Commissioners Court of Lubbock County v. Martin

• Decision Date: 30 August 1971
• Docket Number: No. 8161,8161
• Citation: 471 S.W.2d 100
• Parties: . The Honorable Crawford C. MARTIN, Attorney General of the State of Texas, et al., Appellees. Court of Civil Appeals of Texas, Amarillo
• Court: Texas Court of Appeals

Page 100

471 S.W.2d 100

COMMISSIONERS COURT OF LUBBOCK COUNTY, Texas, Appellant, v. The Honorable Crawford C. MARTIN, Attorney General of the State of Texas, et al., Appellees.

No. 8161.

Court of Civil Appeals of Texas Amarillo.

Aug. 30, 1971.

Rehearing Denied Sept. 27, 1971.

Brock, Waters & Galey, Ralph Brock, Lubbock, for appellant.

Crawford C. Martin, Atty. Gen., Jack Sparks, Austin C. Bray, Jr., Asst. Attys. Gen., Austin, for appellees.

REYNOLDS, Justice.

This appeal results from the trial court's declaratory judgment decreeing that Section 10 of Article 42.12, the Adult Probation and Parole Law, of the Vernon's Ann.Texas Code of Criminal Procedure is constitutional, and that the actions of the defendant district judges, acting under the Texas Attorney General's interpretation of Section 10, were within their proper powers. The judgment of the trial court, as modified in this opinion, is affirmed.

In 1965, the 59th Legislature undertook a plenary revision of the Texas Code of Criminal Procedure and in the final version expanded the then existing adult probation law through the enactment of Article 42.12 as the Adult Probation and Parole Law. Among the provisions of Art. 42.12 is Sec. 10, reading in part, as amended in 1967, as follows:

'Sec. 10. For the purpose of providing adequate probation services, the district judge or district judges having original jurisdiction of criminal actions in the county or counties, if applicable, are authorized, With the advice and consent of the commissioners court as hereinafter provided, ¹ to employ and designate the titles and fix the salaries of probation officers, 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. * * *' ² There existed in Lubbock County, under the provisions of Art. 42.12, an adult probation office, the personnel of which had been appointed, and their salaries set, by the four district judges having jurisdiction over Lubbock County with the approval of the Lubbock County Commissioners Court. On May 13, 1969, the Attorney General of Texas issued Opinion No. M--393 construing Sec. 10, and concluding that the phrase 'with the advice and consent of the commissioners court' contained in the section was superfluous and must be disregarded, and that as a result the approval of the commissioners court was not required. Thereafter, on July 31, 1969, pursuant to that opinion, the four district judges of Lubbock County, three of whose districts are co-extensive with the boundaries of Lubbock County and one whose district includes both Lubbock and Crosby Counties, entered their order increasing some probation personnel salaries, appointing additional probation personnel, fixing the salaries of such appointees, and directing the Commissioners Court of Lubbock County to purchase and furnish additional furniture and equipment for the adult probation office. Apparently the expenditures called for in the order were made by the Lubbock County Commissioners Court. Thereafter, during the summer of 1970 when the Lubbock County budget for the following calendar year was being prepared, a controversy arose between the four district judges and the Lubbock County Commissioners Court as to who had the authority to determine the probation personnel and to fix their salaries and the expenses of the probation office.

The Commissioners Court of Lubbock County, appellant here, then brought this action pursuant to the Texas Uniform Declaratory Judgment Act ³ against the Attorney General of Texas and the four judges of the judicial district courts of Lubbock County, who are the appellees here. The suit sought a declaration that Sec. 10 of Art. 42.12 is unconstitutional insofar as that section provides for the appointment and fixing of compensation of probation personnel, and for a construction of said section. Defendant-appellees were served and answered.

After a hearing, the trial court entered its judgment declaring that Sec. 10 is constitutional; that pursuant to that authority the defendant district judges may appoint and fix the compensation of probation personnel and the expenses of the office without the advice and consent of the commissioners court of either or both Lubbock and Crosby County; that in the absence of a constitutional prohibition the judges have the inherent power to provide for an adult probation office and fix expenditures therefor without approval of the Commissioners Court of Lubbock or Crosby County or any non-judicial agency of the government; that in any proceeding wherein the reasonableness and necessity of the actions of the defendant judges is put in issue, the burden of proof shall be on the commissioners court; and that the reasonable and necessary salaries and expenses of the adult probation office when fixed by the defendant district judges shall be paid prorata by the Commissioners Courts of Lubbock and Crosby Counties.

