ATTORNEY GENERAL OF TEXAS GREG ABBOTT

Mr. David Slayton Administrative Director Office ofCourt Administration Post Office Box 12066 Austin, Texas 78711-2066

Dear Mr. Slayton: February 5, 2013
Opinion No. GA-0986 Re: Whether a prosecutor may require that a defendant enter a guilty plea as a condition for participation in a pretrial diversion program under section 76.011 ofthe Texas Government Code (RQ-1072-GA)

You ask whether a prosecutor may require that a defendant enter a guiltyplea as a condition of a pretrial intervention program under section 76.011 of the Government Code. 1 Pretrial intervention, also known as pretrial diversion, generally involves a written agreement between the defendant andtheprosecutor approvedby the courtbeforetrial. As onecourtdescribed the practice, [t]heStateagrees to dismiss the caseifthe defendantperformscertain conditions within a specified period oftime. Both the State and the defendantrequest that the trial courtcontinue the present trial setting to a certain date in the future to give the defendant time to comply with the agreed conditions

.... On that date, the defendant must appear before the trial court. Ifthe defendant has complied with the conditions ofthe agreement, the trial court grants the State's motion to dismiss the pending criminal charges. If the defendant has not complied with the conditions ofthe agreement, the case proceeds to trial as scheduled. Fisher v. State, 832 S.W.2d 641,643-44 (Tex. App.-Corpus Christi 1992, no writ). You explain that "[p]re-trial diversion pushes the time to establish guilt or innocence into the future and enables an individual to complete the program and have the charges dismissed." Request Letter at 3. You contend that "[t]he program was designed to allow the State to dismiss a case if the defendant complies with the agreed to conditions" and that "[r]equiring a defendant to plead guilty is inconsistent with this purpose." ld.

1See Letter from Mr. David Slayton, Admin. Dir. , Office ofCourt Admin., to Honorable Greg Abbott, Tex. Att'y Gen. at 1, 4 (July 16, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").Mr. David Slayton

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Inexamining a statute, our goal is "to give effect to the Legislature's intent as expressed in its plain language." R.R. Comm 'n ofTex. v. Tex. Citizensfor a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011). Chapter 76 establishes community supervision and corrections departments ("Departments") in judicial districts and sets forth their various powers and responsibilities. See generallyTEX. Gov'TCODEANN. §§ 76.001-.018 (West2005 & Supp. 2012). Subsection76.011(a) providesthat aDepartmentmay "operateprograms for

...the supervision and rehabilitation ofpersons inpretrial intervention programs[.]" /d.§ 76.01l(a)(l) (West Supp. 2012). Subsection 76.011(b) specifies that such a program "may include reasonable conditions related to the purpose of the program, including testing for controlled substances." /d. § 76.011(b). The statutedoesnot, however,providefurther guidanceonthepurposeofapretrialinterventionprogram. Nor does the statute elaborate on what constitutes a "reasonable condition," otherthan to expressly provide that drug testing is one such condition, or indicate how reasonableness shall be determined. Given the lack ofany statutory orjudicial authority addressing your question, our guidance is necessarilylimited. In somecases legislative silencecan support deductions orconclusions about legislative intent. PPGIndus., Inc. v. 1MB/Houston Ctrs. PartnersLtd. P'ship, 146 S.W.3d79, 84, 87 (Tex. 2004). Here, however, the gap in legislative language is simply too large for the blanks to be filled in. As youpointout, according to thecourtinFisherv. State, the purposeofpretrial intervention is to provide the defendant with an opportunity to have the charges dismissed prior to a finding of guilt orinnocence. 832 S.W.2d at 643. Requiring aguiltypleaas acondition ofpretrial intervention arguably conflicts with this purpose. Moreover, the Legislature recently amended the criminal expunction statute to provide that, under certain circumstances, a person who has completed a pretrial intervention program under section 76.011 is entitled to have his arrest records expunged. Act ofMay 31,2009, 81stLeg., R.S., ch. 1103, § 17(b), 2009 Tex

. Gen. Laws 3010,3019-20 (now codified atTEX. CODE CRJM. PROC. ANN. art. 55.01(a)(2)(A)(ii) (West Supp. 2012)). This suggests that apretrial intervention program is intendedto give adefendant achanceto atone for wrongdoing without suffering the consequences ofajudgment against him, which lends further support to the view that requiring a guilty plea is inconsistent with the purposes ofpretrial intervention. On the other hand, there is no legal authority directly limiting the scope of a pretrial intervention agreement. At least one court has found that "[p]re-trial diversion agreements
... are akin to negotiated plea agreements, which have been equated to a contract." In re D.R.R., 322 S.W.3d 771,773 (Tex. App.-EJ Paso 2010, no pet.) (citing Exparte Williams, 637 S.W.2d 943, 947-48 (Tex. Crim. App

. 1982)). The Texas Court of Criminal Appeals has noted that "plea agreements may contain a variety of stipulations and assurances, depending on the desires of the State and the defendant." State v. Moore, 240 S.W.3d 248,250 (Tex. Crim. App. 2007). The Court further noted that "the terms ofthe plea agreement are left solely to 'theparties who are dealing at arm's length[,] [and] [t]his Court will not interfere with those terms unless they appear to be manifestly unjust."' /d. at 251 (quoting Williams, 637 S.W.2d at 948); see also TEX. CODECRJM. PROC. ANN. art. 2.01 (West 2005) ("It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, butto see thatjustice is done."). While it may beMr. David Slayton

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fair to say that pretrial diversion agreements are different in character from plea agreements, it is equally fair to say that neither statutes nor judicial decisions offer useful guidance about the permissible parameters ofpretrial diversion agreements. We have not found any law prohibiting a prosecutor from using a guilty plea as a condition ofpretrial intervention. Due to the lack of legal authority on this matter, we cannot advise you definitively as to whether a prosecutor may require defendants to plead guilty as a condition for pretrial intervention under section 76.011 ofthe Government Code. Our office can advise you only on the current state ofthe law. We cannot make law where it does not yet exist. Because existing Texas law contains virtually no useful legal guidance regarding pretrial intervention programs, it is for the Legislature toprovideamoreexplicitlegal framework governingthe scopeand operation ofpretrialintervention in this State. Until the Legislature does so, we cannot answer your first question. You seek an answer to your second question only if we answer your first question in the affirmative. Because we do not definitively answer your first question, we will not address your second question.Mr. David Slayton

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SUMMARY Due to the lack of controlling legal authority, we cannot advise you whether a prosecutor may require defendants to plead guilty as a condition for pretrial intervention under section 76.011 of the Government Code. It is for the Legislature to provide a more explicitlegal framework governingthe scope andoperationofpretrial diversion in this State.

DANIEL T. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chairman, Opinion Committee Becky P. Casares Very truly yours,

Assistant Attorney General, Opinion Committee