                    E   L%YITORNES           GENERAL




Honorable Charles R. Ramaay
County Attorney, Hays County
P. 0. Box 2319
San Marcos, Texas 78666
                                   Opinion No. M-393
                                   Re:   Whether the employment and
                                         designation   of adult proba-
                                         tion officers   is subject
                                         to express approval of the
                                         commissioners court, and
Dear Mr. Ramsay:                         related question.
         You have requested    the opinion    of this   office   op the
following   two questions:
            “1.    Is the employment and designation.
                   of adult probation officers  subject
                   to the express approval of the com-
                   missioners  court?
            "2 .   If the answer to question number one is
                   ‘yes’ is the advice and consent of the
                   commissioners court of each county In a
                   multi-county  district mandatory?”
        The answers to your questions involve an lnterpre-
tation of Article      42.12, Section 10, Code of Criminal
Procedure, which provides,         in part, that
        ,I. . ..the district     judge or district     judges having
          original    jurisdiction     of criminal actions in
          the county or counties,         If applicable,    are
          authorized,     wlth the advice and consent of the
          commissioners court as hereinafter           provided,
          to employ and designate th titles            and fix
          the salaries     of probation zfficers,        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. )
                              - 1945 -
                                                                         -   .




Hon. Charles    R. Ramsay, page 2 (M-393)


        The language of Artlole 42.12, Section 10, pro-
vides expressly   that the district    judge must seek the
“advice and consent of the commissioners court as herein-
after provided.”     (Emphasis added.)     However, the underlined
language Is ambiguous and misleading,        since no subsequent
prOVi8lOn   is set out in the statute for the advice and
consent of the commissioners court.        Thus, the statute
is subject to two Interpretations:        (1)    the judge must
obtain the advice and consent set forth in the statute;          or
 (2) the judge is not required to obtain consent, there
being no provision    thereinafter  provided to cover the
manner or conditions    of a consent requirement;      hence the
ambiguous language must be deemed superfluous         and yield
to the clear leglslatlve     intent expressed In the statute
when considered as a ,whole.
         Where the language of a statute is ambiguous, con-
struction   beoomes necessary.    Koy v. Schneider,    221 S.W.
880 (Tex.Sup. 1920).      “The fun&mental rule controlling      the
&ongtruction of a statute is to ascertaln      the Intention of
the Legislature    expressed therein.   That intention    should
be ascertained   from the entire act, and not from isolated
portions thereof .‘I         of Mason v. West Texas UtllitieS
       237 S W.2d 273         T    S   1931)    Th      in order to
$&mine      ihe corr&       t$&$ion      of iecti%‘lO,     the
entire statute must be considered and discussed in 11&t
of the alms and purposes of the Legislature       with respect
to the probation system In Texas.
          The purpose of the statute     is stated   in Section   1 of
Article    42.12:
          “zt Is the purpose of this Article         to place
          wholly within the State courts of appropriate
          jurlsdictlon   the responsibility     for determln-
          lng when the imposition     of sentence in
          certain cases shall be suseended, the con-
          ditions of probation,    and the supervIa=
          of probationers,    in consonance with th
          powers assigned to the judicial        brancheof
          this government by the Constitution         of Texas....
          It is the final purpose of this Article          to
          remove from existing    statutes the limltatfonsS
          other than questions of constltutlonalfty,
          that have acted as barriers       to effective    systems
          of probations    and paroles in the public interesteU
           (E3nphaeis added.7


                              - 1946 -
Hon. Charles    R. FWnSaY, Page 3 (M-393)


Section 10 of Article 42.12 further imposes the duty upon
the district judge to employ probation officers, designate
their titles and fix their salaries.
          To effectuate   the expressed purpose of the statute,
the Legislature      imposed certain powers and duties on the
judges of courts having original            jurisdiction    of criminal
actions.     The judge of the court which has jurisdiction
of the case may suspend the lmpositlon              of the sentence and
may place the defendant on probation and/or Impose a
fine commensurate with the offense committed “when It shall
appear to the satisfaction        of the court that the ends of
justice    and the best Interests        of the public as well as
the defendant will be subserved thereby..,.”               (Section 3).
The jud e must determine the terms and conditions                of the pro-
bation 7 Section 6).      The court, further,          must supervise any
person placed on probation         (Section     3), a-t      Is implicit
In the statute that probationers            be closely    supervtised
since the court is empowered to alter or modify the terms
of probation at any time during the period of probation
 (Section 6), reduce or terminate probation when the
defendant has satisfactorily         completed one-third        of the
original    probationary   period or two years of probation;
whichever is less (Section        7), and issue a warrant for the
arrest of the defendant should any of the terms of
probation be violated       (Section 8).        Moreover, only the
court in which the defendant was tried may exercise                 the
powers enumerated above unless the court has transferred
jurisdiction     to another court with the consent of such
court (Section 5).       Thus, the judge has th f ull responsi-
bllity    of seeing that the terms and condit;ons            of pro-
bation are enforced.
        Under certain conditions,    the jury may recommend
probation in the verdict.     Where such recommendation Is
made, the court must grant probation      (Section 3a) and
supervise the de-ant       during the subsequent period of
probation   (Section 3).   This provision   is inconsistent
and repugnant to that provision     in Section 10 which
ambiguously provides that the commissioners court’s
consent   to employ probation officers    is also required.
       Clearly, the intent of the Legislature   as expressed
In the body of the statute is primarily the same as the
purpose stated In the first  part of Section  1, Artlc3.e 42.12:




