Who has to transport juveniles between detention and court, and can the county judge order the sheriff to do it?

Texas AG Opinion DM-0087: Transporting Juveniles to Court and Paying For It

Plain-English summary

The Frio County Attorney explained a practical problem. The county's juvenile court sits in Pearsall, but its juvenile detention center is about 40 miles away in Jourdanton, in another county. A juvenile scheduled to appear has to be driven to court by a peace officer, and a female juvenile must be accompanied by an adult female. For years one constable had shouldered the job, and he wanted the commissioners court to make the other constables share it. The county attorney asked three questions.

First, who is responsible for transporting juvenile defendants? The Attorney General concluded that no statute fixes a mandatory transportation duty on any person or office. The case is started by a prosecutor, the court issues summons to the child, and Family Code section 53.07(d) lets the court authorize paying, from the county's general funds, the costs of service and the necessary travel expenses of people summoned or required to appear. The opinion read that as broad enough to cover the travel expenses of a law enforcement officer who has to accompany a juvenile to a hearing. But that is about who pays, not who is required to do the driving.

Second, can the county judge order the sheriff or constables (or their deputies) to transport juveniles or act as bailiff in juvenile court? No. Those duties are not on the statutory list for either office. A constable must attend justice court in his precinct, but neither the sheriff nor a constable has a juvenile-court duty. A 1973 opinion had said a sheriff transports adult prisoners under the Code of Criminal Procedure, but juvenile proceedings are civil, and criminal procedure does not apply to them (Family Code section 51.17). Since the sheriff and constable are independently elected and no statute or constitutional provision gives the county judge this power, the judge cannot compel them.

Third, can the commissioners court spend money on transportation that was not in the annual budget? For a county under 225,000 population, after the budget is approved, funds may be spent only in strict compliance with it, except in an emergency. The court may amend the budget for an emergency expenditure only on a finding of "grave public necessity to meet an unusual and unforeseen condition" that diligent thought could not have anticipated, a finding that is largely factual (and the opinion noted that in the one reported case, Bexar County v. Hatley, the court rejected the commissioners' finding). Alternatively, the court may transfer the needed amount from another budgeted item without declaring an emergency.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Family Code juvenile provisions, the Human Resources Code juvenile-board sections, and the county-budget statute have all been amended and renumbered since 1992, including the population thresholds. Verify current law before relying on any section number, dollar figure, or procedure mentioned here.

Common questions

Whose job is it to drive a juvenile from detention to court?
Under this opinion, no statute makes it anyone's mandatory job. The court can authorize paying the necessary travel expenses of an officer who has to accompany a juvenile (Family Code section 53.07(d)), but that addresses funding, not a duty to transport.

Can the county judge just order the sheriff to do it?
No. Transporting juveniles and serving as juvenile-court bailiff are not statutory duties of the sheriff or constables, who are independently elected. The opinion found no authority for a county judge to compel them, especially since juvenile proceedings are civil and the criminal-procedure transport rules do not apply.

Does it matter that juvenile cases are civil?
Yes. The opinion pointed out that a sheriff's duty to move adult prisoners comes from the Code of Criminal Procedure, and criminal procedure has no application to juvenile court (Family Code section 51.17). So that adult-prisoner rule does not carry over to juveniles.

How can a small county pay for transportation it did not budget?
Either by transferring money from another budgeted item, or by amending the budget for an emergency expenditure, which requires the commissioners court to find a "grave public necessity to meet an unusual and unforeseen condition." That finding is largely factual and can be second-guessed by a court.

Background and statutory framework

Frio County's juvenile board consists of the county judge and the two district judges whose districts include the county (Hum. Res. Code § 152.0881). The juvenile-court procedure provisions are in the Family Code: § 53.04(a) (prosecutor initiates the case), § 53.06(a) (summons to the child), and § 53.07(d) (court may authorize payment of service costs and necessary travel expenses from county general funds). Family Code § 51.17 makes criminal procedure inapplicable to juvenile cases, distinguishing the sheriff's adult-prisoner transport duty under Code Crim. Proc. art. 2.18 (discussed in Attorney General Opinion H-169 (1973)). County budgeting for counties under 225,000 population is governed by subchapter A of chapter 111 of the Local Government Code; § 111.010(b) requires strict compliance with the adopted budget except in an emergency, § 111.010(c) allows an emergency amendment on a "grave public necessity" finding, and § 111.010(d) allows transfers from other budgeted items. The opinion cited Bexar County v. Hatley, 150 S.W.2d 980 (Tex. 1941), along with Attorney General Opinions O-5184 (1943), O-4127 (1941), and O-2498 (1940). A footnote noted that the general juvenile-board expense provision (Hum. Res. Code § 152.0014) is made inapplicable to Frio County by § 152.0881(c).

