                                  ORNEY           GENERAL
                               OFTEX~~~


                                   July    31,   1957


Honorable   A. W. Walker                   opinion   NO.   w-203
County Attorney
Spur Security   Bank Building             Rer    Construction   of Section
Spur, Texas                                      10 of the Adult Probation
                                                 and Parole Law of 1957,
                                                 Acts 55th Le islature,
Dear Sir:                                        1957, ch. 22 ifi, p. 466.
              You have presented          for our determination   the follow-
ing   question,   which we quote          from your letter   of July 1, 1957:

              “If. a District     Judge does not appoint a
       probation     officer   under the provisions        of Sec-
       tion 10 of the iidult Probation            and Parole Law
       of 1957, may he appoint          any of the peace offi-
       cers or other persons designated             in Section   31
       of the Act as a probation          officer     in any cases
       arising~after       the effective     date of the Adult
       Probation     and Parole Law of 19571

              “To make my question             clear,    may I direct
       your attention         to the provisions          of Section
       10 of the Act in question               which provide       for the
       qualifications         which a person must possess               in
       order to be eligible            for appoints&exit as a pro-
       bation    officer.        You will      note,    of course,      that
       the section        in question       in part provides         that
        ‘persons     who are serving          in such capacit,ies         at
       the time of the passage of this Act and who are
       not otherwise         disqualffied       by Section      31 of this
       tLc!t shall      be eligible       for appointments         as pro-
       bation    officers;’        and you will       further    note
       that Section         31 of the Act provides,           in substance,
       that no peace officer             or other person engaged in
       the prosecution          of criminal       cases (naming the va-
       rious    officers)       ‘shall    act as a parole         officer
       or be responsible           for the supervision          of persons
       on parole. * Under the provisions                  of the Adult
       Probation      and Parole Law of 1947 (Article-78lb,
       CCP) the District           Judge of our district           has al-
       ways appointed         the Sheriff        of the county where
       the case is tried as the probation                  officer      in
       cases where probation             has been granted to the
Honorable   A. W. Walker,       page 2     (WW-203)



     defendant      and such Sheriffs          are now serving
     as probation        officers      in a great many cases
     and will     be serving       in such capacity         on the
     effective      date of the Adult Probation              and
     Parole Law of 1957. It has been suggested
     to me that by the terms and provisions                    of
     Sections     10 and 31 of the new Adult Proba-
     tion and Parole Law of 1957 our Districts
     Judge will       be forced      to discontinue       the
     practice     of appointing         Sheriffs     or any of
     the other persons           designated      in Section     31
     as probation        officers      after    August 22nd, 1957,
     the effective        date of the new law, regardless
     of whether or not he appoints                 a probation     of-
     ficer    under the provisions            of Section     10 of
     the Act.       If this construction            of the law is
     correct,     as a practical          matter it will      force
     a District       Judge, with the advice and con-
     sent of the Commissioners               Court, to appoint a
     probation      officer     under the provisions           of
     Section    10 of the Act because no private                  citi-
     zen is going to accept appointment                  as a pro-
     bation    officer       in any case where he is to re-
     ceive no compensation            for his services.           On
     the other hand, it has been suggested                   to me
     that the limitation           contained      in the words
     ‘who are not otherwise             disqualified      by Sec-
     tion 31 of this Act I applies               only in the event
     the District        Judge ,-with      the advice and con-
     sent of the Commissioners               Court,   appoints     a
     probation      officer     under the provisions           of Sec-
     tion 10 of the law and that if the District
     Judge does not exercise              the authority      granted
     him by the law and does not appoint                  a paid
     probation      officer,      he may continue        the same
     practice     followed      by him under the Adult Pro-
     bation    and Parole Law of 1947 above.set                 out.“’

           Section 10 of.~the Adult Probation   and Parole Law
of 1957, (Acts 55th Legislature,   1957, ch. 226, p. 466). on
which your.problem  is based, reads as follows:

            *Sec. 10.   For the purpose of providing
     adequate probation     services,      the judge or
     judges having original       jurisdiction     of crimi-
     nal actions    in the county or counties,        if appli-
     cable,   are authorized,    with the advice      and
     consent    of the Commissioners       Court as hereinaf-
     ter provided,    to employ and designate        the titles
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     Honorable       A. W. Walker,      page   3    (w-203)


              and fix the salaries          of probation      officers,      and
              such administrative,          supervisory,      stenographic,
              clerical,     and other personnel          as may be neces-
              sary to conduct pre-sentence             investigations,         su-
              pervise     and rehabilitate        probationers,       and en-
              force     the terms and conditions          of probation.
              Only those persons who have successfully                  com-
              pleted     education     in an accredited       college     or
              university      and two years full        time paid employ-
              ment in responsible          probation     or correctional
              work with juveniles          or adults,     social    welfare
              work, teaching        or personnel      work; or persons who
              are licensed       attorneys     with experience        in crimi-
              nal law; or persons who are serving                in such capa-
              cities     at the time of the passage of this               Act
              md who are not otherwise             dis~ified         bv Sectiog
              ?l of this Act, shall be eligible               for appointments
              as probation       officers;     provided    that additional
              experience      in any of the above work categories                may
              be substituted        year for year for the required              col-
              lege education,         with a maximum substitution            of
              two years.”

