Open Records Decision No. 236
March 27, 1980

Re:  Whether probationer's records maintained by an adult probation office are public.

Honorable Odis R. Hill
Criminal District Attorney
Gregg County Courthouse
Longview, Texas  75601

Dear Mr. Hill:

	You have requested our opinion as to whether certain records maintained by the 
Gregg County adult probation office are available to the public.  The specific information 
requested is that portion of the files of probationers which indicate whether they are 
complying with the terms of their probation.  You contend that this information is held 
by the probation office on behalf, and subject to the control of, the district judge of 
Gregg County, and, as such, is not subject to the provisions of the Open Records Act.

	After defining “governmental body,” in section 2(1) of article 6252-17a, 
V.T.C.S., the Open Records Act also provides in that section that

(G)	the Judiciary is not included within this definition.

Article 42.12, Texas Code of Criminal Procedure, provides, in pertinent part:

	Section 1.  It is the purpose of this Article to place wholly 
within the State courts of appropriate jurisdiction the responsibility 
for determining when the imposition of sentence in certain cases 
shall be suspended, the conditions of probation, and the supervision 
of probationers, in consonance with the powers assigned to the 
judicial branch of the government by the Constitution of Texas. . . .

	. . . .

	Sec. 10 (a)  For the purpose of providing adequate probation 
services, the district judge or district judges trying criminal cases in 
each judicial district in this state shall establish a probation office 
and employ, in accordance with standards set by the [Texas Adult 
Probation] commission, district personnel as may be necessary to 
conduct presentence investigations, supervise and rehabilitate 
probationers, and enforce the terms and conditions of misdemeanor 
and felony probation. . . .

	(b)	Where more than one probation officer is required, the 
judge or judges shall appoint a chief adult probation officer or 
director, who, with their approval, shall appoint a sufficient number 
of assistants and other employees to carry on the professional, 
clerical, and other work of the Court.

	. . . .

	(g)	Personnel of the respective district probation departments 
shall not be deemed state employees. . . .

	In Open Records Decision No. 136 (1976), a request for an attorney's file was 
made to the State Board of Law Examiners, whose members are appointed and subject to 
removal by the Supreme Court, and are directed to act under the rules and instructions of 
the Court.  This office held:

We believe the information collected, assembled and maintained by 
the Board is held on behalf of the judiciary, and that the Board, as 
an agency directly responsible to and under the control of the 
Supreme Court, is not subject to the provisions of the Open Records 
Act. . . .

See also Open Records Decision No. 131 (1976) (applicants for employment as court 
coordinator for Dallas County criminal courts constitutes a record of the judiciary).  But 
c.f., Open Records Decision No. 78 (1975) sheriff subject to Open Records Act even 
though a member of the “judicial department”); Open Records Decision No. 188 (1978) 
(list of applicants for appointment as municipal court judge is a record of the city 
council, which makes the appointment, rather than a record of the judiciary).

	In the present instance, we believe that the principle of Open Records Decision 
No. 136 (1976) is applicable.  Probation officers are employed by a district judge and 
subject to his supervision and control.  Since the probation officer is thus an agent of the 
district judge, and acts according to his direction, it is our view that the requested 
information is a record of the judiciary and, as a result, not subject to the Open Records 
Act.

	As to the availability of the information outside the scope of the Open Records 
Act, we believe that decision is within the discretion of the court, acting through its 
agent, the probation officer.  The records about which you inquire here involve the 
administration of a continuing judicial function -- whether a probationer is complying 
with the terms set by the court -- and the court's supervision over the probationer 
continues throughout the term of his probation.  As this office said in Attorney General 
Opinion H-826 (1976), a “court has inherent power to control public access to its own 
records.”  See Attorney General Opinion H-826 (1976), and opinions cited therein.

SUMMARY

	Records of an adult probation office which indicate whether 
probationers are complying with the terms of their probation are 
records of the “judiciary” and thus not subject to the Open Records 
Act.  It is within the court's discretion as to whether to release such 
information.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Ted L. Hartley
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Susan Garrison
Rick Gilpin
Eva Loutzenhiser