Can a Texas constitutional county judge help manage the community supervision and corrections (probation) department?

Plain-English summary

The Trinity County Attorney asked whether a constitutional county judge who tries misdemeanor criminal cases is entitled to take part in managing the county's community supervision and corrections department, the agency that handles probation. The Attorney General concluded that such a judge is not.

Chapter 76 of the Government Code requires the district judges trying criminal cases in each judicial district to establish a community supervision and corrections department, which employs a director and staff to run presentence investigations, supervise and rehabilitate people on community supervision, enforce its conditions, and operate community corrections facilities. Section 76.002(b) names the judges who get to participate in managing the department: the district judges trying criminal cases and the judges of statutory county courts trying criminal cases that the department serves.

The answer turned on what "judges of statutory county courts" means. For title 2 of the Government Code, section 21.009 defines a "statutory county court" as a county court the Legislature creates under article V, section 1 of the Texas Constitution (county courts at law, county criminal courts, and the like) and separately defines "county court" as the court created in each county by article V, section 15. The constitutional county court is excluded from the statutory-county-court definition. So a constitutional county judge, even one trying misdemeanors, is not a judge of a statutory county court and is not among the judges entitled to participate in managing a community supervision and corrections department.

Currency note

This opinion was issued in 2002. 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. The Government Code sections discussed here may have been amended since 2002, so confirm the current text of sections 21.009 and 76.002 before relying on the result.

What the opinion meant for those who asked

The Trinity County Attorney (what the opinion held): The opinion concluded that a constitutional county judge (the article V, section 15 county court) is not a judge of a statutory county court for purposes of title 2 of the Government Code, and so is not included among the judges entitled to participate in managing a community supervision and corrections department under section 76.002(b), even when the judge tries misdemeanor criminal matters.

District judges and statutory county court judges (what the opinion held for them): The opinion confirmed that section 76.002(b) limits management participation to the district judges trying criminal cases and the judges of statutory county courts (those the Legislature created under article V, section 1) trying criminal cases served by the department.

Common questions

Does a constitutional county judge help run the probation department?
The opinion concluded no. Section 76.002(b) of the Government Code limits management participation to district judges and statutory county court judges trying criminal cases, and a constitutional county court is not a statutory county court.

What is the difference between a constitutional county court and a statutory county court?
The opinion explained that the Government Code defines a "county court" as the court created in each county by article V, section 15 of the Texas Constitution, and a "statutory county court" as one the Legislature creates under article V, section 1 (county courts at law, county criminal courts, and similar courts). The two are defined separately, and the constitutional county court is excluded from the statutory-county-court category.

Does it matter that the county judge tries misdemeanor cases?
No. The opinion concluded that trying misdemeanor criminal matters does not change the result, because the statute keys participation to the type of court, and a constitutional county court is not a statutory county court regardless of the cases it hears.

Background and statutory framework

Chapter 76 of the Government Code directs the district judges trying criminal cases in each judicial district to establish a community supervision and corrections department and to employ a director and personnel to conduct presentence investigations, supervise and rehabilitate defendants on community supervision, enforce its conditions, and staff community corrections facilities. Tex. Gov't Code Ann. §§ 76.002(a)(1), (a)(2), .004 (Vernon 1998). Section 76.002(b) provides that "[t]he district judges trying criminal cases and judges of statutory county courts trying criminal cases that are served by a community supervision and corrections department are entitled to participate in the management of the department." Id. § 76.002(b).

The result followed from the title 2 definitions. Section 21.009 defines a "statutory county court" as "a county court created by the legislature under Article V, Section 1, of the Texas Constitution, including county courts at law, county criminal courts, county criminal courts of appeals, and county civil courts at law, but does not include statutory probate courts as defined by Section 3, Texas Probate Code." Id. § 21.009(2) (Vernon Supp. 2001). It separately defines "county court" as "the court created in each county by Article V, Section 15, of the Texas Constitution." Id. § 21.009(1). Because the constitutional county court is excluded from the statutory-county-court definition, its judge is not within the group of judges entitled to participate in managing a department under section 76.002.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, § 1
• Tex. Const. art. V, § 15
• Tex. Gov't Code Ann. § 76.002(a)(1), (a)(2), (b) (Vernon 1998)
• Tex. Gov't Code Ann. § 76.004
• Tex. Gov't Code Ann. § 21.009(1)
• Tex. Gov't Code Ann. § 21.009(2) (Vernon Supp. 2001)
• Tex. Probate Code § 3

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0452
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0452.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

January 14, 2002

The Honorable Joe Warner Bell
Trinity County Attorney
P.O. Box 979
Groveton, Texas 75845

Opinion No. JC-0452

Re: Whether constitutional county law judges who try misdemeanor criminal matters are entitled to participate in the management of community supervision and corrections departments under section 76.002 of the Government Code (RQ-0433-JC)

Dear Mr. Bell:

You ask whether constitutional county law judges who try misdemeanor criminal matters are entitled to participate in the management of community supervision and corrections departments under section 76.002 of the Government Code.[1] We conclude that they are not.

Chapter 76 of the Government Code charges the district judges trying criminal cases in each judicial district to establish a community supervision and corrections department. See Tex. Gov't Code Ann. § 76.002(a)(1) (Vernon 1998). The judges must employ a department director and district personnel to conduct presentence investigations, to supervise and rehabilitate defendants placed on community supervision, to enforce conditions of community supervision, and to staff community corrections facilities. See id. §§ 76.002(a)(2), .004.

You ask which judges participate in the management of these departments, particularly whether constitutional county law judges who try misdemeanor criminal matters do so. See Request Letter, supra note 1. The group of judges who participate in the management of a department is established by section 76.002(b) of the Government Code, which provides:

The district judges trying criminal cases and judges of statutory county courts trying criminal cases that are served by a community supervision and corrections department are entitled to participate in the management of the department.

Tex. Gov't Code Ann. § 76.002(b) (emphasis added). The answer to your question turns on the meaning of "judges of statutory county courts" in this provision.

Chapter 76 is located in title 2 of the Government Code. For purposes of title 2, section 21.009 of the Government Code defines the term "statutory county court" as

a county court created by the legislature under Article V, Section 1, of the Texas Constitution, including county courts at law, county criminal courts, county criminal courts of appeals, and county civil courts at law, but does not include statutory probate courts as defined by Section 3, Texas Probate Code.

Id. § 21.009(2) (Vernon Supp. 2001). "County court" is separately defined in section 21.009 as "the court created in each county by Article V, Section 15, of the Texas Constitution," id. § 21.009(1), and is clearly excluded from the definition of "statutory county court," see id.

Again, the judges entitled to participate in the management of a department under section 76.002(b) of the Government Code include district judges trying criminal cases and judges of statutory county courts trying criminal cases. See id. § 76.002(b) (Vernon 1998). The latter category includes judges of any "county court created by the legislature under Article V, Section 1, of the Texas Constitution," id. § 21.009(2) (Vernon Supp. 2001) trying criminal cases. A judge of a county court established under article V, section 15 of the Texas Constitution is not a judge of a statutory county court, see id. § 21.009(1), and therefore is not included in the group of judges entitled to participate in the management of a department under section 76.002.

                                    SUMMARY

            A judge of a county court established under article V, section 15 of the Texas Constitution is not a judge of a statutory county court for purposes of title 2 of the Government Code and therefore is not included in the group of judges entitled to participate in the management of a community supervision and corrections department under section 76.002(b) of the Government Code.

                                          Yours very truly,

                                          JOHN CORNYN
                                          Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee