Office of the Attorney General
Mr. Don R. Stiles
Opinion No. MW-379
Re: Use of district adult probation funds to provide services to the court of probation officers
Dear Mr. Stiles:
You ask the following question concerning the use of district adult probation funds:
Prior to the defendant being found guilty, may district adult probation funds be used under current law to provide services to the court by probation officers interviewing the defendant, advising him/her on the conditions of probation, the expectations of the court in the event that probation is granted, and to prepare the necessary paperwork and the written conditions of probation for the court, and/or to provide to the court a pre-sentence investigation report as contemplated in section 4 of article 42.12 and section 4 of article 42.13 of the Code of Criminal Procedure?
The district adult probation fund is a special fund in the county treasury into which is deposited state aid received from the Texas Adult Probation Commission and fees collected from probationers. Code Crim. Proc. art. 42.12, s 6a; art. 42.121, s 4.05(b).
The purposes of the Texas Adult Probation Commission include improving the effectiveness of probation services, providing funds for the establishment and improvement of probation services, and establishing uniform probation administration standards. Code Crim. Proc. art. 42.121, s 1.01.
Although Attorney General Opinion H-1283 (1978) termed probation a 'post- trial' procedure, that opinion addressed the question of whether the Texas Adult Probation Commission could provide financial assistance to pre-trial release programs. The opinion properly determined that pre-trial release programs are not related to probation under article 42.12, section 2 and article 13, section 2 of the Code of Criminal Procedure. The services you mention, however, are related to probation. We believe that such services may be efficiently carried out by the probation officer before the guilt and innocence phase of the trial.
For example, section 4 of article 42.12 and section 4 of article 42.13 both read in part:
When directed by the court, a probation officer shall fully investigate and report to the court in writing the circumstances of the offense, criminal record, social history and present condition of the defendant.
The statutory language does not establish a specific time for the investigation and report. Rather, these are provided '[w]hen directed by the court.' This investigation and report can be accomplished either before or after trial.
Also, in light of the stated purposes of the act establishing the Texas Adult Probation Commission, the specific services you ask about seem to be included in the commission's statutory mandate to improve the effectiveness of probation services. We feel that these duties may be carried out before the guilt and innocence phase of the trial.
District adult probation funds may be used to provide certain services related to probation before the guilt and innocence phase of the trial.
Very truly yours,
Attorney General of Texas
John W. Fainter, Jr.
First Assistant Attorney General
Richard E. Gray III
Executive Assistant Attorney General
Prepared by Dawn Bruner
Assistant Attorney General