At appellant's request, the trial judge made and filed findings of fact and conclusions of law. In addition to the findings of fact supporting the recitations in the judgment, other findings were that the probation officers employed handled more than twice the number of probation cases specified by Sec. 10 to be supervised by each officer, and that appellant had appropriated and set side in a special fund the increased amount of expenditures required by the judge's budget request for 1971 without the necessity of any increase in the valuation or ad valorem tax rate of Lubbock County. Moreover, the conclusions of law expressed in addition to those set out in the judgment were that the defendant district judges are limited by standards of reasonableness and necessity, and that the commissioners court has a ministerial duty, subject to the standards of reasonableness and necessity, to approve and appropriate sufficient funds for the probation office as requested by the judges .

From this declaratory judgment, appellant has perfected its appeal on eight points of error. Inasmuch as the assignments pertain to the constitutionality of Sec. 10 and the construction thereof, the points will be discussed generally rather than seriatim. It was in the trial court and is here appellant's position that Sec. 10 is unconstitutional as being violative of the Texas Constitution and the United States Constitution because the power to fix salaries, with a resultant levy of taxes to pay them, is a power constitutionally reserved to, and that may not be delegated by, the Legislature. If Sec. 10 is constitutional, appellant alternatively contended and still contends that the appointment and compensation of probation personnel and expenses of the office must be with the advice and consent of, and the final decision exclusively resting with, the commissioners court. Appellees' position in the trial court was and is here that Sec. 10 is constitutional, and that the judges have the exclusive authority to appoint probation personnel and to fix their compensation, and the expenses of the office, without the advice and consent of the commissioners court, which has a mandatory ministerial duty to approve such actions. Appellees further contended and still contend that in any event district court judges have the inherent constitutional and statutory power to establish and staff a probation office, within reasonable standards, and to require appropriation and payment therefor by the commissioners courts within the judicial districts. In reply, appellant asserted and continues to assert that there is a constitutional denial of such claimed inherent powers.

With respect to its claim that Sec. 10 of the statute is unconstitutional, appellant argues that since Art. 2, Sec. 1, of the Texas Constitution, Vernon's Ann.St., provides for the separation of government into three departments--legislative, executive, and judicial--neither of which shall exercise any power properly attached to either of the others, and since Art. 3, Sec. 44, gives the power to fix salaries to the Legislature, which has power to levy taxes, the delegation of authority to the judiciary under Sec. 10 to fix salaries and indirectly levy taxes to pay them is constitutionally impermissive. Moreover, it is contended that Sec. 10 does not provide sufficient standards, particularly with respect to the minimum or maximum salaries or number of probation employees, to be a proper delegation of authority.

Neither the constitutionality of Sec. 10, nor the construction thereof, heretofore has been before or decided by the courts of this State; consequently, we must rely on the general principles applicable to constitutional construction in determining the correctness of the respective positions of the parties. The rules are fairly well settled, so that the ultimate decision becomes one of application to particular facts.

The rule initially applied is that every possible presumption obtains in favor of the constitutionality of a statute until the contrary is shown beyond a reasonable doubt, and, if a statute is susceptible of construction which would render it constitutional or unconstitutional, it is the court's duty to give it the construction that sustains its validity. State v. Hogg, 123 Tex. 568, 70 S.W.2d 699, 72 S.W.2d 593 (1934). One of the settled maxims in constitutional law is that the legislature must declare the policy of the law and fix the legal principles which are to control, but may invest a delegated authority with the power to ascertain the facts and conditions to which the policy and principles apply. Cooley on Constitutional Limitations (Eighth Edition), Vol. 1, pp. 229--230.

The legislative right to make the laws carries with it the correlative right to create offices and prescribe their duties, but not a relative right to appoint to office--a right that belongs to the locality. Ex...