                                  ATTORNEY              GENERALOF                TEXAS
                                                 GREG         ABBOTT




                                                      June l&2004



The Honorable Mike Stafford                               Opinion No. GA-0205
Harris County Attorney
1019 Congress, 15th Floor                                 Re: Whether a juvenile board may designate a
Houston, Texas 77002- 1700                                juvenile probation department as the office authorized
                                                          to determine whether to defer prosecution of a child
                                                          referred to juvenile court for certain nonviolent
                                                          misdemeanor offenses (RQ-0152-GA)

Dear Mr. Stafford:

        You ask whether a juvenile board may designate a juvenile probation department as the office
authorized to determine whether to defer prosecution of a child referred to juvenile court for
nonviolent misdemeanor offenses instead of forwarding such referrals to a prosecuting attorney.’

I.       Backmound

          The Texas Juvenile Probation Commission oversees juvenile probation services for the state.
See TEX. HUM. RES. CODE ANN. 5 141 .OOl (Vernon 2001). The commission distributes state funds
to local juvenile boards and establishes uniform standards for the local juvenile justice system. See
id. $ 141 .001(3)-(4). At the county level, the juvenile justice system functions primarily under the
guidance of the juvenile board, which is a “body established by law to provide juvenile probation
services to a county.” Id. $ 141.002(4). Each juvenile board is composed of “the county judge, the
district judges in the county, and the judges of any statutory court[ ] designated as a juvenile court”*
whose*duty is to administer the juvenile justice system in the county. See id. $9 152.0032 (Vernon
2001), .0007(Vemon Supp. 2004). The board is responsible for establishing a juvenile probation
department and policies for juvenile services within the jurisdiction           of the board.    See id.
9 152.0007(a)(1)-(2) (Vernon Supp. 2004). The juvenile probation department implements the
policies of the juvenile board, and through its probation officers provides juvenile probation services
to juveniles referred to juvenile court. See id. 0 152.0007(b); see also id. $9 142.001(l), .002


           ‘See Letter and Brief from Honorable Mike Stafford, Harris County Attorney, to Honorable Greg Abbott, Texas
Attorney General (Dec. 19, 2003) (on tile with Opinion Committee, also available at http://uww.oag.state.tx.us)
[hereinafter Request Letter].

          *In a county with a family district court, the juvenile board is composed of: “( 1) the county judge; (2) the judge
of each family district court; (3) the judge of each other district court in the county; and (4) the judge of each other court
in the county that has jurisdiction over juvenile matters.” TEX. HUM. REs. CODE ANN. 6 152.0051(Vemon              2001).
The Honorable Mike Stafford            - Page 2            (GA-0205)




 (Vernon 2001). Juvenile probation services are “services provided by or under the direction of a
juvenile probation officer in response to an order issued by a juvenile court and under the court’s
 direction, including . . . deferred prosecution.” See id. 5 142.001(l)@).

        Title 3 of the Family Code is designated the “Juvenile Justice Code.” In each county, the
juvenile board “shall designate one or more district, criminal district, domestic relations, juvenile,
or county courts or county courts at law as the juvenile court.”  TEX. FAM. CODE ANN. 9 5 1.04(b)
 (Vernon 2002). The juvenile court has exclusive original jurisdiction over “all cases involving the
delinquent conduct or conduct indicating a need for supervision engaged in by a person who was a
child. . . at the time the person engaged in the conduct.” Id. § 5 1.04(a).

        Section 53.01 of the Family Code, originally enacted in 1973: provides:

                 (a) On referral of a person believed to be a child or on referral of the person’s
        case to the office or official designated by the juvenile board, the intake officer,
        probation officer, or other person authorized by the board shall conduct a preliminary
        investigation to determine whether:

                    (1) the person referred to juvenile            court is a child within the
                meaning of this title; and

                      (2) there is probable cause to believe the person:

                          (A) engaged in delinquent conduct or conduct indicating
                      a need for supervision; or

                          (B) is a nonoffender who has been taken into custody
                      and is being held solely for deportation out of the United
                      States.




                 (d) Unless thejuvenile board approves a writtenprocedureproposed        by the
        ofice of prosecuting attorney and chief juvenile probation off;cer which provides
        otherwise, tfit is determined that the person is a child and, regardless of a finding
        ofprobable cause, or a lack thereof there is an allegation that the child engaged in
        delinquent conduct of the grade offelony or conduct constituting a misdemeanor
        oflense involving violence to a person or the use or possession of a$rearm, illegal
        knife, or club, as those terms are deJned by Section 46.01, Penal Code, orprohibited
        weapon, as described by Section 46.05, Penal Code, the case shall be promptly
       forwarded to the ofice of the prosecuting attorney . . . .

Id. $ 53.01(a), (d) (Vernon Supp. 2004) (emphasis added).




       3See Act of M a y 25,1973,63d    Leg., R.S., ch. 544,1973   Tex. Gen. Laws 1460.
The Honorable Mike Stafford      - Page 3            (GA-0205)




        When a referral to the prosecuting attorney is required to be made under section 53.01(d),
section 53.012 prescribes the duties of the prosecuting attorney:

                (a) The prosecuting attorney shall promptly review the circumstances and
       allegations of a referral made under Section 53.01 for legal sufficiency and the
       desirability ofprosecution and may tile a petition without regard to whether probable
       cause was found under Section 53.01.

                (b) If the prosecuting attorney does not file a petition requesting the
       adjudication of the child referred to the prosecuting attorney, the prosecuting attorney
       shall:

                 (1) terminate   all proceedings,   if the reason is for lack of probable
               cause; or

                 (2) return the referral to the juvenile     probation   department    for
               further proceedings.

                (c) The juvenile probation department shall promptly refer a child who has
       been returned to the department under Subsection (b)(2) and who fails or refuses to
       participate in a program of the department to the prosecuting attorney for review of
       the child’s case and determination of whether to tile a petition.

Id. 9 53.012 (Vernon 2002).

         Under the circumstances in which a referral is not required to be made to the prosecuting
attorney, section 53.03 permits deferred adjudication of the child, provided that:

                (a) Subject to Subsections (e) and (g), if the preliminary investigation
       required by Section 53.01 of this code results in a determination         that further
       proceedings in the case are authorized, the probation officer or other designated
       officer of the court, subject to the direction of the juvenile court, may advise the
       parties for a reasonable period of time not to exceed six months concerning deferred
       prosecution and rehabilitation of a child if:

                 (1) deferred prosecution    would be in the interest of the public and
               the child;

                 (2) the child and his parent, guardian, or custodian      consent with
               knowledge that consent is not obligatory; and

                 (3) the child and his parent, guardian, or custodian are informed
               that they may terminate the deferred prosecution at any point and
               petition the court for a court hearing in the case.

Id. 0 53.03(a) (Vernon Supp. 2004).
The Honorable Mike Stafford          - Page 4              (GA-0205)




         However, subsections (e) and (g) of section 53.03 circumscribe the probation officer’s, as
well as the prosecuting attorney’s, authority in such cases. Subsection (e) states that although “[a]
prosecuting attorney may defer adjudication for any child, ” a probation officer may not do so for any
“case that is required to be forwarded to the prosecuting attorney under Section 53.0l(d),“unless    the
prosecuting attorney consents in writing. Id. 8 53.03(e). Subsection (g) declares that prosecution
may in no case be deferred for any child who commits an offense under sections 49.04-.08 of the
Penal Code (driving, flying or boating while intoxicated, or intoxication manslaughter), or commits
a third or subsequent offense under sections 106.04 (consumption            of alcoholic beverages by
a minor), or 106.041 of the Alcoholic Beverage Code (minor driving while intoxicated). See id.
 5 53.03(g). Thus, a probation officer or other official designated by the juvenile court is granted the
discretion to defer prosecution of a juvenile in limited circumstances.     The statute makes clear, in
this relatively narrow class of cases, that the prosecutor has no role in determining the fate of the
juvenile. The Harris County District Attorney contends that these statutes are unconstitutional to the
extent that they violate the separation of powers doctrine and grant “prosecutorial discretion” to the
probation department.4

II.      Analvsis

        The relevant provisions of the Juvenile Justice Code have been in effect since 1973 .5 We
begin with the proposition that all statutes are presumed to be constitutional. See TEX. GOV’T CODE
ANN. 5 3 11.02 l(1) (Vernon 1998); see also Tex. Mun. League Intergov ‘tl Risk Pool v. Tex. Workers ’
Comp. Comm ‘n, 74 S.W.3d 377,383 (Tex. 2002) (“We presume that the Legislature intended for
the law to comply with the United States and Texas Constitutions . . . .“).

         A.       Separation     of Powers

                The Harris County District Attorney argues first that the separation ofpowers doctrine
prohibits the juvenile probation department from performing functions properly allocated to the
judicial branch of government.   See DA’s Brief, supra note 4, at 6-8. Article II, section 1 of the
Texas Constitution provides:

                           The powers of the Government of the State of Texas shall be
                  divided into three distinct departments, each of which shall be
                  confided to a separate body of magistracy, to wit: Those which are
                  Legislative to one; those which are Executive to another; and those
                  which are Judicial to another; and no person, or collection of persons,
                  being of one of these departments, shall exercise any power properly



         4Brief from Honorable Charles A. Rosenthal, Harris County District Attorney, to Honorable Greg Abbott, Texas
Attorney General, at 1,5-6 (Feb. 17,2004) (on tile with Opinion Committee) [hereafter DA’s Briefj.

