ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

Mr. David Slayton 

Administrative Director 

Office of Court 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 of the Texas Government Code 

(RQ-1 072-GA) 

You ask whether a prosecutor may require that a defendant enter a guilty plea 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 and the prosecutor approved by the court before trial. As one court described the practice, 

[t]he State agrees to dismiss the case if the defendant performs certain 

conditions within a specified period of time. Both the State and the 

defendant request that the trial court continue 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. If the defendant has complied with the 

conditions of the agreement, the trial court grants the State's motion 

to dismiss the pending criminal charges. If the defendant has not 

complied with the conditions of the 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. 

1

See Letter from Mr. David Slayton, Admin. Dir., Office of Court 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 - Page 2 (GA-0986) 

In examining a statute, our goal is "to give effect to the Legislature's intent as expressed in 

its plain language." R.R. Comm 'n of Tex. v. Tex. Citizens for 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 generally TEX. Gov'TCODEANN. §§ 76.001-.018 (West 2005 & Supp. 2012). 

Subsection 76.011(a) provides that a Department may "operate programs for ... the supervision and 

rehabilitation of persons in pretrial 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 

statute does not, however, provide further guidance on the purpose of a pretrial intervention program. 

Nor does the statute elaborate on what constitutes a "reasonable condition," other than to expressly 

provide that drug testing is one such condition, or indicate how reasonableness shall be determined. 

Given the lack of any statutory or judicial authority addressing your question, our guidance 

is necessarily limited. In some cases legislative silence can support deductions or conclusions about 

legislative intent. PPG Indus., Inc. v. 1MB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 84, 

87 (Tex. 2004). Here, however, the gap in legislative language is simply too large for the blanks to 

be filled in. 

As you point out, according to the court in Fisher v. State, the purpose of pretrial intervention 

is to provide the defendant with an opportunity to have the charges dismissed prior to a finding of 

guilt or innocence. 832 S .W.2d at 643. Requiring a guilty plea as a condition of pretrial 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 of May 31,2009, 81stLeg., R.S., ch. 1103, § 17(b), 2009 Tex. Gen. Laws 3010,3019-20 (now 

codified at TEX. CODE CRJM. PROC. ANN. art. 55.01(a)(2)(A)(ii) (West Supp. 2012)). This suggests 

that a pretrial intervention program is intended to give a defendant a chance to atone for wrongdoing 

without suffering the consequences of a judgment against him, which lends further support to the 

view that requiring a guilty plea is inconsistent with the purposes of pretrial 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 Ex parte 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 of the plea agreement are left solely to 'the parties 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, but to see that justice is done."). While it may be 
Mr. David Slayton - Page 3 (GA-0986) 

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 of pretrial diversion agreements. We have not found any law prohibiting a 

prosecutor from using a guilty plea as a condition of pretrial 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 of the Government Code. Our office can advise you only on the current state 

of the 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 

to provide a more explicit legal framework governing the scope and operation of pretrial intervention 

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 - Page 4 (GA-0986) 

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 

explicit legal framework governing the scope and operation of pretrial 

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