                        T
                                                  OF        TEXAS

                                             AUSTIN.        T-s              78711



                                                     February        19,     1975



The     Honorable            Otis     Hill                                      Opinion         No.      H-     533
Criminal         District           Attorney
Gregg      county                                                               Re:     Authority           of juvenile           judge
P. 0.      Box       2403                                                       over        juvenile        probation        office.
Longview,             Texas         75601


Dear     Mr.         Hill:


            You        have      asked       two questions           relating        to the authority             of the Judge
of the     Court        of Domestic            Relations          in Gregg          County     when      his     court     is
designated            juvenile        court     for     the county         pursuant         to section         5LOQ(b),         Texas
Family      Code.


            Your         first      question      is:


                             Does      the judge         of the juvenile            court     of Gregg
                             county,         Texas,       have    the statutory             authority
                             to establish         the qualifications                and salary         of
                             the juvenile         probation         office     and to appoint
                             members           of that office?


            Article           2338-13,         V. T. C. S.,        establishes          the    Court        of Domestic
Relations        in Gregg            County,          and includes         within      the court’s            jurisdiction
“all    jurisdiction,               powers      and authority          now or hereafter                  placed       in the
District        or     County        Courts      under      the juvenile            and child      welfare          laws     of
this    state    .     . .    .‘I


            Section           10 of this       article      is of principal           concern:


                                     The     Judge      of the    Court      of Domestic           Relations
                             shall    have      authority         to appoint         such     officers        and
                             investigators              that might        be necessary           to the proper




                                                            p.     2403
The     Honorable         Otis      Hill        page      2             (H-533)




                         administration                 of its          jurisdiction         in Gregg            County;
                         when        he deems           it necessary                to the proper                adminis-
                         tration         of such        Court,            he may          appoint        a Court
                         Reporter            provided              such        appointments              are    approved
                         by the Commissioners                             Court      of Gregg             County,          by
                         a majority             vote     of said           members,              the salaries              and
                         compensation                 of such            officers         and Court            Reporter
                         to be determined                     by the           Commissioners                   Court       of
                         Gregg           County       by a majority                 vote     of said           members
                         and to be paid                by the Commissioners                            Court       out of
                         the General               Fund       of Gregg            County         for     the services
                         rendered            therein.          (Emphasis                added).


            No      Texas      decision         has     defined            the scope         of a power             “to appoint                such
officers      and investigators                 that     might           be necessary”                 to the court’s                 jurisdic-
tion.      Only     three      other       Courts        of Domestic                Relations            have      such         authority.
See     V. T. C.S.          art.     2338-4,           $11 (Lubbock   County);    V. T. C.S.                               art.  2338-8
g       (Smith      County)         and V. T. C. S.          art. 2338-20,     5 11 (Midland                               County).


            In our      judgment            this     language             is    broad      enough         to include            the power
to appoint        juvenile         officers         in Gregg             County      if the judge              decides          such’
officers      are    necessary             to the proper                 administration                of his      court’s            juvenile
jurisdiction.            This       decision,          involving               a construction             of the court’s                   power
under      an enabling             statute,        is initially           the primary             right        of the j.udge.                           .,.,. :,


            A similar           statute       creating             the Court         of Domestic                Relations              in Potter
County      expressly           grants        authority            to appoint           juvenile          officers.


                                   The     Judge       of the        Court        of Domestic              Relations
                         shall       have      authority            to appoint            such     juvenile         officers,
                         juvenile          probation           officers           and investigators                   as    might
                         be deemed              necessary                to the proper            administration                      of
                         its    jurisdiction.             .    .    .          V.T.C.S.           art.      2338-3,             $8.


            Another         indication          that the judge                  of the Gregg              County       Court               of Domestic
Relations         may    appoint          juvenile        probation              officers        is found         by comparing                    the
fpur    statutes        which       give    a judge           power            to appoint        “such         officers         and investiga-
tors”      with    statutes         which      restrict            the judge         to appointing              a court           reporter.




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The     Honorable          Otis     Hill         page      3         (H-533)




Whenever        the judge           is    given        general         authority,            the statute         is    silent         on
the duty      of employees                and officers               of the probation               department             to assist
the Court.          But where             his      power        is limited,            the statute          invariably            imposes
an express          duty     of assistance               upon probation                 personnel.            Compare                 V. T. C. S.
arts.     2338-4,       2338-8,            2338-13         and        2338-20         with         V. T. C.S.         arts.       2338-5,
2338-6,       2338-7,         2338-9,            2338-10,            2338-11,         2338-14,         2338-15,            2338-16,
2338-19.


             The    difference             can be explained                   if the judge’s            general        authority
includes      the power            to appoint            juvenile        probation            officers       because             such
persons       would        be accountable                to him,         and necessarily                   required           to render
assistance          when     requested.


