act.


            Section   29 of the Act reads   in part as follows:

            “The Council may release under supervision     at any
       time, and may place children in its custody in their us-
       ual homes or in any situation or family that it has ap-
       proved I . . .I’

Custody of delinquent children presently    committed  to one of the
State Training Schools has been given to the Council by Section 8
of the Act.  We believe that Sections 8 and 29 are sufficient legis-
lative authority for the Council to release under supervision     chil-
dren committed    to one of the three schools prior to the effective
date of the Act.

          As heretofore   observed,   release under supervision   or
parole is an administrative    rather than a judicial function, and
statutes authorizing   administrative   bodies to grant parole are not
repugnant to the separation     of powers principle.   Neither is it an
infringement  upon judicial power or nn interference with a judicial
order for the Council to release under supervision      children in its




2.     In connection with the grant of final and complete discharge
       from State control,    attention is called to Saction 17(d), provid-
       ing that: “‘Failure of the Council to examine a child committed
       to it, or to re-examine him within one (1) year of a previous
       examination,    shall not of itself entitle the ch,ild to dk&arpe
       from the control of the Council, but shall entitle hin to petition
       the committing    Court for an order of discharge,      and the Court
       shall discharge    him unless the Council upon due notice satis-
       fies the Court of the necessity     for further control,”    and to
       Section 33, providing:     ““Every child committed    t.o the Council
       as delinquent, if not already discharged,      shall be discharged
       or referred   back to the Court when he reaches his twenty-
       first birthday. *’
.   .




        Hon. JOh4 H. Winters,    Page   7 (V-1013)



        custody who were committ.ed to State Training Schools prior to
        the enactment of the Youth Development      Council Act.   This is true
        because t$ie release under supervision    does not interfere with the
        order of commitment.     Reltas,e under supervision   relates to the
        manner of executing the sentence and not to the duratiajn of &he.
        sentence.  &l this conne,ction, the court, in Pennyslvania   ex rel
        B+nks v. ,&a,    supr8, said:

                   ‘“Thr ~8awZefst of the power of parole be’ing but an
             adminiserr&+e     fun&don which does not impinge upon
             the judicial power of rmrrtemring the accused in conformi-
             ty with thie I*w, it folfaws that the present act may consti-
             tutionally be applied to casts where scntemcts were
             goosed before ,its effective ,date. The sentence is in no
             wise interfortd    with, especially    since the act provides
             that a par&e cas&not be granted until tht expiration of
             the minimum, @lMn prss+r&ed          by the court.   The pa-
             rolee is not dlPaha:rged, but merely serves the rema,inder
             of his sefitenee by having his liberty restrained in a manh-
             er analog,ous to that employed in the ‘trusty’ or ‘honor’
             system of prison discipline.”       (Emphasis   added)

                   Although it is not an Interference   with a judkisl   order
        for the Council to release under supervision       children committed
        to a State Training School prior to the effective date of the Act,
        it would, however, be an unlawful interference       with a judicial
        order for the Council to attempt to discharge       from all State con-
        trol any of the children who were committed prior to the Act. These
        children were committed       pursuant to Article 2338-l.   V. C. S., which
        expressly    gave ‘TVthe juvenile court continuing jurisdiction.      Conse-
        quently, the judici~al orders committing     these children either ex-
        pressly   or impliedqy were subject to madificatlon      or rev,ocation at
        the discretion   6f the committing courts. We do not believe that
        the Legislature    in enacting the Youth Development      Council Act
        attempted to give to the Counc,il authority to modify or revoke any
        previously    made order of a juvenile court and to thus infringe upon
        the Court’s judicial power.

                   You, are therefore    advtsed in answer to your second
        question that the Council has authority to determine     treatment and
        disposition   of children in its custody as a result of commitments
        to State Training Schools before the Act, but this authority does
Hon. John H. Winters,     Page   8 (V-1013)



not include   the power   to grant final discharge     from   State control.

          It is to be noted that many sections of the Act use the
phrase “committed      to the Council”   in stating the powers and duties
of the Council whereas Section 29 supra, does not. We do not mean
to infer, in relying on Section 29 for the Council’s       authority over
children committed prior to the Act, that the Legislature          created
two distinct classes    of delinquent children and that a different sys-
tem of treatment and disposition      would be given each class accord-
ing to the date of the child’s commitment.        On the contrary,    we be-
lieve it was the intention of the Legislature      that all delinquent
children committed to the State, both past and future, would be ac-
corded the same system of treatment while undergoing rehabilita-
tion in the State’s custody.     Such would have to be done to comply
with the purpose of the Act as expressed       in Section 1.

           “The purpose of this Act is to develop our State’s
     most precious      resource,   its children and youth, by creat-
     ing a Youth Development        Council, first, to co-ordinate
     the State’s departments      and facilities     in helping all com-
     munities,    develop and strengthen all child service,         pre-
     venting delinquency and other types of social maladjust-
     ment by developing in all children the spiritual,           mental,
     and physical resources       necessary     for complete citizen-
     ship responsibility     and participation;     and, secondly,   to
     administer    the State’s correctional       facilities  by provi,d-
     ing a program of constructive training aimed at the re-
     habilitation   and successful     re-establishment      in society
     of delinquent children”        (Emphasis      added)

           These are our general impressions       given without the bane-
fit of any specific fact situation.     Doubtless there will be many sit-
uations which will arise and which will be determined        Ianthe light
of the circumstances    ~then existing.

                               SUMMARY

          fhe  Youth Development    Council has exclusive   auth-
     ority to determine treatment and disposition,     as outlined
     in Section 18 of the Youth Development     Council Act, of
     delinquent. children committed   to it by Juvenile Courts
     after the effective date of the Act, including authority to
        /   .




                Hon. John 3% Winters,   Page   9 (V-1013)



                    grant final and complete    discharge    from   State control
                    (Art. 5143c, V. C. S.)

                          The Council has authority to determine      treatment
                    and disposition,   as specified in Seetlon 29 of the Act,
                    of delinquent children committed      to the Catesville,
                    Gainesville,   and Brady State Training Schools prior to
                    the effective date of the Act, except the authority to
                      cant final and cnmplete discharge     from State control.
                    f At%  9f43c,  V. C. S., and  Art. 233861,  V, C. 8.)

                                                            Yours   trery truly,

                                                            PRICE DANIEL
                APPROVED                                    Attorney General




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