Who hires staff for a Texas veterans treatment court, the judge or the county?

Plain-English summary

The Bexar County Criminal District Attorney asked the AG to settle a turf fight. The county commissioners court and the judge of a veterans treatment court disagreed over who gets to direct, supervise, and select the project director and staff of the veterans treatment court program created under chapter 124 of the Government Code. The DA asked whether the commissioners court could control the administrative details, including hiring and supervising grant-funded personnel, and whether chapter 124 limits the judge's role to deciding the cases that come before the court.

The AG read chapter 124 in the context of the specialty-court statutes around it. Chapter 124 lets a commissioners court establish a veterans treatment court program, and it defines the program by listing eleven essential characteristics and assigns the program duties, but it does not spell out a staffing structure or say who hires and supervises employees. Because a commissioners court is the administrative head of county government with broad implied powers, when it sets up the program it may create the positions and provide the funding needed to meet chapter 124's requirements. That answered half the dispute, but creating and funding positions is not the same as choosing and supervising the people who fill them.

On that second question, the AG looked at what the program is. A "veterans treatment court program" is, by its name, a program of the veterans treatment court, and chapter 124 folds the court's own duties (ongoing judicial interaction with participants, ordering individualized treatment plans, holding dismissal hearings) into the program's definition. That shows the program performs or assists a judicial function. Courts have general statutory authority to appoint the staff they need and inherent authority to select the people who help them carry out their work. Putting it together, the AG concluded that while the commissioners court creates positions and provides funding, the veterans treatment court judge, not the commissioners court, is authorized to select and supervise the program's staff. The commissioners court may not use its budget power to take over personnel choices that belong to the judge.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG 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

The requesting district attorney (as the opinion described it): The opinion answered both questions: chapter 124 gives the commissioners court authority to create and fund positions, but it is the veterans treatment court judge, not the commissioners court, who selects and supervises the program's staff.

County commissioners courts (as the opinion described them): The opinion explained that a commissioners court establishing a program may create the staff positions and provide funding needed to satisfy chapter 124, but must exercise that discretion consistently with the constitution and chapter 124 and may not usurp duties belonging to the veterans treatment court judge.

Veterans treatment court judges (as the opinion described them): The opinion explained that because the program performs or assists a judicial function, the judge holds the authority to select and supervise its staff, drawing on courts' general statutory appointment authority and their inherent authority to choose personnel who aid the court's work.

Common questions

Can the county refuse to fund a veterans treatment court position?
The opinion said the commissioners court has discretion over creating positions and providing funding when it establishes the program, so the funding decision sits with the county, exercised consistently with chapter 124.

Once a position is funded, who picks the person?
The veterans treatment court judge, under this opinion. The AG concluded the judge, not the commissioners court, selects and supervises the program's staff.

Does this apply to grant-funded staff too?
Yes. The question put to the AG was specifically about grant-funded personnel, and the opinion's conclusion (the judge selects and supervises staff) was not limited to a particular funding source.

Why does the judge control staffing if the county pays?
The opinion explained that the program is by its name a program of the court and performs a judicial function, and that courts have general and inherent authority to select the people who help them do their work. The power of the purse does not transfer the personnel choice to the county.

Background and statutory framework

Chapter 124 of the Government Code sits in title 2, subtitle K, which governs specialty court programs such as drug courts and mental health courts (Tex. Gov't Code §§ 121.001-126.008). It authorizes a county commissioners court to establish a veterans treatment court program individually or regionally (Tex. Gov't Code §§ 124.002(a), .004(a)), defines the program by eleven essential characteristics (Tex. Gov't Code § 124.001(a)(1)-(11)), and assigns the program duties such as ensuring counsel and an individualized treatment plan (Tex. Gov't Code § 124.003(a)(1), (3)). As a subtitle K specialty court, the program must comply with best practices recommended by the Specialty Courts Advisory Council and approved by the Texas Judicial Council (Tex. Gov't Code §§ 121.002(d)(1), 772.0061(b)(2)). Chapter 124 does not set a staffing structure or address employment.

Because a commissioners court is the administrative head of county government with broad implied powers to accomplish its duties, it may create positions and provide funding to satisfy chapter 124 (City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003); Guynes v. Galveston Cty., 861 S.W.2d 861, 863 (Tex. 1993)), construing the statute in its broader scheme (LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011)). But chapter 124 folds the court's duties (ongoing judicial interaction, individualized treatment plans, jurisdiction and dismissal hearings) into the program's definition and duties, showing the program performs or assists a judicial function (Tex. Gov't Code §§ 124.001(a)-(b), 124.001(a)(7), 124.001(b), 124.003(a)(3), 124.003(a)(4)). Courts hold general statutory authority to appoint needed staff (Tex. Gov't Code §§ 74.103, 25.0010(e)) and inherent authority to select personnel who aid the exercise of their jurisdiction (Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979); Comm'rs Ct. of Lubbock Cty. v. Martin, 471 S.W.2d 100, 110 (Tex. Civ. App.—Amarillo 1971, writ ref'd n.r.e.); Tex. Att'y Gen. Op. No. GA-1032 (2013)). The AG noted that when the Legislature wants the commissioners court to share in selecting judicial personnel it says so expressly (Tex. Gov't Code §§ 25.0024(a), 54.301, 54.1803(a)), and that chapter 124's silence does not give that role to the county. The opinion concluded the judge selects and supervises the program's staff (Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.—Austin 1997, writ denied)), and noted a pending Texas Supreme Court review touching on inherent judicial authority (Henry v. Cox, 483 S.W.3d 119, 146-47 (Tex. App.—Houston [1st Dist.] 2015, pet. granted)).