                               - 1947 -
Hon. Charles   R. Ramsay, Page 4 (M-393)


to Place the responslbillty    of suspending the imposition
of sentences,   determining conditions  of probation,  and
supervising   probations  In consonance with the powers
assigned to the judicial    branch by the Constitution  of
Texas.
        It would be impossible,    indeed, for the court to
discharge Its dutles and responsibilities      under the
statute without the assistance     of probation officers     or
even without a sufficient   number of probation officers,
At the direction   of the court, these officers      conduct
presentence Investigations     and submit written reports
which include "the circumstances     of the offense,    criminal
record,  social history and present condition      of the
defendant" as well as a report of physical and mental
examinations of the defendant, whenever such examinations
are practicable   (Section 4).    In addition,  they supervise
the probationers,   attempt to rehabilitate    them, and enforce
the terms and conditions   of the probation    (Section    10).
          That the court was necessarily       intended to have
probation officers       whenever required and decreed Is
abundantly clear,       for the judge can perform neither his
mandatory nor his permissive responsibilities           without them.
That the Legislature        Intended that the court should have a
sufficient     number of probation personnel to carry out its
statutory     duties is also explicit     under Section 10, which
speclfically      expresses the intent that (1) the caseload of
each probation officer        should not substantially    exceed
seventy-five      probationers;    (2) a person who handles
juvenile     probation may not be required to serve as pro-
bation officer      for adults, and vice-versa;      and (3) in
districts     where more than one probation officer       Is required,
the chief adult probation officer,         with the approval of
the court alone, "shall appoint a sufficient           number of
assistants     and other employees to carry on the professional,
clerical,     and other work of the court.
         The Legislative  intent and purpose Is plain.   The
only question remaining involves which of the two possible
interpretations    listed above gives effect to that intent
and purpose.
       Under the first  alternative,   the judge or judges
may appoint a probation officer    only with the advice and




                            -1948-
.    .




    Hon. Charles    R. Ramsay, Page 5 (M-393)


    consent of the commissioners court.            However, "probation
    officers   must be employed as district          officers."       Attorney
    General Oplnlon No. M-336 (1969).            Their jurisdiction         is
    co-extensive     with the court or courts under whose auspices
    they are appolnted;      and, although the judge or judges may
    assign a probation officer        to work in a specific          county
    or counties within the court's        jurlsdictlon,         all expenses,
    including salary, must be paid by the various counties
    comprising the district        in proportion     to the population
    of such counties.       It logically    follows     that, under this
    interpretation,     whenever a court appoints an adult proba-
    tion officer,     the approval and consent of the commissioners
    court of each and every county within the district                 must
    be obtained.1      Since a judicial     district      is sometimes
    comprised of as many as six counties           (and a majority of
    the districts     are comprised of more than one county,)the
    commissioners court of only one county, by merely dis-
    approving an appointment or appointments of probation
    officers,    could effectively     prevent necessary probation
    services    In all of the counties involved.            A conflict
    resulting    in widespread confusion would result,              leaving
    the district     court in a "standoff"       with the commlsaionera
    court and depriving the indlvldual           of his legal right to
    supervised probation when judicially           decreed.        No less
    important is the right of the public to supervised pro-
    bation of the criminal.


    1
               Another alternative    based on this reasoning is
    possible.      Since a probation officer     must be appointed as
    a district     officer  and the clause In question refers to
    the county commissioners court in the singular,           the advice
    and consent provlsion       applies only to single-county
    districts.      This argument is rejei?ted,    however, because
    the language immediately preceeding this clause refers
    to "judge or judges In the county or counties,'           indicat-
    ing that single-county       and multi-county   districts   ape
    Intended to be treated in a like manner.