          ‘See Act of May 25,1973,63d   Leg., R.S., ch. 544,1973 Tex. Gen. Laws 1460, enacting title 3 of the Family
Code entitled “Delinquent Children and Children in Need of Supervision, ” amended by Act of May 27,1995,74th    Leg.,
R.S., ch. 262, 1995 Tex. Gen. Laws 2517 (amendments to act including renaming title 3 “Juvenile Justice Code”)
(current version at TEX. FAM. CODE ANN. $5 5 1 .Ol-60.107 (Vernon 2002 & Supp. 2004).
The Honorable Mike Stafford       - Page 5           (GA-0205)




                attached to either of the others,     except   in the instances    herein
                expressly permitted.

TEX. CONST. art. II, 9 1. It is well established   that the offices of county and district attorney, which
 are created under article V of the Texas Constitution, the judicial article, are included within the
judicial branch of government. SeeMeshell v. State, 739 S.W.2d 246,253 (Tex. Crim. App. 1987).
Moreover, there can be no doubt that a juvenile probation department is also a part of the judicial
branch of government.       As we have indicated, a county’s juvenile board is composed of judges
charged with the administration of the juvenile justice system in the county. See TEX. HUM. REs.
 CODE ANN. $0 152.0007 (Vernon Supp. 2004), .0032, .0051 (Vernon 2001). The juvenile board in
turn establishes the juvenile probation department.         See id. 9 152.0007(a)(1)-(2) (Vernon Supp.
2004). Thus, it is clear that both the district attorney’s office and the juvenile probation department
 are included within the judicial branch of government.         See also Tex. Att’y Gen. LA-137 (1977)
 at 2 (county adult probation officer exercises powers of the judicial department). Where two entities
exist within the same branch of government, the separation of powers doctrine is not applicable.

        B.      District Attorney’s      Authority   to Represent      the State    and Prosecutorial
                Discretion

                 The Harris County District Attorney also contends that those provisions of the
Juvenile Justice Code that accord prosecutorial discretion to the juvenile probation department
infringe on his power to represent the state under article V, section 21 of the Texas Constitution. See
DA’s Brief, supra note 4, at 8-l 1. That provision states, in relevant part:

                The County Attorneys shall represent the State in all cases in the
                District and inferior courts in their respective counties; but if any
                county shall be included in a district in which there shall be a District
                Attorney, the respective duties of District Attorneys and County
                Attorneys shall in such counties be regulated by the Legislature.

TEX. CONST.art. V, $21.       In Harris County, the legislature has bifurcated the duties of the county
attorney and the district attorney. The Harris County Attorney is responsible for all civil cases in the
various courts of Harris County. See TEX. GOV’T CODEANN. $j45.201 (Vernon 2004). The Harris
County District Attorney, on the other hand, “has all the powers, duties, and privileges in Harris
County relating to criminal matters for and in behalf of the state that are conferred on district
attorneys in the various counties and districts.” Id. 5 43.180(c). Thus, in Harris County, the district
attorney is the designated official for all criminal prosecutions.

                1.      Juvenile Cases are Civil in Nature

                         We find no conflict between the Juvenile Justice Code and section 43.180 of
the Government Code, which grants exclusive criminal prosecution in Harris County to the district
attorney. A juvenile court “is not a criminal court. . . [but] is a special court created by statute, and
the statute specifically provides what disposition may be made of a ‘delinquent child.“’ Dendy v.
Wilson, 179 S.W.2d 269, 273 (Tex. 1944). Juvenile proceedings are governed, “as far as
The Honorable Mike Stafford       - Page 6            (GA-0205)




practica[ble],” by the Rules of Civil Procedure, and are “civil in nature.” JR. W. v. State, 879 S.W.2d
254,256 (Tex. App.-Dallas 1994, no writ); see also TEX. FAM. CODE ANN. $$ 51.13(a) (Vernon
Supp. 2004) (providing that generally an order of adjudication or disposition pursuant to the Juvenile
Justice Code is not a conviction of a crime), 51.17(a) (providing that “[elxcept for the burden of
proof to be borne by the state in adjudicating a child . . . or otherwise when in conflict with a
provision of [title 31, the Texas Rules of Civil Procedure govern proceedings under [title 31’3,
56.01(a) (Vernon 2002) (providing that an appeal from an order of a juvenile court is predicated “as
in civil cases generally”).

