Can a Texas judge order a probation department director to personally prepare a presentence investigation report?

Plain-English summary

The Hunt County District Attorney and the Hunt County Attorney jointly asked the Attorney General five questions about how much control a district judge has over the county's community supervision and corrections department (the probation department) when it comes to presentence investigation reports. A presentence investigation report is the written report a judge reviews before sentencing that describes the offense, the defendant's criminal and social history, restitution, and other information. Under article 42.12, section 9(a) of the Code of Criminal Procedure, the judge directs "a supervision officer" to prepare it.

The first and fourth questions asked whether a judge could order the department's director to personally conduct the investigation and to appear in court to present the report. The requestors told the Attorney General that this director does not supervise people placed on probation. The opinion reasoned that because article 42.12 lets a judge direct only "a supervision officer," and a director who does not supervise probationers is not a supervision officer, the judge has no authority to make that director personally prepare the report or personally appear to present it.

The second and third questions asked about the director's power to delegate. The opinion explained that article 42.12, section 9(a) imposes its duties on a supervision officer, not on the director, while chapter 76 of the Government Code authorizes the director to delegate six listed duties, including overseeing the daily operations of the department. So a director may delegate the report-preparation and presentation duties that the statute does not specifically assign to someone else, but cannot delegate a duty the statute hands to another person.

The fifth question asked whether a judge could single out a specifically named officer. The opinion noted that the article's word "a" can mean "any," which read alone might let a judge pick any particular officer, but that chapter 76 limits a judge's role in personnel decisions to appointing the director and a fiscal officer, and other parts of article 42.12 show the Legislature knows how to name specific personnel when it wants to. For those reasons, the opinion concluded a judge likely is not authorized to order a specifically named supervision officer to conduct the investigation.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Judges (as the opinion described it): The opinion told judges that their power under article 42.12, section 9(a) reaches "a supervision officer," not a director who does not supervise probationers, so they could not order that director to personally prepare or present a report, and likely could not order a specifically named officer to conduct one.

The probation department and its director (as the opinion described it): The opinion described the director as free to delegate report-preparation and presentation duties that article 42.12, section 9(a) does not assign to someone else, drawing on the director's chapter 76 authority to oversee the daily operations of the department.

Prosecutors and county attorneys (as the opinion described it): The opinion answered the requestors that a judge's authority over department personnel is the one chapter 76 sets, limited for personnel decisions to appointing the director and a fiscal officer.

Common questions

Can a Texas judge make the head of the probation department personally write a presentence report?
The opinion concluded a judge cannot, where that director does not supervise people on community supervision, because the statute lets a judge direct only "a supervision officer" to prepare the report.

Can the director hand the work off to staff?
The opinion said yes for duties the statute does not specifically assign to someone else. The director may delegate report-preparation and presentation duties under his chapter 76 authority to oversee the department's daily operations.

Can a judge order one particular officer by name to do the investigation?
The opinion concluded a judge likely is not authorized to do that, because chapter 76 limits a judge's personnel role to appointing the director and a fiscal officer, and the Legislature elsewhere showed it knows how to name specific personnel when it intends to.

Who employs the supervision officers, the judges or the department?
The opinion pointed to section 76.004(b), which states that a person employed under that subsection is an employee of the department and not of the judges or judicial districts.

Background and statutory framework

The analysis turned on the interaction of two statutes. Article 42.12, section 9(a) of the Code of Criminal Procedure requires, before sentencing in most felony and misdemeanor cases, that the judge "direct a supervision officer" to report in writing on the offense, restitution, and the defendant's criminal and social history. A "supervision officer" is defined in section 2(3) as a person appointed or employed under Government Code section 76.004 to supervise defendants placed on community supervision.

Chapter 76 of the Government Code governs community supervision and corrections departments. It provides for a director who "shall perform or delegate the responsibility for" enumerated duties, including overseeing the daily operations of the department (section 76.004(a), (a-1)(1)); for the employment of supervision officers who conduct presentence investigations (section 76.004(b)); and it states that such employees belong to the department, not the judges. Section 76.0045(a) limits the appointing judges' responsibility for personnel decisions to appointing a director and a fiscal officer.

