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DAN MORALES                                      January 341992
 ATTORNEY
      GENERAI.

     Honorable Bill Turner                                    Opinion No. DM-79
     Braxos County District Attorney
     300 East 26th Street, Suite 310                          Re: Whether a juvenile board created
     Bryan Texas 77803                                        pursuant to chapter 152 of the Human
                                                              Resources Code has the power to hire
                                                              and discharge employees of a juvenile
                                                              probation department    after it has
                                                              employed a chief juvenile probation
                                                              officer (RQ-136)

     Dear Mr. Turner:

             You have asked whether the Braxos County Juvenile Board (the “juvenile
     board”) has the authority to hire and discharge employees of the Brazes County
     Juvenile Probation Department (the “juvenile probation department”) after the
     juvenile board has employed a chief juvenile probation officer. As we understand
     your request, your concern is whether juvenile probation department personnel
     decisions, including hiring and firing of subordinate employees, are solely within the
     authority of the chief juvenile probation officer, or whether the juvenile board has
     the authority to exercise control over these decisions.

            The juvenile board was created under chapter 152 of the Human Resources
     Code.’ Section 152.0007 of subchapter A of that chapter, which defines the duties of
     the juvenile board, provides:

                 The juvenile board shalh

                     (1) establish a juvenile probation department and employ
                 personnel to conduct probation services, including a chief
                 probation officer and, if more than one officer is necessary,


              ‘Chapter   152 of the Human   Resources Code was enacted as        part of   legislation recodi&iq   the
     juvenile board provisions.   See Acts 1989,71st   Lq.,   ch. 352,s 6, at 1430.




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Honorable    Bill Turner   - Page 2             (DM-79)




            assistant offkers, who meet the standards      set by the Texas
            Juvenile Probation Commission; and

                 (2) operate or supervise juvenile services in the county and
            make recommendations       as to the need for and purchase of
            services.

Hum. Res. Code 9 152.0007. Section 152.0008 provides:

                (a) The chief juvenile probation       officer may    appoint
            necessary personnel with the approval of the board.

                (b) Juvenile probation   officers serve at the pleasure of the
            appointing authority.

Id. 9 152.0008. In addition, section 152.0271, which applies solely to the Brazes
County Juvenile Board, provides in pertinent part that “[t]he chief juvenile
probation officer may set the salaries and allowances of juvenile probation
personnel with the approval of the board.” Id. $ 152.0271(e).

        You suggest that these provisions may conflict. Specifically, you contend that
whereas section 152.0007( 1) appears to vest the juvenile board with the authority to
hire juvenile probation department personnel, sections 152.0008 and 152.0271(e)
appear to vest authority over personnel matters with the chief juvenile probation
officer. You state that under this statutory scheme, “it is not clear whether the
board or chief probation officer is required to employ other members of the
department, or if that duty may vary at the juvenile board’s discretion.” We consider
the authority to hire and fire juvenile probation department personnel separately
below.

        As noted above, section 152.0007(l) vests the juvenile board with the duty to
establish a juvenile probation department and employ personnel, including assistant
juvenile probation officers and other employees, but section 152.0008(a) vests the
chief juvenile probation officer with the authority to “appoint necessary personnel
with the approval of the board.” We believe that section 152.0008(a) delegates to
the chief juvenile probation officer the authority to interview and select applicants,
and to hire assistant juvenile probation officers and other employees subject to the
juvenile board’s approval. Thus, the juvenile board’s authority with respect to hiring
of personnel is limited to approving or rejecting the chief juvenile probation officer’s



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Honorable         Bill Turner   - Page 3                      (DM-79)




hiring decisions. We believe that this interpretation of section 152.0008(a) does not
conflict with section 152.0007(l) because the term “to employ” in the latter provision
does not necessarily mean to hire, but may simply mean to provide compensation2

        Subchapter A of chapter 152 is even less straightforward with respect to the
authority to terminate assistant juvenile probation officers and other employees.
The critical question in interpreting subchapter A in this respect is the meaning of
“appointing authority” in section 152.0008(b), which provides that “uluvenile
probation officers serve at the pleasure of the appointing authority.”       Section
152.0008(a) suggests that the chief juvenile probation officer is the “appointing
authority” for all personnel. The predecessor statute for the Brazes County Juvenile
Board, section 8(a) of former article 5139EEEEE,s however, provided as follows:

                   The director of juvenile services may appoint                       necessary
              personnel and set their salaries and allowances                          with the
              approval of the board. The director and other juvenile                   probation
              officers serve at the pleasure of the appointing                         authority.
              (Emphasis added.)

