December 29, 1989

Mr. Jerry P.Cunningham Opinion No. JM-1131 Chairman Texas Commission onAlcohol Re: Applicability of article andDrugAbuse 5561cc, V.T.C.S., to local 1705Guadalupe substance abuse treatment Austin, Texas 78701-1214 facilities or court residential treatment facilities (RQ-1828)

DearMr. Cunningham:

You ask several questions with respect to whether "substance abuse treatment facilities" and "court residential treatment facilities," which are referred to in new article 42.13 of the Code of Criminal Procedure, must be licensed by theTexas Commission onAlcohol and Drug Abuse (thecommission). You are concerned about facilities which
are "operat[ed] directly by local adult probation departments orwhose services are contracted by the local adult probation departments." YOU ask that we "resolve these issueswith respect to the statutory law as itwill exist January 1, 1990."

House Bill 2335 of the 71st Legislature effected a reorganization of the criminal justice system in Texas. Acts 1989, 71st Leg., ch. 785, at 3471. That act established aTexas Department of Criminal Justice which is to include, inter alia, a "community justice assistance division." Id. 55 1.11, 1.12,at 3473. The act further provides that onJanuary 1, 1990,thepowers, duties, etc., ofthe Adult Probation Commission are transferred to the Department of Criminal Justice. Id. 41.20, at 3475. Section 3.10 ofthe act repeals article 42.121 of the Code ofCriminal Procedure, which had provided for the Adult Probation Commission, and section 3.01 of the act adds anew article 42.13providing forthe community justice assistance division ofthe Department ofCriminal Justice. Generally speaking, theact creates the community justice assistance division (thedivision) as the successor entity to theAdult Probation Commission.

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Also, section 4.17 of.the act repeals section 10 of article 42.12 of the Code of Criminal Procedure which had provided for local "probation departments," while section 3.02 of the act adds anew article 42.131 to the code providing for the establishment of j'community supervision and corrections departments" (departments). Such departments, like their predecessor localprobation departments, generally correspond to judicial districts. See Code Crim. Proc. art. 42.131, 52. They are estabxhed by the district judge or judges handling criminal matters, and are financially supported by the counties they serve, judicial district funds, and state funds provided through the division. Adepartment may receive state aid through the division only if a "community justice plan" has been submitted to the division for the department. & art. 42.13, 96. Subsection (b) of section 6 provides in pertinent partwith respect tothe community justice plan:

A community justice plan required under this section must include:
(1) a summary of services provided by or available to thedepartment atthe time the plan issubmitted:

(2) a description of proposed new facilities or programs or significant expansion ofexisting facilities or programs and asummary ofhow the department proposes touse the facilities orprograms, with a particular emphasis on the plans of the department to expand thedepartment's use of:

(A) electronic monitoring programs;
(B) testing forcontrolled substances; and
(C) communitv corrections facilities, including:

(i) restitution facilities:
(ii) r residential treatment cou t facilities;

(iii) substance abuse treatment facilities;

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### (iv) custody facilities and boot camps;
(v) facilities for offenders described by Section 1,Article 4413(49a), Revised Statutes;

ties; (vi) intermediate sanction facili-

(vii) pre-parole transfer facilities:
(viii) halfway houses: and

(ix) work facilities. (Emphasis added.)

The terms ftsubstanceabuse treatment facilities" and "court residential treatment facilities," which are included inthe article 42.13 description of "community corrections facilities," are not statutorily defined. Section 2 0: article 42.131 appears toauthorize **a local**  "community supervision and corrections department" to establish the types of "community corrections facilities" described in article 42.13.1

The.focus of your inquiry is whether substance abuse treatment facilities (SATFs)and court residential treatment facilities (CRTFs), either directly operated by or the services ofwhich are contracted by local departments, must **be** licensed by the Commission onAlcohol and Drug Abuse. Provisions for the commission's licensure of certain

1. Section **3** of **article** 42.131 provides that a department "mayestablish community.corrections facilities of the types described by section 5, Article 42.13." Section 5 ofarticle 42.13does not, however, appear to describe "types of facilities." Rather, itauthorizes the community justice assistance division to take certain actions regarding the establishment of community corrections facilities (e.s.,develop standards,.fundcontracts, etc.). We think itapparent that the intent of section 3of article 42.131 is, ineffect, to authorize adepartment to establish the "types of facilities" listed in section 6, subsection (b),ofarticle 42.13, quoted above.