         Moreover, the Texas Code of Criminal Procedure does not apply to juvenile proceedings
“unless the Legislature evinces a contrary intent.” Vasquez v. State, 739 S.W.2d 37,42 (Tex. Crim.
App. 1987); see also TEX. FAM. CODE ANN. $0 52.01(a)(2) (Vernon Supp. 2004) (providing that a
child may be taken into custody “pursuant to the laws of arrest”), 5 1.17(b) (providing that discovery
in a proceeding under title 3 “is governed by the Code of Criminal Procedure”), 5 1.17(c) (providing
that “[elxcept as otherwise provided by [title 31, the Texas Rules of Evidence applicable to criminal
cases and Chapter 38, Code of Criminal Procedure, apply in a judicial proceeding under [title 3]“),
5 1.19(a) (Vernon 2002) (providing that “limitation periods under Chapter 12, Code of Criminal
Procedure . . . apply to proceedings under [title 31”).

        Finally, even ifjuvenile prosecutions were to be construed as criminal in nature, the Juvenile
Justice Code’s delegation of authority in this narrow class of cases constitutes a more specific statute
than section 43.180 of the Government Code because it applies only to nonviolent misdemeanor
offenses that do not involve the use of a prohibited weapon.

                2.      Article Y, Section 21

                           The Harris County District Attorney also argues that because juvenile cases
 are quasi-criminal in nature, and article V, section 21 of the Texas Constitution declares that all
 criminal cases are within his constitutional jurisdiction, the legislature, in enacting the Juvenile
Justice Code, has unconstitutionally       delegated prosecutorial discretion to an official other than
himself. See DA’s Brief, supra note 4, at 2-5. As we have noted, however, all actions involving
juveniles begin as civil cases. More significantly, article V, section 21 does not even commit all
criminal prosecutions to the district or county attorney. It states first that a county attorney must
represent the state in the “District and inferior courts” in their county. TEX. CONST.art.V, 9 2 1. The
provision then declares that, in counties where there is a district attorney, “the respective duties” of
both officers “shall . . . be regulated by the Legislature.” Id. Nothing in article V, section 2 1 requires
that in Harris County or elsewhere the legislature must commit all representation in court to one of
those two officials. See id. Indeed, the Texas Supreme Court has recognized that in civil cases a
commissioners court is at liberty to contract with attorneys other than a county, district, or criminal
district attorney. See Guynes v. Galveston County, 861 S.W.2d 861,863-64 (Tex. 1993).

        In enacting the Juvenile Justice Code, the legislature has recognized that certain kinds of
juvenile cases, specifically those enumerated in section 53.01(d) of the Family Code (felonies and
misdemeanors involving either violence to a person or use or possession of a firearm, illegal knife,
club, or other prohibited weapon), are exclusively within the province of the prosecuting attorney.
The Honorable Mike Stafford      - Page 7           (GA-0205)




See TEX. FAM. CODE ANN. $9 53.01(d), 53.03(e), (g) (V emon Supp. 2004). The legislature has
merely carved out a narrow class of cases - nonviolent misdemeanors              - that fall within the
jurisdiction of the juvenile probation department.      In such  cases, in accordance  with subsection
 53.03(a), “the probation officer or other designated officer of the court, subject to the direction of
the juvenile court” may defer prosecution, provided that the child and his parent, guardian, or
 custodian consent, and the probation officer finds that deferred prosecution “would be in the interest
 of the public. and the child.” Id. 5 53.03(a) (emphasis added). Thus, the legislature has in this
instance determined “the respective duties of District Attorneys and County Attorneys” pursuant to
the terms of article V, section 21 of the Texas Constitution. See TEX. CONST. art. V, 9 21.

         In sum, the Harris County District Attorney’s authority to represent the state in criminal
matters is not contravened by the legislature’s grant of deferred prosecution in a relatively narrow
class of juvenile cases to the Harris County Juvenile Probation Department.         Under the terms of
article V, section 21 of the Texas Constitution, the legislature is at liberty to regulate the duties of
the county and district attorneys. Furthermore, juvenile cases are, at least initially, civil in nature
and are governed by the Rules of Civil Procedure. It is only in those instances - felonies and
misdemeanors involving violence to a person or the use or possession of prohibited weapons - in
which the Juvenile Justice Code removes a child, sometimes temporarily, sometimes permanently,
from the juvenile justice system that the Harris County District Attorney is granted full prosecutorial
discretion.
The Honorable Mike Stafford     - Page 8           (GA-0205)




                                        SUMMARY

                        A juvenile board may, without contravening article V, section
               21 or article II, section 1 of the Texas Constitution, designate a
               juvenile probation department as the office with the authority to defer
               prosecution of a child referred to juvenile court for certain nonviolent
               misdemeanor offenses.




BARRY R. McBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
