Can a Texas county juvenile board hire its own full-time in-house attorney instead of relying on the district attorney?

Plain-English summary

Dallas County District Attorney Craig Watkins asked the Attorney General whether the Dallas County Juvenile Board could hire a lawyer as a full-time employee to serve as in-house counsel for the board, the county's juvenile department, and the charter school board. At the time, the Civil Division of the Dallas County District Attorney's Office provided that legal counsel.

The AG explained that a juvenile board's authority comes from the general provisions of the Human Resources Code that apply to all juvenile boards plus any special statute written for a particular county. The Dallas County board is governed by its own sections, 152.0631 and 152.0632, which direct it to appoint a director of juvenile services and a chief juvenile probation officer but do not spell out a power to hire an in-house attorney. One general hiring provision that might have covered an attorney, section 152.0008 (which lets the chief juvenile probation officer employ "other necessary personnel"), does not apply to the Dallas County board, because that board's own statute carves it out.

The AG then turned to section 142.002, which lets a juvenile board, with the advice and consent of the commissioners court, employ probation officers and "administrative, supervisory, stenographic, and other clerical personnel" necessary to provide juvenile probation services. That list does not name a legal position, but the AG concluded a court would likely read an in-house attorney as fitting within "administrative," "supervisory," or "clerical." So section 142.002 authorized the board to hire in-house counsel, with the commissioners court's consent, if the board decided the position was necessary to provide juvenile probation services.

The AG also concluded the board had implied authority to hire an in-house lawyer. Political subdivisions have implied power to obtain legal representation unless a constitutional or statutory provision limits it, and the AG found no such limit here. The AG noted that carving the Dallas County board out of section 152.0008 neither prohibited the board from hiring necessary personnel nor limited its other authority, and that neither the commissioners court nor the district attorney was legally obligated to provide the board's legal advice. The bottom line: a court would likely conclude the board may hire a full-time in-house attorney if it determines the position is necessary to fulfill its mandate to provide juvenile probation services.

Currency note

This opinion was issued in 2014. 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

District Attorney Watkins (as the opinion described it): The opinion answered that the Dallas County Juvenile Board could hire a full-time in-house attorney, both under section 142.002 and under the board's implied authority, if the board found the position necessary to provide juvenile probation services. The opinion described the board as legally separate from the county and its commissioners court, and described the district attorney as having no duty to provide the board's general legal advice except on request.

The Dallas County Juvenile Board (as the opinion described it): The opinion described the board's hiring authority as resting on section 142.002 (reading an in-house attorney into "administrative," "supervisory," or "clerical" personnel) and on the board's implied authority to obtain legal representation, in each case conditioned on the board determining the position was necessary to provide juvenile probation services.

County commissioners courts (as the opinion described it): The opinion described the section 142.002 hiring of in-house counsel as requiring the advice and consent of the commissioners court.

Common questions

Could the Dallas County Juvenile Board hire its own staff attorney?
The AG concluded a court would likely hold that it could, hiring an attorney as a full-time employee to provide in-house legal services, if the board determined the position was necessary to provide juvenile probation services.

Why did the AG look at section 142.002 instead of the general "other necessary personnel" hiring statute?
The AG explained that the general provision, section 152.0008, does not apply to the Dallas County board, because the board's own governing statute (section 152.0631(l)) provides that sections 152.0002 through 152.0008 do not apply to it. That left section 142.002 as the operative hiring provision.

Did the board need anyone's permission to hire in-house counsel?
Under section 142.002, the AG explained, the board may employ the listed personnel "with the advice and consent of the commissioners court," so the commissioners court's consent was part of that route.

Where did the "implied authority" to hire a lawyer come from?
The AG explained that political subdivisions have implied authority to obtain legal representation in the absence of constitutional or statutory limitations, and the AG found no provision limiting the board's authority here. Carving the board out of section 152.0008 was neither a prohibition on hiring necessary personnel nor a limit on the board's other authority.

Was the district attorney's office required to keep providing the board's legal advice?
No. The AG noted that neither the Dallas County Commissioners Court nor the Dallas County District Attorney had a legal obligation to provide legal advice and representation to the board, citing that juvenile boards are separate from their counties and that a district attorney gives legal advice to a county or precinct official only on request.