Citations

Statutes:

• Tex. Gov't Code §§ 121.001-126.008, 124.002(a), .004(a), 124.001(a)(1)-(11), 124.001(a)-(b), 124.001(a)(7), 124.001(b), 124.003(a)(1), (3), 124.003(a)(3), 124.003(a)(4), 121.002(d)(1), 772.0061(b)(2), 74.103, 25.0010(e), 25.0024(a), 54.301, 54.1803(a)

Cases:

• LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73 (Tex. 2011)
• City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)
• Guynes v. Galveston Cty., 861 S.W.2d 861 (Tex. 1993)
• Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979)
• Comm'rs Ct. of Lubbock Cty. v. Martin, 471 S.W.2d 100 (Tex. Civ. App.—Amarillo 1971, writ ref'd n.r.e.)
• Abbott v. Pollock, 946 S.W.2d 513 (Tex. App.—Austin 1997, writ denied)
• Henry v. Cox, 483 S.W.3d 119 (Tex. App.—Houston [1st Dist.] 2015, pet. granted)

Other authority:

• Tex. Att'y Gen. Op. No. GA-1032 (2013)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0146
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0146.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 8, 2017

The Honorable Nicholas "Nico" LaHood Opinion No. KP-0146
Bexar County Criminal District Attorney
Paul Elizondo Tower Re: Authority of a county commissioners court
101 West Nueva, 7th floor that establishes a veterans treatment court
San Antonio, Texas 78205-3030 program under Government Code chapter 124
to direct and control administrative details
including the hiring and supervision of grant-
funded personnel (RQ-0139-KP)

Dear Mr. LaHood:

    You ask about the authority of a county commissioners court that establishes a veterans treatment court program under Government Code chapter 124 to direct and control the administrative details of the program including the hiring and supervision of grant-funded personnel. [1] You further ask whether chapter 124 limits a treatment court judge's role to the direction and control of the disposition of the cases coming before the court and thus does not include the supervision of grant-funded personnel. Request Letter at 1. Your questions arise out of a dispute between the commissioners court and the judge of a veterans treatment court over who the law authorizes to direct, supervise, and select the project director and staff of the veterans treatment court program. Id. at 2-4.

     We construe statutes in the context of their statutory scheme. LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011) (stating that courts "give unambiguous text its ordinary meaning, aided by the interpretive context provided by the surrounding statutory landscape" (quotation marks omitted)). Chapter 124 is located in title 2, subtitle K of the Government Code, which governs several types of specialty court programs such as drug court programs and mental health court programs. See TEX. GOV'T CODE §§ 121.001-126.008 (subtitle K). Chapter 124 authorizes a county commissioners court to establish a veterans treatment court program, either for the county individually or as a participant in a regional veterans treatment court program. Id. §§ 124.002(a), .004(a). Section 124.001 defines "veterans treatment court program" by listing the essential characteristics that the program must possess:

           (1) the integration of services in the processing of cases in the judicial system;

           (2) the use of a nonadversarial approach involving prosecutors and defense attorneys to promote public safety and to protect the due process rights of program participants;

           (3) early identification and prompt placement of eligible participants in the program;

           (4) access to a continuum of alcohol, controlled substance, mental health, and other related treatment and rehabilitative services;

           (5) careful monitoring of treatment and services provided to program participants;

           (6) a coordinated strategy to govern program responses to participants' compliance;

           (7) ongoing judicial interaction with program participants;

           (8) monitoring and evaluation of program goals and effectiveness;

           (9) continuing interdisciplinary education to promote effective program planning, implementation, and operations;

           (10) development of partnerships with public agencies and community organizations, including the United States Department of Veterans Affairs; and

           (11) inclusion of a participant's family members who agree to be involved in the treatment and services provided to the participant under the program.

Id. § 124.001(a)(1)-(11). Section 124.003 assigns duties to a veterans treatment court program, requiring the program to ensure that an eligible defendant receives legal counsel and a court-ordered individualized treatment plan, among other duties. Id. § 124.003(a)(1), (3). [2]

    Chapter 124 does not, however, delineate a particular structure for a veterans treatment court program and does not address the employment of staff. The chapter does not specify the authority or duties of a commissioners court beyond its general authority to establish a veterans treatment court program. A commissioners court "has the implied authority to exercise the power necessary to accomplish its assigned duty." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). "As the administrative head of county government, a commissioners court also possesses broad implied powers to accomplish its legitimate directives." Guynes v. Galveston Cty., 861 S.W.2d 861, 863 (Tex. 1993). Thus, when a commissioners court establishes a veterans treatment court program, it may exercise its discretion to include those positions and funding necessary to comply with the statutory definition and duties required in chapter 124. However, the fact that a commissioners court may create positions in a veterans treatment court program does not resolve whether the commissioners court may select and supervise the staff of a veterans treatment court program. [3] The commissioners court must exercise its discretion consistently with the constitution and chapter 124 and may not usurp duties assigned to other officials such as the veterans treatment court judge. See Guynes, 861 S.W.2d at 863.

