      I




                                             The Attorney          General of Texas
                                                                April 11, 1984
    JIM MATTOX
    Attorney General



    Supreme      Court Building             Honorable Jim Bob Darnell             opinion No.   JM-144
    P. 0. Box 12548                         Criminal District Attorney
    Austin,    TX. 79711. 2548                                                    Re:   Whether a rule of the
                                            2nd Floor
    5121475-2501
                                            Lubbock County Courthouse             Texas    Juvenile     Probation
    Telex    9101874-1367
    Telecopier     512/475-0266             P. 0. Box 10536                       Commission violates the Texas
                                            Lubbock, Texas   79408                Constitution or statutes
    714 Jackson,    Suite 700
                                            Dear Mr. Darnell:
    Dallas,   TX. 75202-4506
    2141742-8944
                                                 You have asked whether the

    4824 Alberta       Ave., Suite    160            Texas Juvenile Probation Commission standard
    El Paso, TX.       79905.2793                    section   341.4(d),   which    requires  juvenile
    9151533.3484
                                                     probation officers to be paid not less than adult
r
                                                     probation officers in the county or district,
    1001 Texas. Suite 700                            violates   either    the    Texas   statutes      or
    Houston,   TX. 77002-3111                        constitution.
    7131223-5986
                                                 Texas Juvenile Probation Commission Standard section 341.4(d)
    806 Broadway,        Suite 312
                                            provides, in pertinent part, that
    Lubbock,     TX.    79401-3479
    8061747-5238                                      [the] juvenile board shall ensure that all salary
                                                      levels of juvenile probation department personnel
                                                      are reasonable and comparable with      prevailing
    4309 N. Tenth.     Suite B
    McAllen,     TX. 78501.16fl5                      salaries of the public and private sectors, in the
    5121682-4547                                      respective county or district, but in no case will
                                                      the salary scale for juvenile probation officers
                                                      be less than the salary scale for adult probation
    200 Main Plaza, Suite 400
    San Antonio,  TX. 78205.2797
                                                      officers.
    5121225-4191
                                                 In 1981, the Texas Legislature enacted chapter 75 of the Texas
                                            Human Resources Code and article 5138d. V.T.C.S., in the same bill to
    An Equal       Opportunity/             improve the juvenile justice system by improving the effectiveness of
    Affirmative      Action     Employer
                                            probation services, providing financial aid from the state to juvenile
                                            boards for probation services, and establishing uniform probation
                                            administration standards. -See Texas Human Resources Code 975.001.

                                                 The pertinent part of article 5138d reads as follows:

                                                         (b) In all    Texas counties, the juvenile
r                                                     board . . . may, with the advice and consent of




                                                                    p. 619
Honorable Jim Bob Darnell - Page 2   (JM-144)




          the commissioners court, employ and designate the
          titles and     fix the    salaries of probation
          officers . . .    according   to   the   standards
          established by the Texas Juvenile Probation
          Commission and the needs of the local jurisdiction
          as determined by the juvenile board . . . . This
          determination, if inconsistent with salaries
          established by laws governing the creation of a
          juvenile probation department for a particular
          jurisdiction, supersedes and controls over those
          statutory provisions.

     Prior to 1981, several statutes provided that compensation of
juvenile probation officers would be fixed by certain juvenile boards
"subject to the approval of the commissioners court." Such statutes
were interpreted as authorization to the commissioners court to reject
the compensation set by the juvenile board and to refuse necessary
approval of a budget submitted by the juvenile board for the
compensation of juvenile probation officers.      See V.T.C.S. arts.
5142b, 5142c, 5142d; Attorney General Opinion MW-15 (1979). The
enactment of article 5138d in 1981 impliedly repealed those prior
statutes to the extent of conflict. If a conflict exists between two
                                                                         ?
Etatutes, the earlier enactment is repealed by the later. See Stevens
v. State, 159 S.W. 505, 507 (Tex. Grim. App. 1913). Also, inAttorney
General Opinion MW-587 (1982). this office determined that article
5138d expressly overrules salary determinations made under those prior
statutes, and we agree with that conclusion.

     Section 75.041 of the Texas Human Resources Code directs the
Texas Juvenile Probation Cormnissionto promulgate reasonable rules for
juvenile boards establishi~ng minimum standards for personnel,
staffing, case loads, programs, facilities, record keeping, equipment,
and other aspects of the operation of a juvenile board necessary for
the provision of adequate and effective probation services.

