August 26, 2026
The Honorable Michaela E. Kee Bailey County Attorney 623 West American Boulevard Muleshoe, Texas 79347
Opinion No. KP-0525
Re: Probation officer authorities related to juvenile detention hearings and ex parte communications (RQ-0591-KP)
Dear Ms. Kee:
Your inquiry pertains to the procedures governing the release of juveniles from custody and juvenile detention hearings under the Family Code. 1 You also raise a series of questions regarding the propriety of email communications sent by a juvenile probation officer to the presiding judge related to a pending case. Request Letter at 2–3.
You tell us that, at some point after a child was taken into custody due to a probation violation, the juvenile probation officer assigned to the case provided evidence of probable cause to the county judge, who we understand serves as a juvenile judge. See id. at 1. While you do not tell us precisely when the child was released from custody, you indicate that the child was released within forty-eight hours and without receiving a detention hearing. Id. You ask whether “a juvenile probation officer[] [who has] show[n] probable cause to the court[] may then make the sole decision on when a juvenile may be released from a detention facility as long as the juvenile is released before less than [forty-eight] hours.” Id. at 2. You also ask whether the requirements for detention proceedings under Family Code section 54.01 differ when a juvenile is detained due to the violation of a probation order. Id.
In addition, you recount a specific scenario in which a juvenile probation officer sent an email to the Texas Juvenile Justice Department’s (“Department”) “Legal Help Desk” seeking advice regarding the legal propriety of a motion you filed as the juvenile prosecutor in a particular probation violation case. Id.; see also Attachment at 1–2. We also understand the motion at issue to be a “motion to modify disposition for violation of probation” and that you moved to sentence the juvenile to a period of incarceration as punishment. Attachment at 2. You note that the juvenile 1 See Letter and Attachment from Hon. Michaela E. Kee, Bailey Cnty. Att’y, to Off. of the Tex. Att’y Gen., Op. Comm. at 1–3 (Mar. 25, 2025), https://www.texasattorneygeneral.gov/sites/default/files/requestfiles /request/2025/RQ0591KP.pdf (“Request Letter” and “Attachment,” respectively) (Attachment on file with the Op. Comm.).
probation officer forwarded the response he received from the Department to the presiding judge without including you or the child’s counsel as recipients on the email. Request Letter at 2. You received notice of the communication the following “day from the presiding judge” and “forwarded the information to the juvenile’s legal counsel.” Id.
You ask whether it is within “a juvenile probation officer’s scope of authority . . . to have ex parte communications with the presiding judge over a pending case.” Id. You also ask whether such communications violate a juvenile’s due process rights. Id. Relatedly, you inquire as to whether a juvenile prosecutor who does not disclose to opposing counsel email communications that occurred between a juvenile probation officer and the presiding judge in a case violates the requirements of Brady v. Maryland, 373 U.S. 83 (1963), and the Michael Morton Act. 2 Request Letter at 2–3.
A juvenile probation officer may, under certain circumstances, release a child from custody without a detention hearing.
We begin with your question regarding whether a juvenile probation officer who has “show[n] probable cause to the court” may make the decision to release a child from a detention facility if the child is released within forty-eight hours from the time he was initially taken into custody. Request Letter at 2. Unless a child who has been taken into custody “is alleged to have engaged in delinquent conduct and to have used, possessed, or exhibited a firearm,” TEX. FAM. CODE § 53.02(f), 3 a juvenile probation officer must release the child under two circumstances. First, following a preliminary investigation, release is required if “the intake officer, probation officer, or other person authorized by the board” determines that there is no “probable cause to believe the [child][] engaged in delinquent conduct or conduct indicating a need for supervision.” Id. § 53.01(a)(2)(A), (b). Second, even if probable cause is found under subsection 53.01(a)(2)(A), post-investigation release is required if the officer does not find that detention is warranted under one of the six enumerated circumstances in subsection 53.02(b). Id. § 53.02(a).
Your inquiry suggests that probable cause was found, Request Letter at 2, and we therefore focus our analysis on section 53.02. Although subsection 53.02(a) references only an “intake” officer or an “other authorized officer of the court,” TEX. FAM. CODE § 53.02(a), a certified juvenile probation officer is authorized to “conduct[] intake interviews and preliminary investigations,” 37 TEX. ADMIN. CODE § 341.400(a)(6). A juvenile probation officer is likewise considered to be an officer of the court. See Chandler v. State, 695 S.W.2d 248, 249 (Tex. App.— Austin 1985, no writ). It follows that a juvenile probation officer may serve as an intake officer
Act of May 14, 2013, 83d Leg., R.S., ch. 49, § 2, 2013 Tex. Gen. Laws 106, 106–08 (codified at TEX. CODE 2
CRIM. PROC. art. 39.14).