    Chapter 124's provisions describe a "veterans treatment court" and a "veterans treatment court program" as distinct concepts without expressly specifying the court's authority with respect to the program. See TEX. GOV'T CODE § 124.001(a)-(b) (defining "veterans treatment court program" and requiring a "veterans treatment court" to make a determination with respect to dismissal of a criminal case). However, a veterans treatment court program is, by its very name, a program of the veterans treatment court. The veterans treatment court program must ensure "ongoing judicial interaction with program participants." Id. § 124.001(a)(7). The veterans treatment court must order an individualized treatment plan for participants. Id. § 124.003(a)(3). The court must maintain jurisdiction for at least six months but not longer than the period of community supervision applicable to the offense charged and must conduct a hearing to determine whether dismissal of pending criminal charges against the participant is in the best interest of justice. Id. §§ 124.001(b), .003(a)(4). Chapter 124's inclusion of the court's duties within the definition and duties of a veterans treatment court program reveals that such a program performs or assists the performance of a judicial function.

    While chapter 124 does not expressly address a court's authority to specify who may select and supervise program staff, a court possesses general authority to "appoint appropriate staff and support personnel according to the needs in each county." Id. § 74.103; see also id. § 25.0010(e) (authorizing statutory county court judges to "appoint the personnel necessary for the operation of the court, including a court coordinator or administrative assistant, if the commissioners court has approved the creation of the position"). In addition, a court has inherent authority, "which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity." Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979). Courts have inherent authority to select staff to assist the court in the performance of judicial duties. Id. at 398 n.1; Comm'rs Ct. of Lubbock Cty. v. Martin, 471 S.W.2d 100, 110 (Tex. Civ. App.—Amarillo 1971, writ ref'd n.r.e.) (concluding that a court may select probation officers); Tex. Att'y Gen. Op. No. GA-1032 (2013) at 4 (concluding that court has authority to select a bailiff under section 74.103 of the Government Code and its inherent authority as a court). [4] Accordingly, while chapter 124 of the Government Code grants a county commissioners court authority to create staff positions and provide funding when it establishes a veterans treatment court program, the veterans treatment court judge, not the commissioners court, is authorized to select and supervise the staff of a veterans treatment court program. See Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex. App.—Austin 1997, writ denied) (stating "[t]he limitations on the powers of the Commissioners Court are founded in the policy that elected officers ... discharge the public trust and carry the responsibility for the proper discharge of that trust, and therefore, should be free to select persons of their own choice to assist them").

                                SUMMARY

                  Chapter 124 of the Government Code grants a county commissioners court authority to create staff positions and provide funding when it establishes a veterans treatment court program. However, the chapter authorizes the veterans treatment court judge, not the commissioners court, to select and supervise the staff of a veterans treatment court program.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Nicholas "Nico" LaHood, Bexar Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-4 (Nov. 3, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] As a specialty court under subtitle K, a veterans treatment court program must comply with all programmatic best practices recommended by the Specialty Courts Advisory Council under subsection 772.0061(b)(2) of the Government Code and approved by the Texas Judicial Council. TEX. GOV'T CODE §§ 121.002(d)(1), 772.0061(b)(2).

[3] You argue that veterans treatment courts are not authorized to select staff because when the Legislature "has vested courts with authority over the hiring and supervision of court personnel, it has done so explicitly." Request Letter at 7. By the same token, however, the Legislature has demonstrated that it knows how to expressly give a commissioners court a role in the selection of judicial personnel. See, e.g., TEX. GOV'T CODE §§ 25.0024(a) ("A judge of a statutory probate court shall hire with the approval of the commissioners court through the county budget process a court coordinator, an administrative assistant, and an auditor for the court."), 54.301 (authorizing certain judges in Dallas County to appoint a magistrate "with the consent and approval of the Commissioners Court"), 54.1803(a) (authorizing certain judges "with the consent and approval of the commissioners court" to appoint magistrates for drug court programs). Chapter 124's silence on appointment authority does not illuminate the Legislature's intent.

[4] See also Henry v. Cox, 483 S.W.3d 119, 146-47 (Tex. App.—Houston [1st Dist.] 2015, pet. granted) (upholding temporary injunction reinstating a county director of judicial administration). The Texas Supreme Court has granted a petition for review in Henry, which includes issues concerning the scope of inherent judicial authority. See Pet. for Review at 10-15, Henry v. Cox, 2016 WL 689851 (Tex. filed Feb. 5, 2016) (No. 15-0993).