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treatment facilities are codified inchapter 464, subchapter A, ofthe newHealth and Safety Code. Acts 1989, 71st Leg., ch. 678, 01, at 2881. The provisions of subchapter A derive primarily from former article 5561cc, V.T.C.S., which
was repealed by section 13of the codifying act. The provisions of subchapter Amust, however, be readwith the provisions of a separate bill of the 71st Legislature, Senate Bill 1674,which amended article 5561~~. Acts 1989, 71st Leg., ch. 660, at 2171.2

Senate Bill 1674provides that "aperson who offers or purports to offer chemical dependency treatment must obtain
a license" from the commission. Id.; see also & ch. 678, at 2882. "Treatment" isdefined as **“ a**  planned, structured, and organized program designed to initiate andpromote a person's chemical-free status ortomaintain theperson free of illegal drugs." Id As you note in your request however, section 464.003(l) of subchapter A, readwith the Senate Bill 1674 amendments, exempts from the licensure requirement "facilities directly operated by the state."

We do not think that facilities operated by local departments, to the extent that they offer "treatment" as defined insubchapter A as amended, would fallwithin the exemption for "facilities directly operated by the state" provided for in section 464.003(l). Facilities operated directly by a department would be staffed by district personnel employed bydistrict judges. Code Crim. Proc. art. 42.131, 52. Section 6of article 42.131 specifically provides that such **employees are**  not state employees except forcertain tort claims andworkers compensation purposes.

We do not think that facilities with which local departments contract for services could be said to be "facilities directly operated by the state," within the meaning of section 464.003(l), merely by reason ofa local department's having contracted for their services. If, on the other hand, the department contracted with a facility operated directly by a state agency forthe services in question, the facility would be exempt under section

2. Government Code section 311.031(c) provides, in part, that the repeal of astatute by a code does not affect
anamendment of the statute by the same legislature that enacted the code. The amendment ispreserved and given effect aspart of the codeprovision.

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464.003(l). Also, a facility with which the department contracted that was exempt from licensure by the commission under otherprovisions would not require licensure. See. e.s., id. 5464.003(4) (exempting from commission licensure
an "educational program for intoxicated drivers").3

From a reading of the applicable provisions, it is apparent that the legislature intended section 2(c) of new article 42.13 'tobe theprimary way ofexempting department treatment facilities from commission licensure. Section 2(c)provides:

(c) After consultation with the Texas Commission on Alcohol and Drug Abuse, the division by rule shall establish standards for the operation of substance abuse facilities andprograms by thedivision and by departments. A facility or program operating under the standards isnot required tobe licensed or otherwise approved by any other state or local agency.
Ifa treatment facility, operated either by a department directly or by lawful contract, operates under standards validly established by the ~community justice assistance division pursuant to "consultation" with the Commission on Alcohol and Drug Abuse, the facility would be exempt from commission licensure under the terms of section **2ccj.4** We

3. Please note, however, that we do nothere address the legality ofadepartment's contracting forthe services of any particular facility. We address here only the question of licensure with respect to facilities with which
adepartment has lawfully contracted. But seeV.T.C.S. art. 4413(32), 54A, providing for department contracts with other entities.

4. Section 13(f) ofarticle 42.12 provides that a court, upon the making of certain determinations, shall require DWI offenders, as a condition of probation, to submit to treatment fordrug oralcohol dependency
inaprogram or facility approved or licensed by the Texas Commission on Alcohol and DrugAbuse or in a program or facility that complies with standards (Footnote Continued)

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understand from discussions with the legal staff at the Adult Probation Commission, which will be succeeded by the community justice assistance division ofthe Department of Criminal Justice on January 1, 1990, that the division intends to consult with the Commission onAlcohol and Drug Abuse and establish standards forthe types of community corrections facilities aboutwhich you are concerned.

In light of the foregoing discussion, wewill briefly respond toyour questions aspresented inyour request.

Your first question is:

Are SATFs and CRTFs chemical dependence 'treatment facilities' offering orpurporting to offer 'treatment' (as those terms are defined in Section l(7) & (12) of Article 5561cc, V.T.C.S. asamended)?

"Substance abuse treatment facilities" Andy "court residential treatment facilities" are not statutorily defired terms. The nature of such facilities for purposes of the commission's licensure provisions will depend on the standards fortheir operation, which are tobe adopted by

(Footnote Continued) established by the community justice assistance division of theTexas Department ofCriminal Justice, after consultation by the division with the commission.
Also, section 11 of article 42.12 provides for basic conditions ofprobation and gives the sentencing court the authority to require thedefendant toparticipate or remain under custodial supervision in a "community based" program or facility, see Code Crim. Proc. art. 42.12, § ll(lO), (12),orto participate insubstance abuse treatment services ina program or facility approved or licensed by the Texas Commission onAlcohol andDrugAbuse, ifthe person was sentenced for the offense involving controlled substances or the court determines that the defendant's use of controlled substances was connected to the commission ofthe offense

. . . . Id. § ll(16).