3 Pursuant to subsection 53.02(f), “[a] child who is alleged to have engaged in delinquent conduct and to have used, possessed, or exhibited a firearm, as defined by [s]ection 46.01, Penal Code, in the commission of the offense” must be “detained until the child is released at the direction of the judge of the juvenile court, a substitute judge authorized by [s]ection 51.04(f), or a referee appointed under [s]ection 51.04(g), . . . or until a detention hearing is held as required by [s]ection 54.01.” TEX. FAM. CODE § 53.02(f). You do not indicate that the child here was taken into custody under these circumstances.
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and, when that is the case, “shall release the child unless it appears that [the child’s] detention is warranted under [s]ubsection [53.02](b).” TEX. FAM. CODE § 53.02(a).
Release of a child under the circumstances described above does not require a hearing or court authorization. See id. §§ 53.02(a), 54.01(a). While you correctly observe that subsection 54.01(a) requires a detention hearing to be held “not later than the second working day ([forty- eight] hours) after the child is taken into custody,” Request Letter at 1, this is only “if the child is not released under [s]ection 53.02,” TEX. FAM. CODE § 54.01(a). Moreover, to the degree that you suggest a detention hearing is required under subsection 54.01(o), that provision requires only that a court or referee make a probable cause determination within forty-eight hours. TEX. FAM. CODE § 54.01(o). Nothing in the language of subsection 54.01(o) suggests that a court cannot make that determination outside a detention hearing where, as you indicate, a child has already been released from custody. Id.; see also Request Letter at 1–2.
Finally, you ask whether juvenile detention proceedings under section 54.01 “change” if a child is detained because of an alleged violation of a probation order. Request Letter at 2. Section 52.01 lists the circumstances under which a child may be taken into custody, including “by a probation officer if there is probable cause to believe that the child has violated a condition of probation imposed by the juvenile court.” TEX. FAM. CODE § 52.01(a)(4). If the child has not been released under the procedures described above, section 54.01 requires a detention hearing to be held to determine whether the child’s continued detention is warranted. Id. § 54.01(a). This hearing is required regardless of the particular reason the child was taken into custody. Id. (stating that, “if the child is not released under [s]ection 53.02, a detention hearing without a jury shall be held promptly”). Following the detention hearing, a juvenile may be detained so long as the necessary findings are made. See generally id. § 54.01(e), (o). 4 We therefore conclude that the fundamental requirements of detention hearings under section 54.01 remain the same whether a child is taken into custody for an alleged violation of a probation order or for another reason. 5
While an email from a juvenile probation officer to a presiding judge on the perceived legality of a prosecutor’s disposition recommendation constitutes an impermissible ex parte communication, we cannot conclude as a matter of law that such an email would violate due process.
You next inquire about the scope of a juvenile probation officer’s authority, noting that the juvenile probation officer in this case represented that he has the authority “to advise the court on what the court is legally able to order on pending motions filed by attorneys.” Request Letter at 2. You thus ask whether it is “within the role of a juvenile probation officer to give legal advice to the court on the legality of motions filed by the juvenile prosecutor.” Id. You also ask whether such communications are “ex[] parte and thus, a violation of a juvenile’s due process rights if these
4 A child may also be detained under subsection 54.01(i) for up to ten days without receiving a detention hearing if a written request for shelter is made that meets certain statutory requirements. TEX. FAM. CODE § 54.01(i). You do not indicate that such a request was made in this case.
5 This is not to say that there are no differences in the proceedings following a detention hearing when a child is alleged to have violated an order of probation imposed by a juvenile court. For example, a child who is alleged to have violated an order of probation is subject to a hearing to modify disposition. See generally id. § 54.05.
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communications are done without the inclusion of the juvenile’s legal counsel or the juvenile prosecutor.” Id.
Juvenile probation officers have a variety of established duties and responsibilities. For instance, the Department’s rules list several “duties and responsibilities” that “may be performed” by juvenile probation officers, including “recommending a disposition in formal court proceedings.” 37 TEX. ADMIN. CODE § 341.400(a)(1). While a juvenile probation officer may discuss the legality of a prosecutor’s disposition in the context of his own recommended disposition, those recommendations must be made “in formal court proceedings.” Id. (emphasis added). An email to the judge is not, of course, a formal court proceeding. The email you reference therefore falls outside the scope of a juvenile probation officer’s authority under subsection 341.400(a)(1), and we are not aware of any other authority that contemplates the informal communication you describe.