                   This section       prescribes    the qualifications         for pro-
     bation   officers,     and constitutes       the only reference         to Section
     31 of the Act in the section             of the Act on FIProbationtt.         Sec-
     tion 31 prohibits        certain     named law enforcement        officers    and
     prosecuting      attorneys     from serving     as parole    officers.

                 The solution    to the question    which you pose depends
     on the applicability      of the clause   I’. . . and who are not oth-
     erwise disqualified      by Section  31 of the Act, . . .‘I.     Does
     G&sAE;rision       apply to all probation     officers appointed   under

                    We think that the above quoted provision           is to be
         applied  to all persons  qualifying   as probation     officers.      It
         is our opinion   that it was the intention    of the Legislature
         that the peace officers   and prosecuting    attorneys      listed  in
         Section  31 should not serve in such positions       and at the same
         time serve as a probation    officer.

                   We reach the above conclusions          because the Legisla-
     ture has imposed the prohibition            of Section    31 on persons
     serving   as parole     officers     under the,,Act,   and it appears to
     us it attempted,      by use of the above quoted clause,           to do so
     as to probation      officers     also.   Section    6 of Article    10, Ver-
     non’s   Civil   Statutes,     provides   that in interpreting       statutes,
     the ~intention    of the Legislature        is to be sought.      To hold
     otherwise     than we have in this instance          would frustrate     what
?Ionorable   A. W. Walker,     page   4   (Wi-203)



we believe   to be the intention    of the Legislature,           and would
result   in problems and injustices    which could not           have been
desired   by the Legislature.

            Therefore,   it is our opinion    that persons holding
the offices   enumerated in Section    31 of the Act may not at
the same time hold the office     of probation     officer under the
Adult Probation     and Parole Law of 1957. (Acts 55th Leg. 195’7,
ch. 226, p. 466). See Attorney      General’s     Opinion ~~-183.

            You state that it has been the policy             of the judge
in your judicial      district    to appoint the sheriff       of the county
in which the defendant         is sentenced,     as probation   officer,    un-
der the terms of the 1947 Act.            As for a continuation       of the
same practice    followed      by the court under the Adult Probation
and Parole Law of 1947, we would point out that Section                  35 of
the Act expressly      repeals    Article    781b, Vernon’s    Code of Crimi-
nal Procedure,     known as the Adult Probation          and Parole Law of
1947.
             As of August 22, 1957, the effective             date of this
Act, the Adult Probation          and Parole Law of 1947 will be re-
pealed and will no longer          constitute     authority   for the appoint-
ment of probation      officers.       Probation    officers    serving    after
&gust    22, 1957 will be subject          only to the operation        of the
Adult Probation     and Parole Law of 1957, and must be appointed
under it.     Therefore,     if a district      judge does not choose to
appoint a probation       officer    under the provisions        of Section
10, of the Adult Probation          and Parole Law of 1957, no other
authority   exists   for the appointment          of a probation     officer.

                                       gJMMARY

             Persons holding      the offices    named in Section     31
      of the Adult Probation         and Parole Law of 1957, may
      not at the same time hold the office           of probation     of-
      ficer   under such act.        Section   35, of the Adult Pro-
      bation    and Parole Law of 1957, repealed         the Adult
      Probation    and Parole Law of 1947, and the latter            Act
      will   not constitute     a basis for the appointment        of
      probation    officers    after the effective      date of the
      Adult Probation       and Parole Law of 1957.        titer  that
      date all probation       officers    must be- appointed    under
      the 1957 Act.
                                              Yours very truly,
                                             WILL WILSON



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         Honorable        A. W. Walker,   page   5   (WW-203)



         APPROVED8

         OPINION COMMITTEE

         H. Grady Chandler,         Chairman
         J. C. Davis,   Jr.
         Grundy -Williams
         Fred Werkenthin

         REVIEWEDFOR THE ATTORNEYGENERAL

         BY:       Gee.   P. Blackburn