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the community justice assistance division and/or the local community supervision and corrections departments, and ultimately onwhether az:;z;Sfacility, regardless of the rubric attached to it, ,,treatment,, as defined in chapter 464, subchapter A, oftheHealth and Safety Code, as amended.5

Your second question is:

Ifso, are either orboth CRTFs or SATFsmade generally. exempt from the requirement of licensure pursuant to the terms of Sections 2(a) and (b)of Article 5561cc, as amended, by the terms of H.B. 2335 read in its entirety? See relevant provisions on the following pages ofthe attached H.B. 2335: 7-8, 13, 20-21, 24-25, 303-4, 56, 83, 90, 95, and 111.

As discussed above, we donot think that SATFs or CRTFs operated by a local community supervision and corrections department, orthe services of which are contracted for by local departments, would be exempt as "facilities directly operated by the state',pursuant to section 464.003(l) of the Health and Safety Code, exceptwhere services were provided directly by, a state agency. Also, if the facility is operated under sta.ndards validly adopted by the community justice assistance division under section 2(c) of article 42.13 ofthe Code ofCriminal Procedure, itwould be exempt from licensure by the Commission onAlcohol and Drug Abuse under theprovisions ofthat section. There isno "general

5. Of course, if facilities denominated as substance abuse treatment facilities in fact offer substance abuse treatment, theywillmost likelybe "treatment facilities,' offering l,treatmentl, within the meaning of article 5561cc, asamended, i.e., subchapter A of chapter 464 ofthe Health and Safety Code. Thenature of court residential treatment facilities is not so apparent from that appellation. We note that the term ,,courtresidential treatment facility',is used in a rule adopted in 1988by the Adult Probation Commission to refer to residential facilities operated by localprobation departments for felony offenders "exhibiting drug and alcohol abuse problems ormental health problems.11 37T.A.C. 0321.14.

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Mr. Jerry Cunningham -Page 8 (JM-1131)

exemption" for substance abuse treatment facilities and court residential treatment facilities.

Your third question is:

Ifa local adult probation department receives state or federal fundsunder a grant or contract with the Texas Adult Probation Commission or its successor, are either or both CRTFs or SATFs operated by or funded by the local office exempt:

a. as facilities operated by the state, regardless of thewording in H.B. 2335, or,

under Section 2c ..,'I,.,.(H.B.2335). ofArticle 42.13

We .donot think that the receipt of state or federal fundsby a local department (tobe known asa "community supervision and corrections department" as of January 1, 1990), is in itself determinative ofthe exempt status of a facility operated or fundedby the department. The receipt of such funds does not in itself determine, for example, ' whether the facility is exempted asone "directly operated by the state," under Health and Safety Code section 464.003(l), or as one operated under standards validly established by the community justice assistance division, after consultation with the commission, pursuant to section 2(c) ofarticle 42.13 ofthe Code ofCriminal Procedure.

Your fourth question is:

DoesTCADA have legal authority under Article 5561~~ to waive its current requirement of licensure of CRTFs if the CRTF offers chemical dependency treatment services as defined inthe Act (as opposed to limiting its services to substance abuse counseling) without offering or purporting to offer treatment?

We findnoauthority forthe Commission onAlcohol and DrugAbuse to "waive" its licensure requirements.

Your last question is:

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Were the~terms CRTF and SATF intended by the legislature to be synonymous entities for purposes ofapplying Article 5561cc?

As we stated earlier, the terms 18substance abuse treatment facility" and Vourt residential treatment facility" are not statutorily defined. We think that the legislature intended that the nature of such facilities, for purposes ofthe commission's licensure provisions, isto be determined by the standards adopted fortheir operation by the community justice assistance -divisionand/or the local community supervision and corrections departments that operate them. The respective appellations indicate that CRTFs are tobe residential facilities but substance abuse treatment facilities not necessarily so, and that SATFs offer substance abuse treatment while court residential treatment facilities might not. Regardless of the rubric attached to it, whether a particular facility is "treatment facility" and offers Vreatmenttl within th: meaning ofthe commission's licensure provisions, gee Health &Safety Code ch. 464, subch. A, as amended, will ultimately depend on whether the facility in fact offers such "treatment."

SUMMARY

A community corrections facility directly operated **by** a community supervision and corrections department under articles 42.13 and 42.131 ofthe Code ofCriminal Procedure, andoffering substance abuse 'treatment' as defined in Health and Safety Code section 464.001, asamended, would notbe exempt from licensure by the Commission onAlcohol and DrugAbuse as "a facility directly operated by the state" pursuant to section 464.003(l) of theHealth and Safety Code, as amended.
Neither would a facility offering such treatment services contract to a department be exempt asofidirectlyoperated by the state" unless the contractee directly operating the facility isastate agency.
Such a facilitywould, however, be exempt from licensure by the commission if it operates under standards validly adopted by the community justice assistance division of

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the Department ofCriminal Justice, toarticle 42.13, section 2(c), of ofCriminal Procedure.
Very truly I

.

JIM MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byWilliam Walker Assistant Attorney General pursuant the Code

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