Citations

Statutory provisions:

• Hum. Res. Code § 152.0881 (Frio County juvenile board) and § 152.0014 (juvenile-board expenses)
• Family Code § 53.04(a), § 53.06(a), § 53.07(d) (juvenile-court initiation, summons, and travel-expense payment)
• Family Code § 51.17 (criminal procedure inapplicable to juvenile cases)
• Code Crim. Proc. art. 2.18 (sheriff's custody of prisoners)
• Local Gov't Code § 111.010 (county budget compliance, emergency amendment, and transfers)

Cases:

• Bexar County v. Hatley, 150 S.W.2d 980 (Tex. 1941)

Prior Attorney General opinions discussed: H-169 (1973), O-5184 (1943), O-4127 (1941), O-2498 (1940).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0087
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0087.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

February 6, 1992

Honorable James Warren Smith, Jr.
Frio County Attorney
P. O. Box 1138
Pearsall, Texas 78061-1138

Opinion No. DM-87

Re: Responsibility for transporting juveniles between juvenile court and the county's juvenile detention center, and related questions (RQ-35)

Dear Mr. Smith:

You have requested our opinion as to the responsibility for transporting juveniles between the Frio County Juvenile Court and the county's juvenile detention center. Frio County has a juvenile board consisting of the Frio County judge and the two district judges whose districts encompass Frio County. See Hum. Res. Code § 152.0881. The juvenile court of Frio County sits in the town of Pearsall, but the county's juvenile detention center is located in Jourdanton, Atascosa County, about 40 miles distant. You state that a juvenile who is scheduled to appear in court must be transported from the detention facility by a peace officer, and in the case of a juvenile female, an adult female must accompany the party. You indicate that one constable has for many years assumed this burden, and that he is now requesting the commissioners court to require the other constables to share such duties. You first ask who is responsible for the transportation of defendants to and from juvenile court.

No statute fixes any mandatory responsibility on any person or entity for the transportation of juvenile defendants. A proceeding against a child alleged to have engaged in delinquent conduct or in conduct indicating a need for supervision must be initiated in juvenile court by a prosecuting attorney. Family Code § 53.04(a). The court is required to direct issuance of summons to, inter alia, "the child named in the petition." Id. § 53.06(a). Section 53.07(d) of the Family Code provides that

[t]he court may authorize payment from the general funds of the county of the costs of service and of necessary travel expenses incurred by persons summoned or otherwise required to appear at the hearing.

In our opinion, this provision is sufficiently broad to encompass the transportation expenses of a law enforcement officer required to accompany a juvenile to a hearing.[1]

You also ask whether the Frio County judge may compel the sheriff or constables, or their deputies, either to transport juveniles or to act as bailiff in juvenile court. Such duties are not among those listed for the office of sheriff or constable. A constable is required by statute to attend justice court in his precinct, but neither he nor a sheriff has any duty with regard to the juvenile court. In Attorney General Opinion H-169 (1973), this office said that a sheriff is responsible for transporting adult prisoners from a city to a county jail on the basis of article 2.18 of the Code of Criminal Procedure. Juvenile proceedings are civil in nature, however, and laws governing criminal procedure have no application to proceedings in juvenile court. Family Code § 51.17. Finally, we note that the offices of both sheriff and constable constitute independently elected positions. Absent clear statutory or constitutional authority of which there is none, it would be anomalous to conclude that a county judge was authorized to require a sheriff or constable to transport individuals to and from juvenile court.

Your last question is whether the Frio County Commissioners Court may expend funds for transportation of juveniles when such expenditures were not provided for in the annual budget.

Subchapter A of chapter 111, Local Government Code, details the procedures for adoption of a budget in counties of less than 225,000 population. Section 111.010 provides, in pertinent part:

(b) After final approval of the budget, the commissioners court may spend county funds only in strict compliance with the budget, except in an emergency.

(c) The commissioners court may authorize an emergency expenditure as an amendment to the original budget only in a case of grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention. If the court amends the original budget to meet an emergency, the court shall file a copy of its order amending the budget with the county clerk, and the clerk shall attach the copy to the original budget.

A determination of what constitutes a "grave public necessity" is largely a question of fact which must be made by the commissioners court, but it should be noted that in the one reported case, the court disallowed the commissioners' finding. See Bexar County v. Hatley, 150 S.W.2d 980 (Tex. 1941); see also Attorney General Opinions O-5184 (1943); O-4127 (1941); O-2498 (1940). If the commissioners court is willing to transfer the necessary amount from another "budgeted item," it may do so without authorizing an emergency expenditure, according to the terms of section 111.010(d) of the Local Government Code.

SUMMARY

A county judge is not expressly empowered to order a sheriff or constable to transport persons to and from juvenile court. Unless it transfers the amount from another budgeted item, a county of less than 225,000 population may amend its budget to provide funds for transportation of juveniles only if the commissioners court finds that there exists a "grave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention."

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

[1] Although section 152.0014 of the Human Resources Code authorizes a commissioners court to pay "other expenses certified as necessary by the juvenile board chairman from the general funds of the county," that section is specifically made inapplicable to Frio County by section 152.0881(c) of the Human Resources Code.