                                  -1949-
Hon. Charles   R. Ramsay, Page 6 (M-393)



          Such consequence Is contrary to both the expressed
and implied Intent of the Legislature      in promulgating
this statute.      It would be Ironic,  Indeed, if the statute
which was supposed “to remove from existing        statutes
the limitations..    . . that have acted as barriers    to
effective    systems of probations and paroles....“.
(Section 1) had instead erected more formidable obstacles!
         In construing ambiguous language, the consequences
of any particular     construction     are properly taken into
conslderatlon.     Thus, the court will adopt the construction
“that avoids mischievous consequences and upholds con-
stitutional    and legal rights” and wlll “avoid a con-
struction   that will render an act or provision         arbitrary,
or discriminator $:, futile,     or purposeless,    oppressive,
or unreasonable.       It will not adopt a construction         that
would “make it impossible or Impracticable          of enforcement,
so as to enable a person to defeat or nullify          itat     will.
Moreover, the court will avoid a construction          that will
result in conflict,     confusion....”     53 Tex.Jur.2d 240-243,
Statutes,   Sec. 164.
          For all of the above reasons, the second alternative
construction     is to be preferred over the first     alternative
above discussed.       Under the second alternative,    the
advice and consent of the commissioners court Is not re-
quired.     The district     judge or judges having original
jurlsdlctlon     In the county or counties may employ pro-
bation personnel necessary to carry out the duties
required by statute,       limited only by the specifications
in Section 10 as to qualifications,         caseloads, etc.   The
effect    of this construction     Is in accordance with the
legislative     purpose and Intent providing for an effective
system of probation by enabling the judge to appoint
probation officers       whenever, in his discretion,   he
determines that they are needed to carry out the work of
the court.
        Often ” . . ..in construing a statute It frequently
happens that a word or phrase must be added to, or eliminated
from, a particular      part or section    in order to carry out
the manifest intent,      as disclosed    by the entire enactment.
Under these circumstances ,.....       repugnant, superfluous,    or
useless words and expressions        may be disregarded.”      53 Tex.
Jur.2d 201, 202, Statutes,       Sec. 138. Therefore,     the words




                            - 1950-
.   .   .




        Hon.   Charles   R. Ramsay, page 7 (M-393)


        "with the advice and consent of the commissioners court"
        must be deemed superfluous  and disregarded;    to do other-
        wise would be to thwart the legislative    intent expressed
        in the statute as a whole.
                The conclusion  reached herein is in accord wit
        decisions   reached in numerous foreign jurisdictions.    D
        These decisions    have generally  been based on the
        principle   that the court has inherent and constitutional
        power to employ necessary personnel with which to perform
        the duties required of them, to fix a reasonable
        salary for such personnel,     and to require appropriation
        of funds for such payment.3
         2      See for example, Knox County Council V. McCormick,
         217 Ind. 493 29 N.R 2d 405 (lm*Noble              County Council
         v. State,  234  Ind.   lj2,   125 N.E.2da?09    (1955)   St t
         Johnson,  224  Ind.  540,    69 N.R.2d 549   (1946);   &?ii++%ate,
         204.      390, 184 N.E. 535 (1933); In Re Appointment of
         the Clerk of the Court of Appeals, 29~7 S W 2d 764 (KY. 1957
         Smith v. Miller,    384 P 2d '(jo (Colo. 1965): Schneider v.
         Cunninaham,ont.           li5, 101 P. 962 (1909)- Ra
        'County of Saline,    171    Neb. 538, 106 N.W.2d 667776).
         State v. Pf iff        163 Ohio St. 149, 126 N.E.2d 57 (1455);
         In Re Janit& o?&preme          Court, 35 Wlsc 410 (1874);
         h, Am.J    2d 440 - 441 , Courts N 79; 21 C1J.S. 28,
         Courts kYi4.
        3       There are no cases in Texas which discuss precisely
        this point.    However, in Wichita County v. Griffin,
        284 S.W.2d 253 (Tex.Civ.App.    1955, error ref. n.r.e.)  the
        court was allowed to set the salary of his court reporter
        even though such action was contested by the commissioners
        court on the nrounds that this matter resided within its
        discretion.    in Hidalgo County Water Improvement District
        No. Two v. Cameron County Water Control and Improvement
        Dist. No. Five, 250 s W 2d 941 (Tex.Civ.App.     1952 no
        writ),   the judge was ;pield  in his appointment of's water
        master, although the powers given to the water master
        were more extensive   than those given to the master in
        chancery (Rule 171, T.R.C.P.)    and there was no other
        statute authorizing   such appointment.




                                  -1951-
                                                          .




Ron. Charles   R. Ramaay, page 8 (M-393)


         In view of the foregoing,  the answer to your
first  question must be In the negative.     Since the
problem posed in your second question is based on an
affirmative    answer to the first question,  no answer
to It is required.
                        SUMMARY
       It being the intent of Article      42.12,
       Code of Criminal Procedure, to create
       district-wide   probation services,     the
       employment and designation    of adult
       probation officers    Is not subject to
       the approval of the county commissioners
       court.




                                         era1 of Texas

Prepared by Sarah E. Phillips
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Rob Lattlmore
Houghton Brownlee
James S. Swearingen
Rob Flowers
W. V. GEPPERT
Staff Legal Assistant
RAWTRCRNE PHILLIPS
Executive Assistant




                           -1952-