Background and statutory framework

A juvenile board is "a body established by law to provide juvenile probation services to a county" (Tex. Hum. Res. Code Ann. § 201.001(a)(6) (West 2013)). The authority of a particular county juvenile board is determined by the general provisions of the Human Resources Code applicable to all juvenile boards (Tex. Hum. Res. Code Ann. §§ 152.0001-.0016 (West 2013 & Supp. 2014)) as well as any special statute applicable to that county. The AG read the relevant statutes by their plain language, construing words and phrases in context and according to the rules of grammar and common usage (Tex. Gov't Code Ann. § 311.011(a) (West 2013)).

The Dallas County Juvenile Board is established and governed by sections 152.0631 and 152.0632 of the Code (Tex. Hum. Res. Code Ann. §§ 152.0631-.0632 (West 2013)). Section 152.0631 directs the board to appoint a director of juvenile services and a chief juvenile probation officer but does not expressly authorize hiring an in-house attorney (id. § 152.0631(i)). Section 152.0632 makes the director of juvenile services responsible for hiring the department's employees but does not specify the types of employees the director may hire (id. § 152.0632(c)).

Two generally applicable provisions bear on hiring authority. Section 152.0008 authorizes a juvenile board's chief juvenile probation officer to employ assistant officers and "other necessary personnel," a phrase the AG read as broad enough to include an in-house attorney if a board deemed it necessary (id. § 152.0008(a)). But that provision does not apply to the Dallas County board, because section 152.0631(l) provides that sections 152.0002 through 152.0008 "do not apply to the juvenile board of Dallas County." Section 142.002 provides that a juvenile board may, with the advice and consent of the commissioners court, employ probation officers and "administrative, supervisory, stenographic, and other clerical personnel" necessary to provide juvenile probation services (id. § 142.002(a); see id. § 142.001(1)-(2) (defining "juvenile probation services")). Although that list does not expressly name a legal position, the AG concluded a court would likely treat an in-house attorney as an "administrative," "supervisory," or "clerical" position, so section 142.002 authorized the board to hire in-house counsel if it found the position necessary.

On implied authority, the AG applied the principle that an agency has implied powers to the extent reasonably necessary to fulfill its express functions or duties (Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 316 (Tex. 2001)), and the rule that political subdivisions have implied authority to obtain legal representation absent constitutional or statutory limitations (Guynes v. Galveston Cnty., 861 S.W.2d 861, 863-64 (Tex. 1993); Tex. Att'y Gen. Op. Nos. JC-0209 (2000), JC-0047 (1999)). Finding no provision limiting the board's authority, and noting that the section 152.0008 carve-out was neither a prohibition nor a limitation, the AG concluded the board had implied authority to hire an in-house attorney for general legal services if it determined the position was necessary. The AG added that neither the commissioners court nor the district attorney had a legal obligation to provide the board's legal advice and representation, because juvenile boards are separate from their counties and a district attorney gives a county or precinct official legal advice only on request (El Paso Cnty. v. Solorzano, 351 S.W.3d 577, 581 n.2 (Tex. App.-El Paso 2011, no pet.); Tex. Gov't Code Ann. §§ 41.007 (West 2004), 44.157; Guynes v. Galveston Cnty., 861 S.W.2d 861, 864 (Tex. 1993)). The opinion read the board's plain-language authority alongside R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011), and an earlier opinion of the office, Tex. Att'y Gen. Op. No. DM-460 (1997).