On the fifth question, the opinion read the indefinite article "a" in "a supervision officer" as capable of meaning "any" (citing GA-0694 (2009) and Chavira v. State), but found the personnel limits of chapter 76 and the Legislature's demonstrated ability to name specific personnel elsewhere in article 42.12 (and GA-0880 (2011), citing FM Props. Operating Co. v. City of Austin) pointed against letting a judge command a named officer.

Citations

Cases:

• Chavira v. State, 319 S.W.2d 115, 120 (Tex. Crim. App. 1958)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000)

Texas Attorney General opinions referenced:

• Tex. Att'y Gen. Op. No. GA-0694 (2009)
• Tex. Att'y Gen. Op. No. GA-0880 (2011)

Statutes:

• Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (West Supp. 2012); see also § 9(b), (g), (h), § 2(3), § 18(d)
• Tex. Gov't Code Ann. §§ 76.001-.018 (West 2005 & Supp. 2012); § 76.004(a), (a-1)(1), (b); § 76.0045(a)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0991
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga0991.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

February 19, 2013

The Honorable Noble D. Walker, Jr. Opinion No. GA-0991
Hunt County District Attorney
Post Office Box 441 Re: Whether a district judge may prohibit the
Greenville, Texas 75403-0441 director of a community supervision department
from delegating his duties with regard to
The Honorable Joel Littlefield presentence investigations (RQ-1089-GA)
Hunt County Attorney
Post Office Box 1097
Greenville, Texas 75403-1097

Dear Mr. Walker and Mr. Littlefield:

You present five questions about the authority of a district judge over the operations of the Hunt County Community and Supervisions Department:[1]

1. Does a district judge have the legal authority to order the director of the Department to personally conduct a presentence investigation pursuant to Article 42.12, Section 9 of the Texas Code of Criminal Procedure?

2. Does a district judge have the legal authority to prohibit the Director of the Department from delegating any responsibilities for the preparation and presentment of a presentence investigation report?

3. Does a district judge have the legal authority to require the Director of the Department to request permission and receive approval from said judge to delegate the activity involved in the preparation and presentment of a presentence investigation report?

4. Does a district judge have the legal authority to require the Director of the Department to appear in court for the purpose of presenting an ordered presentence investigation report?

5. May a district judge order a specifically named supervision officer employed by the Department to conduct a presentence investigation, thereby overriding the statutory authority of the Director to delegate the responsibility of preparing the presentence investigation report and the statutory limitations imposed upon a district judge with regard to Department personnel?

Request Letter at 2-3. Your questions implicate article 42.12 of the Code of Criminal Procedure and chapter 76 of the Government Code. Where we can, we consider related questions together.

A presentence investigation report is required by article 42.12, section 9 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(a) (West Supp. 2012). Article 42.12 is the state's community supervision, or probation, statute. See id. art. 42.12, §§ 1-24 (entitled "Community Supervision"). Article 42.12, section 9 provides, with some specified exceptions, that before the imposition of sentence by a judge in a felony case or a misdemeanor case

the judge shall direct a supervision officer to report to the judge in writing on the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge.

Id. § 9(a); see also id. § 9(b), (g) (specifying exceptions). Section 9 expressly provides that the court "shall direct a supervision officer" to report to the judge. See id. § 9(a). A "supervision officer" is "a person appointed or employed under Section 76.004, Government Code, to supervise defendants placed on community supervision." Id. § 2(3).

Chapter 76 of the Government Code governs Community Supervision and Corrections Departments ("CSCD" or "department"). TEX. GOV'T CODE ANN. §§ 76.001-.018 (West 2005 & Supp. 2012). It provides for the appointment of a CSCD director who "shall perform or delegate the responsibility for" performing enumerated duties, which include "overseeing the daily operations of the department." Id. § 76.004(a), (a-1)(1) (West Supp. 2012). Section 76.004, referred to by article 42.12, section 9, provides for the employment of supervision officers to conduct, among other things, presentence investigations. Id. § 76.004(b). Section 76.004 also provides that the CSCD director employs department personnel and expressly states that a "person employed [under subsection 76.004(b)] is an employee of the department and not of the judges or judicial districts." Id. § 76.004(b). In addition, chapter 76 provides that the responsibility of the appointing judges "for personnel decisions is limited to the appointment of a department director and a fiscal officer." Id. § 76.0045(a).