We conclude from the language highlighted above that under former section 8(a),
the “appointing authority” was the juvenile board rather than the director of juvenile
services, because the legislature obviously did not intend the director to serve at his
own pleasure.

        In the current statute, section 152.0008, the “chief juvenile probation officer”
is analogous to “director of juvenile services.” Thus, section S(a) of the predecessor
statute and section 152.0008(b) would be in conflict if the chief juvenile probation
officer were held to be the “appointing authority” for purposes of the latter


         *We further note that the predecessor provisions to sections 152.0007 and 152.COO8, sections 7
and 8 of article 5139EEEEE,       V.T.C.S.,    were enacted as part of the same legislation      adopted in 1983.
See Acts 1983, 68th Leg., ch. 1062, at 5621; see also note 3, infra.      Therefore,   sections 1.52.ooO7(1) and
152.0008(a)   mast be read in harmony if at all possible.        Ciry of Wesf Lake Hills v. Wrsfwood Legal
Defense Fund, 598 S.W.2d 681,684       (Tex. App.--Waco     1980, no writ).


         3Prior to 1989, each juvenile        board was governed by a separate statute.       In recodifying   the
juvenile board provisions, the legislature attempted to cull from the many juvenile board provisions the
characteristics    common to all and to recodify them in subchapter A of chapter          152.    Acts 1989, 71st
Leg., ch. 352,s    1, at 1323. Thus, in construing subchapter A as it applies to the Brazes County Juvenile
Board, we must look to the former statute which governed that particular juvenile board.




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Honorable     Bill Turner   - Page 4      (DM-79)




provision. The implicit definition of “appointing authority” found in former section
S(a) must control in determining the authority of the Braxos County Juvenile Board
because chapter 152 was enacted as part of a nonsubstantive recodification of the
juvenile board provisions, Acts 1989, 71st Leg., ch. 352, 8 6. See Johnson v. City of
Fort Worth, 774 S.W.2d 653, 654-55 (Tex. 1989). Therefore, we conclude that the
juvenile board is the “appointing authority” for purposes of section 152.0008(b), and
thus has the authority to terminate the chief and assistant juvenile probation
officers.

         With respect to all other employees, subchapter A is silent regarding the
 delegation of the authority to terminate, as was its predecessor. As noted above, we
 believe section 152.0008(b) expressly authorizes the juvenile board to terminate
juvenile probation officers. By implication, this procedure does not apply to other
 employees. For this reason, and based on the requirements set forth in section
 152.0008(a) for appointments, we believe that the legislature intended to delegate
the authority to terminate all other employees to the chief juvenile probation
officer, subject to the approval of the juvenile board. As with appointments, we
believe that the juvenile board’s authority with respect to terminating employees
other than juvenile probation officers is limited to approving or rejecting the chief
juvenile probation officer’s decisions.

        In sum, in section 152.0008(a) the legislature has delegated to the chief
juvenile probation officer the authority to appoint personnel, both assistant juvenile
probation officers and other employees, subject to the approval of the juvenile
board. Pursuant to section 152.0008(b), the juvenile board has the authority to
terminate the chief and assistant juvenile probation officers, despite the fact that it
has hired a chief juvenile probation officer. We also conclude that subsection (b),
by implication, authorizes the chief juvenile probation officer to terminate all other
employees, subject to the approval of the juvenile board.

                                       SUMMARY

                 Pursuant to sections 152.0007 and 152.0008 of the Human
            Resources Code, the chief juvenile probation officer of the
            Brazes County Juvenile Probation Department has the authority
            to appoint juvenile probation department personnel, subject to
            the approval of the Brazos County Juvenile Board. The chief
            juvenile probation officer and assistant juvenile probation
            officers serve at the pleasure of the juvenile board, and the



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Honorable    Bill Turner   - Page 5      (DM-79)




            juvenile board has the authority to terminate their employment.
            The chief juvenile probation offker has the authority to
            terminate    other juvenile probation department      employees,
            subject to the approval of the juvenile board.




                                                     DAN      MORALES
                                                     Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General




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