     The provision in standard section 341.4(d) requiring juvenile
probation officers to be paid not less than adult probation officers
is such a "standard established by the Texas Juvenile Probation
Commission."   In Attorney General Opinion MW-587, this office
concluded that the language in article 5138d confers on juvenile
boards the same authority to fix the salaries of juvenile probation
personnel that the adult probation statute (article 42.12, section 10.
Code Criminal Procedure), confers on district judges regarding the
salaries of adult probation personnel.         In other words, the
controlling statute, article 5138d. provides for consultation with the
commissioners court by the juvenile board in fixing the salaries of
juvenile probation officers, but it does not authorize the
conrmissionerscourt to reject the compensation set by the juvenile       ?
                                                                             ,
board in accordance with standards established by the Texas Juvenile




                                p. 620
.   .


        Honorable Jim Bob Dame11   - Page 3 (JM-144)




        Probation Commission, unless there is clear abuse of discretion. See
        Commissioners Court of Hays County v. District Judge, 506 S.W.2d 630
        (Tex. Civ. App. - Austin 1974, writ ref'd n.r.e.); Commissioners Court
        of Lubbock County v. Martin, 471 S.W.Zd 100 (Tex. Civ. App. - Amarillo
        1971, writ ref'd n.r.e.).      Accordingly, we conclude that Texas
        Juvenile Probation Comission Standard, section 341.4(d) is authorized
        by Texas statutes.

             It is well established that a county has only those powers or
        duties which specifically are conferred on it by the constitution and
        statutes of this state. See Canales v. Laughlin, 214 S.W.2d 451, 453
        (Tex. 1948); Renfro v. Shr?hire,  566 S.W.Zd 688, 690 (Tex. Civ. App.
        - Eastland 1978, writ ref'd n.r.e.); Harrison County v. City of
        Marshall, 253 S.W.Zd 67, 69 (Tex. Civ. App. - Fort Worth 1952, writ
        ref'd).

             Article V, section 18 of the Texas Constitution vests the
        commissioners court with "such powers and jurisdiction over all county
        business, as is conferred by this Constitution and the laws of the
        State, or as may be hereafter prescribed." Neither article V, section
        18,  nor any other provision of the constitution, precludes the
        leeislature from comittinn anv countv business to some other anencv.
        Gairett v. Commissioners tour; of Limes,tone County, 230 S.W.-1010,
        1016 (Tex. Civ. App. - Dallas 1921), ref d on other grounds, 236 S.W.
        970. Article XVI, section 61 of the Texas Constitution, which relates
        to compensation for certain district and county officers on a salary
        basis, as distinguished from a fee basis, is not applicable to the
        constitutionality of standard 341.4(d).

             Further, article III, section 44 of the Texas Constitution
        provides that "the legislature shall provide by law for the
        compensation of all officers, servants, agents and public contractors
        not provided for in this constitution." The duty of providing for
        compensation by law rests solely with the legislature, but section 44
        does not prevent the legislature from empowerin~gother authorities to
        determine salaries, as long as it provides guidelines capable of
        reasonable application. The fixing of the exact sum of compensation
        is a constitutionally delegable right. See In re Johnson, 554 S.W.2d
        775 (Tex. Civ. Ann. - Cornus Christ1 1977. writ ref'd n.r.e.1 569
        S.W.22 882; Commissioners Court of Lubbock County v. Martin, &,     at
        105. The provisions of chapter 75 of the Human Resources Code and
        article 5138d, which authorize juvenile boards to fix the salaries of
        juvenile probation officers according to the needs of the local
        jurisdictions and the uniform standards which the legislature directed
        the Texas Juvenile Probation Commission to establish, constitute such
        a delegation of the power to set compensation. Therefore, we believe
        the statutes authorizing the promulgation of Texas Juvenile Probation
        Commission Standard section 341.4(d) are a constitutjonal delegation
        of authority by the legislature.




                                        p. 621
                                                                    .   .



Honorable Jim Bob Darnell - Page 4 (JM-144)




                             SUMMARY

            Texas Juvenile Probation Comission Standard
         section 341.4(d), which requires that juvenile
         probation officers not be paid less than adult
         probation officers in the county or district,
         violates neither Texas statutes nor the Texas
         Constitution.




                                        JIM     MATTOX
                                        Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Nancy Sutton
Assistant Attorney General

APPROVFD:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Jim Hoellinger
Nancy Sutton




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