           Article         5142,         V. T. C. S. , which                  permits         commissioners                   courts       in
counties      of a certain               size    to appoint             one juvenile    probation   officer,   is not
an exclusive         grant         of power,            and,         if it is applicable    in Gregg    County,   it
can be given          effect       along         with    article         2338-13,            $10    which     is,     in any          event,
a subsequent          expression                of legislative            intent.


             The    salaries         for        juvenile        probation            officers         appointed        by the Court
can either         be determined                 “by     the Commissioners                         Court     of Gregg            County
by a majority          vote        of said         members             . .     .‘I   as provided            in $10,         or in
accordance          with     article            5142d    providing:


                                   The     Commissioners                      Courts         of all    counties        in
                           which         Juvenile        Officers or Probation  Officers,                                or
                           their     assistants,            are employed  under existing                               laws
                           of this        State,        shall    fix     the salaries              to be paid         such
                           Juvenile         Officers            or Probation             Officers          and their
                           assistants,             and provide               for     their     expenses,            without
                           limitation.              Provided,            that in Counties                  where      there
                           is a Juvenile               Board,          said     Board         shall     recommend
                           the salary            to be paid            to such        Juvenile         Officer        or
                           Probation             Officer        and their            assistants,           which       salary
                           shall     be approved                by the Commissioners                         Court         . .    .   .
                           (Emphasis              added)




                                                                p.    2405
The     Honorable              Otis       Hill        page     4         (H- 533)




              Since      article            5139GGG         creates         a juvenile       board        for    Gregg      County,
the proviso            is applicable.                 If one or the other procedure                         must be controlling,
it is    our       opini~on that article                5142d addresses   the subject                       of salaries for
juvenile           officers         more         directly     than does         article      2338-13,           $10,     and
consequently,                 its    procedure            should      be followed.


              Your  second question is whether  the judge of the Court of Domestic,
Relations        in Gregg  County may be appointed   to membership   on the juvenile
board.


              Article          5139E-2,            V. T. C. S.,        is applicable            to ‘Gregg        County        and,
provides:


                              In any        county       having       a population          of not less
                              than       75,800       and not more             than 78,000          according
                              to the last           preceding         federal        census,        the
                              Commissioners                  Court      may      name       the judge           of the
                              court         of domestic            relations     as an additional
                              member              of the juvenile           board     and may         pay him
                              for     his     services        on the board           in an amount
                              not to exceed              the additional           compensation              allowed
                              other         members          of the county           juvenile       board.


              In 1973,          article           5139GGG,         V. T. C.S.,         was      adopted     and requires
                                                                                                                    ,,.,.      that
                                                                                                                                 ~,.        .,
the Gregg            County         Juvenile          Board        “shall      be composed            of the district     judges
of the     several            judicial        districts       of the county           and the county              judge      of Gregg
County.        ”


              You      have         suggested          that the 1973           Act    repeals       article        51393-2            by
implication.              This           might     be the case          if article        5139GGG          had    said     the
Board      “shall        only            be composed”              of certain        persons,         but as written             it
is   easily        reconciled             with     the permissive              language         of article        51393-2         which
authorizes,             but does            not require,            the appointment             of the Judge             of Domestic
Relations           to the Juvenile                Board      of Gregg          County.


              Texas       courts            are    reluctant         to find    repeals         by implication             and only
do so where             the provisions                of a later        statute       are    clearly        repugnant          to an
earlier        one.       Garrett            v. State,        279     S. W. 2d 366          (Tex.      Crim.        App.       ,1955);
Jefferson           County          v.    Board       of County         and District           Road       Indebtedness,               182
S. W. 2d 908            (Tex.         Sup..        1944).




                                                               p.     2406
      The Honorable     Otis    Hill      page      5        (H-533)




                                                 SUMMARY


                               The     Judge    of the        Court      of Domestic          Relations
                        in Gregg        County      has       power      to appoint      juvenile
                        probation        officers       when       such    officers      are     necessary
                        to the proper          administration              of the court’s         juvenile
                        jurisdiction.           Their         salaries     should      be recommended
                        by the Gregg           County         Juvenile      Board      and approved          by
                        the Commissioners                    Court.       The     statute authorizes
                        but does       not require            the Judge      of    the Court        of
                        Domestic         Relations           to be appointed          to the Gregg
                        County       Juvenile       Board        by the Commissioners                    Court.


                                                                            Very      truly    yours,



                                                                                      Qz!&
                                                                            JOHN      L. HILL
                                                                           Attorney           General     of Texas
       PPROVED:



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      DAVID     M.   KENDALL,          First    Assistant




      C.   ROBERT     HEATH,         Chairman
      Opinion    Committee


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