Our justice system requires “a neutral and passive decision maker to adjudicate disputes after they have been aired by the adversaries in a contested proceeding.” In re City of Lubbock, 666 S.W.3d 546, 556 (Tex. Crim. App. 2023). These requirements are rooted in due process, Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), and the Texas Constitution requires no less, Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). It is with this in mind that “the law in this State, as in most jurisdictions, looks upon ex parte [communications] with extreme disfavor.” U.S. Gov’t v. Marks, 949 S.W.2d 320, 325 (Tex. 1997) (emphasis omitted); accord, e.g., Tex. Att’y Gen. Op. No. JM-194 (1984) at 5. Ex parte communications “involve fewer than all of the parties who are legally entitled to be present,” Abdygapparova v. State, 243 S.W.3d 191, 207 (Tex. App.— San Antonio 2007, pet. ref’d) (citations omitted), and it is important to ensure that “all legally interested parties are given their full right to be heard under the law,” Fernandez v. State, 597 S.W.3d 546, 559 (Tex. App.—El Paso 2020, pet. ref’d). Unsurprisingly, both the Code of Judicial Conduct and the Disciplinary Rules of Professional Conduct prohibit ex parte communications “except in carefully defined circumstances,” Marks, 949 S.W.2d at 325—e.g., when such communications are expressly authorized by statute. TEX. CODE JUD. CONDUCT, Canon 3(B)(8)(e), 6 reprinted in TEX GOV’T CODE, tit. 2, subtit. G, app. C; TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.05(b), reprinted in TEX. GOV’T CODE, tit. 2, subtit. G, app. A; see also In re City of Lubbock, 666 S.W.3d at 556.
Here, the email you describe was an impermissible ex parte communication because the juvenile probation officer was not authorized to email the presiding judge about a pending proceeding and did not include the child’s counsel and juvenile prosecutor on that communication. Request Letter at 2. Importantly, however, “[t]he mere fact that an ex parte communication occurred is not sufficient to establish a violation of due process.” Hammack v. Pub. Util. Comm’n 6 Canon 3 of the Code of Judicial Conduct permits ex parte communications in other circumstances as well, including when the judge is “obtaining the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond,” TEX. CODE JUD. CONDUCT, Canon 3(B)(8)(c), or when he is “consulting with other judges or with court personnel,” id. Canon 3(B)(8)(d). We understand you to be asking whether a juvenile probation officer is expressly authorized by law to engage in ex parte communications with a judge about a pending case under Canon 3(B)(8)(e), and we offer no comment on the other circumstances listed in Canon 3.
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of Tex., 131 S.W.3d 713, 730 (Tex. App.—Austin 2004, pet. denied). An ex parte communication “amounts to a due process violation . . . only to the extent that a fair and just hearing would be thwarted . . . and to that extent only.” Jackson v. City of Hearne, 959 F.3d 194, 203 (5th Cir. 2020) (alteration in original) (citation omitted). Thus, an ex parte communication warrants reversal only if there has been “judicial impropriety, coupled with probable prejudice to the complaining party, and rendition of an improper verdict.” Fernandez, 597 S.W.3d at 560. To establish prejudice based upon an ex parte communication, a complaining party must provide “record support showing that the communications influenced the court’s decision-making.” Id. But this ultimately turns on factual determinations that are beyond the scope of an Attorney General opinion. See Tex. Att’y Gen. Op. No. KP-0486 (2025) at 5. Accordingly, we cannot conclude whether the email communication you reference violated the child’s due process rights as a matter of law.
Whether a prosecutor’s failure to disclose an ex parte email to a judge constitutes a Brady violation is also outside the scope of an Attorney General opinion.
Another concern stemming from the communication you describe is whether a prosecutor’s failure to disclose the email to the child’s counsel constitutes a Brady violation. See Request Letter at 2–3. Although juvenile proceedings are civil in nature, Carrillo v. State, 480 S.W.2d 612, 615 (Tex. 1972), discovery in juvenile proceedings “is governed by the Code of Criminal Procedure and by case decisions in criminal cases,” TEX. FAM. CODE § 51.17(b)—including Brady.
The United States Supreme Court held in Brady that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87. A Brady violation thus occurs when: “(1) the state suppressed evidence; (2) the suppressed evidence is favorable to [the] defendant; and (3) the suppressed evidence is material.” Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006); accord Brady, 373 U.S. at 87. Determining whether such a violation occurred based on this analysis, however, requires the resolution of fact questions that are beyond the scope of an Attorney General opinion. See Tex. Att’y Gen. Op. No. KP-0478 (2025) at 7.