Citations

Statutory provisions:

• Tex. Hum. Res. Code Ann. § 201.001(a)(6) (West 2013) (definition of "juvenile board")
• Tex. Hum. Res. Code Ann. §§ 152.0001-.0016 (West 2013 & Supp. 2014) (general provisions governing juvenile boards)
• Tex. Hum. Res. Code Ann. §§ 152.0631-.0632 (West 2013) (Dallas County Juvenile Board)
• Tex. Hum. Res. Code Ann. § 152.0631(i) (appointment of director and chief juvenile probation officer)
• Tex. Hum. Res. Code Ann. § 152.0631(l) (sections 152.0002-.0008 do not apply to the Dallas County board)
• Tex. Hum. Res. Code Ann. § 152.0632(c) (director of juvenile services hires department employees)
• Tex. Hum. Res. Code Ann. § 152.0008(a) ("other necessary personnel")
• Tex. Hum. Res. Code Ann. § 142.002(a) (employment of administrative, supervisory, and clerical personnel)
• Tex. Hum. Res. Code Ann. § 142.001(1)-(2) (definitions of "juvenile probation services")
• Tex. Gov't Code Ann. § 311.011(a) (West 2013) (reading words and phrases in context)
• Tex. Gov't Code Ann. § 41.007 (West 2004) (district attorney advises a county or precinct official on request)
• Tex. Gov't Code Ann. § 44.157 (duties of the Criminal District Attorney of Dallas County)

Cases:

• R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)
• Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 316 (Tex. 2001)
• Guynes v. Galveston Cnty., 861 S.W.2d 861, 863-64 (Tex. 1993)
• El Paso Cnty. v. Solorzano, 351 S.W.3d 577, 581 n.2 (Tex. App.-El Paso 2011, no pet.)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. JC-0209 (2000)
• Tex. Att'y Gen. Op. No. JC-0047 (1999)
• Tex. Att'y Gen. Op. No. DM-460 (1997)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1085
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1085.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

November 10, 2014

The Honorable Craig Watkins Opinion No. GA-1085
Dallas County District Attorney
Frank Crowley Courts Building Re: Authority of the Dallas County Juvenile
133 North Riverfront Boulevard, LB 19 Board to hire an attorney as in-house counsel
Dallas, Texas 75207 (RQ-1198-GA)

Dear Mr. Watkins:

You ask about the hiring authority of the Dallas County Juvenile Board (the "Board").[1] Specifically, you ask whether the Board may hire "an attorney as a full-time employee to provide in-house legal services to the Board, the Juvenile Department and the Charter School Board." Request Letter at 1. You state that the Civil Division of the Dallas County District Attorney's Office currently provides legal counsel to those entities. Id.

A juvenile board is "a body established by law to provide juvenile probation services to a county." TEX. HUM. RES. CODE ANN. § 201.001(a)(6) (West 2013). The authority of a particular county juvenile board is determined by general provisions of the Human Resources Code (the "Code") applicable to all juvenile boards, as well as any special statute applicable to that county. See generally id. §§ 152.0001-.0016 (West 2013 & Supp. 2014) (general provisions governing juvenile boards), 152.0071-.2571 (provisions applicable to specific counties); Tex. Att'y Gen. Op. No. DM-460 (1997) at 1. In examining the statutory authority of the Board we look to the statute's plain language. See R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011). "Words and phrases are read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE ANN. § 311.011(a) (West 2013).

The Dallas County Juvenile Board is established and governed by sections 152.0631 and 152.0632 of the Code. TEX. HUM. RES. CODE ANN. §§ 152.0631-.0632 (West 2013). Among other things, section 152.0631 directs the Board to appoint a director of juvenile services and a chief juvenile probation officer, but it does not expressly authorize the Board to hire an in-house attorney or any employee to provide legal services. Id. § 152.0631(i). Section 152.0632 provides that the director of juvenile services shall hire the employees of the juvenile probation department and of the county institutions and facilities and programs under the jurisdiction of the juvenile board. Id. § 152.0632(c). Section 152.0632 does not, however, specify the types of employees the director of juvenile services may hire; it merely establishes that the hiring of department employees is the responsibility of the director of juvenile services.

Two generally applicable provisions in the Code relate to the hiring authority of juvenile boards. The first provision, section 152.0008, authorizes the chief juvenile probation officer of a juvenile board to employ assistant officers and "other necessary personnel." Id. § 152.0008(a). The phrase "other necessary personnel" in section 152.0008 encompasses a broad range of possible employment positions that could include an in-house attorney should a juvenile board deem it necessary. However, by the express terms of the Board's creation statute, section 152.0008 does not apply to the Board. See id. § 152.0631(l) (providing that sections 152.0002 through 152.0008 "do not apply to the juvenile board of Dallas County").