Relevant to your first and fourth questions, you tell us that the director of the department "does not perform the functions of a supervision officer in that the director does not supervise persons placed on probation." Request Letter at 4. Given that fact, the director here is not a "supervision officer" under article 42.12. Because the director is not a supervision officer, the district judge's authority under article 42.12, section 9(a), to "direct a supervision officer" to prepare the presentence investigation report does not include the authority to require this director to prepare a presentence investigation report. Accordingly, in answer to these questions, a district judge does not have authority to order the director of the department who does not supervise defendants placed on community supervision to personally conduct a presentence investigation report. Nor does a district judge have authority to order such a director to personally appear in court to present the ordered presentence investigation report.

Your second and third questions relate to a director's authority to delegate the duties that article 42.12, section 9(a) imposes. Request Letter at 2. We first note that article 42.12, section 9(a) does not impose any duties on the director. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(a) (West Supp. 2012). Instead, it imposes a duty on "a supervision officer" to include in the report a description of certain information about the defendant and the offense. Id. § 9(a). Section 76.004 of the Government Code authorizes a director to delegate six duties, none of which is a duty that article 42.12 expressly imposes on a judge or supervision officer. TEX. GOV'T CODE ANN. § 76.004(a-1) (West Supp. 2012). Thus, a director would not have the authority to delegate duties that are assigned to someone else under article 42.12, section 9(a). A director would, however, have the authority to delegate duties that are not assigned to someone else under article 42.12, section 9(a), and that are assigned to him under section 76.004. Presumably, article 42.12, section 9(a), does not list all of the duties involved in the preparation and presentation of a presentence investigation report. Likewise, the responsibility for "overseeing the daily operations of the department" could include decisions involving the preparation and presentment of a report. See id. § 76.004(a-1)(1). Therefore, in answer to your second and third questions, a director may delegate report preparation and presentation duties that article 42.12, section 9(a), does not specifically impose on someone else.

We turn to your last question. Article 42.12, section 9(a) authorizes a judge to "direct a supervision officer" to make the report. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(a) (West Supp. 2012). The indefinite article "a" means "any," and without more, could be construed broadly to authorize a judge to order any of the supervision officers, including a particular one, to prepare the report. See Tex. Att'y Gen. Op. No. GA-0694 (2009) at 1-2 (noting the indefinite article "a" means "any") (citing Chavira v. State, 319 S.W.2d 115, 120 (Tex. Crim. App. 1958)). But as we have already noted, with the exception of the department director and fiscal officer, chapter 76 limits the involvement of a district judge over personnel decisions in the department. In addition, other provisions of article 42.12 suggest that the Legislature knows how to specifically identify personnel whom a judge may direct. See TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 9(h) (West Supp. 2012) ("judge shall direct a supervision officer approved by the community supervision and corrections department or the judge . . . to conduct an evaluation"); 18(d) ("As directed by the judge, the community corrections facility director shall file . . . a copy of [the] evaluation . . . ."); see also Tex. Att'y Gen. Op. No. GA-0880 (2011) at 2 n.3 (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) for the proposition that the Legislature knows how to enact a law effectuating its intent). For these reasons, a district judge likely is not authorized to order a specifically named supervision officer to conduct a presentence investigation report.

SUMMARY

Under article 42.12, section 9(a) of the Code of Criminal Procedure, a district judge does not have authority to order the director of a community supervisions and corrections department ("director") who does not supervise defendants placed on community supervision to personally conduct a presentence investigation report. Nor does a district judge have authority to order such a director to personally appear in court to present the ordered presentence investigation report.

A director may delegate report preparation and presentation duties that article 42.12, section 9(a), does not specifically impose on someone else.

Finally, a district judge likely is not authorized to order a specifically named supervision officer to conduct a presentence investigation report.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] Letter from Hon. Noble D. Walker, Jr., Dist. Att'y, & Hon. Joel Littlefield, Cnty. Att'y, to Hon. Greg Abbott, Tex. Att'y Gen. at 2-3 (Oct. 1, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").