A juvenile prosecutor is subject to the Michael Morton Act’s disclosure requirements.
Finally, we turn to your question regarding whether the prosecutor’s failure to disclose the email at issue violates the Michael Morton Act. Request Letter at 2–3. The Michael Morton Act “revamped Article 39.14 [of the Code of Criminal Procedure] completely” to achieve the “overhaul of discovery in Texas.” Watkins v. State, 619 S.W.3d 265, 277 (Tex. Crim. App. 2021). The Act’s amendments to Article 39.14 are widely “understood to have broadened the State’s discovery obligations.” State v. Heath, 696 S.W.3d 677, 692 (Tex. Crim. App. 2024).
Article 39.14 subsections (a) and (h) impose a statutory duty of disclosure upon “the state.”
TEX. CODE CRIM. PROC. art. 39.14(a), (h). Our office has construed “the state,” in this context, as “the prosecution representing the State of Texas in criminal cases.” Tex. Att’y Gen. Op. No. KP- 0055 (2016) at 3; see also Tex. Att’y Gen. Op. No. KP-0478 (2025) at 5. Similarly, at least one court of appeals has concluded that “the state” in Article 39.14 means “the prosecution who is adverse to” a defendant. Coleman v. State, 577 S.W.3d 623, 634–35 n.6 (Tex. App.—Fort Worth 2019, no pet.). Nothing in the language of Article 39.14(a) or (h) suggests that the same would not
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be true for a prosecutor in a juvenile case. See, e.g., TEX. FAM. CODE § 54.11(b)(4) (requiring that notice of release or transfer hearing be given to “the office of the prosecuting attorney that represented the state in the juvenile delinquency proceedings” (emphasis added)). Thus, a juvenile prosecutor is subject to the disclosure requirements in Article 39.14(a) and (h). See generally id. § 51.17(b) (providing that discovery in juvenile proceedings “is governed by the Code of Criminal Procedure and by case decisions in criminal cases”).
Subject to some restrictions, Article 39.14(a) imposes a duty upon the State to produce discovery “after receiving a timely request from the defendant” to:
produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.
TEX. CODE CRIM. PROC. art. 39.14(a). While you do not indicate that the child’s attorney submitted a discovery request here, See Request Letter at 1–3, we note that the prosecutor must promptly turn over a document upon a proper discovery request from a defense attorney, or if a prior discovery request was made. TEX. CODE CRIM. PROC. art. 39.14(a).
In the event that no discovery request was made, the prosecutor may still have obligations to turn the email over. For one, the prosecutor must turn over the email if the material contained therein is required to be disclosed under Brady. See supra p. 5. But the prosecutor also must “disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.” TEX. CODE CRIM. PROC. art. 39.14(h). Production in this context is required even without any request from the defendant, Heath, 696 S.W.3d at 683 n.1, and “regardless of whether the evidence is ‘material’ under Brady.” Watkins, 619 S.W.3d at 277.
A juvenile prosecutor’s duty to disclose an email between a juvenile probation officer and the presiding judge under Article 39.14(h) therefore depends on whether the email “tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.” TEX. CODE CRIM. PROC. art. 39.14(h); see also Request Letter at 2–3. If so, a juvenile prosecutor is required to disclose such an email to the child’s counsel under Article 39.14(h). But this, like your other inquiries, ultimately turns on factual questions that are beyond the scope of an Attorney General opinion.
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S U M M A R Y
A juvenile probation officer who serves as the intake officer or is otherwise considered an authorized officer of the court must release a child from custody under Family Code subsection 53.02(a) if they find that detention is not warranted under subsection 53.02(b), which does not require a hearing or judicial authorization. Moreover, hearing requirements under section 54.01 do not change when detention results from an alleged violation of probation.
An email from a juvenile probation officer to a judge on the perceived legality of the prosecutor’s disposition recommendation constitutes an improper ex parte communication. Whether that email violates a child’s due process rights or must be disclosed under Brady, however, involves factual questions beyond the scope of an Attorney General opinion. Furthermore, though Article 39.14(a) of the Texas Code of Criminal Procedure does not require a juvenile prosecutor to disclose said email without a discovery request, Article 39.14(h) would require disclosure if the email tends to negate the defendant’s guilt or reduce their punishment. But that determination also implicates fact questions unsuited to an opinion.
Very truly yours,
KEN PAXTON Attorney General of Texas
BRENT WEBSTER First Assistant Attorney General
RALPH MOLINA Deputy First Assistant Attorney General
D. FORREST BRUMBAUGH Deputy Attorney General for Legal Counsel
MICHAEL C. COTTON Chair, Opinion Committee