The second provision, section 142.002, provides that

[a] juvenile board may, with the advice and consent of the commissioners court, employ probation officers and administrative, supervisory, stenographic, and other clerical personnel necessary to provide juvenile probation services according to the standards established by the Texas Juvenile Probation Commission[2] and the local need as determined by the juvenile board.

Id. § 142.002(a) (footnote added). Subsection 142.002(a) does not expressly provide for the hiring of a legal position. Nevertheless, a court would likely conclude that an in-house attorney qualifies as an "administrative," "supervisory," or "clerical" position. Thus, section 142.002 authorizes the Board to hire an in-house counsel, with the advice and consent of the commissioners court, if the Board determines that the position is "necessary to provide juvenile probation services." Id.; see also id. § 142.001(1)-(2) (providing two definitions of "juvenile probation services").

You suggest that the Board may also have implied authority to hire an in-house attorney. Request Letter at 2. An agency has implied powers to the extent they are reasonably necessary to fulfill its express functions or duties. Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 316 (Tex. 2001). You direct us to a previous opinion of this office concluding that a juvenile board had the implied authority to retain private counsel to represent the board in litigation. Request Letter at 2; see Tex. Att'y Gen. Op. No. JC-0209 (2000) at 1-4. Although the juvenile board in that opinion sought to hire a different kind of position—a contract attorney for a specific legal matter as opposed to a full-time, in-house attorney—the conclusion was based on the general principle that political subdivisions have the implied authority to obtain legal representation in the absence of constitutional or statutory limitations. Tex. Att'y Gen. Op. No. JC-0209 (2000) at 3; see Guynes v. Galveston Cnty., 861 S.W.2d 861, 863-64 (Tex. 1993); see also Tex. Att'y Gen. Op. No. JC-0047 (1999) at 2-3. As with the Board, the juvenile board in that opinion did not have the benefit of the general hiring authority provided under section 152.0008. See Tex. Att'y Gen. Op. No. JC-0209 (2000) at 2 (citing the provision of the juvenile board's specific governing statute stating that subsection 152.0008(a) does not apply).

We are unaware of any constitutional or statutory provision that would limit the Board's implied authority to obtain legal representation. Moreover, the fact that section 152.0008 applies to some county juvenile boards, but not to the juvenile board of Dallas County, constitutes neither a prohibition against hiring necessary personnel nor a limitation on any other authority the Board may have. Therefore, a court would likely conclude that, in addition to the authority provided by subsection 142.002(a), the Board has the implied authority to hire an in-house attorney for the provision of general legal services if the Board determines that the position is necessary in order to provide juvenile probation services.[3]

SUMMARY

A court would likely conclude that the Dallas County Juvenile Board may hire an attorney as a full-time employee to provide in-house legal services if the Board determines that the position is necessary to fulfill its legislative mandate to provide juvenile probation services.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Craig Watkins, Dallas Cnty. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (May 9, 2014), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] The Texas Juvenile Probation Commission was abolished in 2011 and replaced with the Texas Juvenile Justice Department. See Act of May 5, 2011, 82nd Leg., R.S., ch. 85, § 4.001, 2011 Tex. Gen. Laws 366, 341.

[3] This conclusion is consistent with the fact that neither the Dallas County Commissioners Court nor the Dallas County District Attorney has a legal obligation to provide legal advice and representation to the Board. See El Paso Cnty. v. Solorzano, 351 S.W.3d 577, 581 n.2 (Tex. App.-El Paso 2011, no pet.) ("Juvenile boards in Texas are ... separate and apart from their counties and commissioners courts."); TEX. GOV'T CODE ANN. §§ 41.007 (West 2004) (providing that a district attorney shall give legal advice to a county or precinct official, but only on request), 44.157 (establishing the duties of the Criminal District Attorney of Dallas County); see also Guynes v. Galveston Cnty., 861 S.W.2d 861, 864 (Tex. 1993) (stating that district attorneys have no legal duty "to represent the county in its general legal business or the conduct of ordinary civil actions") (citations omitted).