December 29, 1989 

Mr. Jerry P. Cunningham Opinion No. JM-1131 

Chairman 

Texas Commission on Alcohol Re: Applicability of article 

and Drug Abuse 5561cc, V.T.C.S., to local 

1705 Guadalupe substance abuse treatment 

Austin, Texas 78701-1214 facilities or court residential treatment facilities 

(RQ-1828) 

Dear Mr. 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 the Texas Commission on Alcohol and Drug Abuse 

(the commission). You are concerned about facilities which 

are "operat[ed] directly by local adult probation departments or whose services are contracted by the local adult 

probation departments." YOU ask that we "resolve these 

issues with respect to the statutory law as it will 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 a Texas 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 on January 1, 1990, the powers, duties, etc., 

of the Adult Probation Commission are transferred to the 

Department of Criminal Justice. Id. 4 1.20, at 3475. 

Section 3.10 of the act repeals article 42.121 of the Code 

of Criminal Procedure, which had provided for the Adult 

Probation Commission, and section 3.01 of the act adds a new 

article 42.13 providing for the community justice assistance 

division of the Department of Criminal Justice. Generally 

speaking, the act creates the community justice assistance 

division (the division) as the successor entity to the Adult 

Probation Commission. 

p. 5949 
Mr. Jerry Cunningham - Page 2 (JM-1131) 

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 a new article 42.131 to the code 

providing for the establishment of j'community supervision 

and corrections departments" (departments). Such departments, like their predecessor local probation departments, 

generally correspond to judicial districts. See Code Crim. 

Proc. art. 42.131, 5 2. 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. A department 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, 9 6. Subsection (b) of section 6 provides in 

pertinent part with respect to the community justice plan: 

A community justice plan required under 

this section must include: 

(1) a summary of services provided by or 

available to the department at the time the 

plan is submitted: 

(2) a description of proposed new 

facilities or programs or significant 

expansion of existing facilities or programs 

and a summary of how the department proposes 

to use the facilities or programs, with a 

particular emphasis on the plans of the 

department to expand the department's use of: 

(A) electronic monitoring programs; 

(B) testing for controlled substances; 

and 

(C) communitv corrections facilities, 

including: 

(i) restitution facilities: 

(ii) cou r t residential treatment 

facilities; 

(iii) substance abuse treatment 

facilities; 

p. 5950 
Mr. Jerry Cunningham - Page 3 (JM-1131) 

(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 ftsubstance abuse treatment facilities" and "court 

residential treatment facilities," which are included in the 

article 42.13 description of "community corrections 

facilities," are not statutorily defined. Section 2 0: 

article 42.131 appears to authorize 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 of which are contracted by local departments, must 

be licensed by the Commission on Alcohol and Drug Abuse. 

Provisions for the commission's licensure of certain 

1. Section 3 of article 42.131 provides that a 

department "may establish community.corrections facilities 

of the types described by section 5, Article 42.13." 

Section 5 of article 42.13 does not, however, appear to 

describe "types of facilities." Rather, it authorizes the 

community justice assistance division to take certain 

actions regarding the establishment of community corrections 

facilities (e.s., develop standards, .fund contracts, etc.). 

We think it apparent that the intent of section 3 of article 

42.131 is, in effect, to authorize a department to establish 

the "types of facilities" listed in section 6, subsection 

(b), of article 42.13, quoted above. 

p. 5951 
Mr. Jerry Cunningham - Page 4 (JM-1131) 

treatment facilities are codified in chapter 464, subchapter 

A, of the new Health and Safety Code. Acts 1989, 71st Leg., 

ch. 678, 0 1, at 2881. The provisions of subchapter A 

derive primarily from former article 5561cc, V.T.C.S., which 

was repealed by section 13 of the codifying act. The 

provisions of subchapter A must, however, be read with 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 1674 provides that "a person who offers or 

purports to offer chemical dependency treatment must obtain 

a license" from the commission. Id.; see also & ch. 678, 

at 2882. "Treatment" is defined as “a planned, structured, 

and organized program designed to initiate and promote a 

person's chemical-free status or to maintain the person free 

of illegal drugs." Id As you note in your request 

however, section 464.003(l) of subchapter A, read with 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 in subchapter A as amended, would fall within 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 by district judges. Code Crim. Proc. 

art. 42.131, 5 2. Section 6 of article 42.131 specifically 

provides that such employees are not state employees except 

for certain tort claims and workers 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 of a 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 for the services in 

question, the facility would be exempt under section 

2. Government Code section 311.031(c) provides, in 

part, that the repeal of a statute by a code does not affect 

an amendment of the statute by the same legislature that 

enacted the code. The amendment is preserved and given 

effect as part of the code provision. 

p. 5952 
Mr. Jerry Cunningham - Page 5 (JM-1131) 

464.003(l). Also, a facility with which the department 

contracted that was exempt from licensure by the commission 

under other provisions would not require licensure. See. 

e.s., id. 5 464.003(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 'to be the primary way of exempting 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 and programs by the division and 

by departments. A facility or program 

operating under the standards is not required 

to be licensed or otherwise approved by any 

other state or local agency. 

If a 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 not here address 

the legality of a department's contracting for the services 

of any particular facility. We address here only the 

question of licensure with respect to facilities with which 

a department has lawfully contracted. But see V.T.C.S. art. 

4413(32), 5 4A, providing for department contracts with 

other entities. 

4. Section 13(f) of article 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 for drug or alcohol dependency 

in a program or facility approved or licensed by the 

Texas Commission on Alcohol and Drug Abuse or in a 

program or facility that complies with standards 

(Footnote Continued) 

p. 5953 
Mr. Jerry Cunningham - Page 6 '(JM-1131) 

understand from discussions with the legal staff at the 

Adult Probation Commission, which will be succeeded by the 

community justice assistance division of the Department of 

Criminal Justice on January 1, 1990, that the division 

intends to consult with the Commission on Alcohol and Drug 

Abuse and establish standards for the types of community 

corrections facilities about which you are concerned. 

In light of the foregoing discussion, we will briefly 

respond to your questions as presented in your request. 

Your first question is: 

Are SATFs and CRTFs chemical dependence 

'treatment facilities' offering or purporting 

to offer 'treatment' (as those terms are 

defined in Section l(7) & (12) of Article 

5561cc, V.T.C.S. as amended)? 

"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 for their operation, which are to be adopted by 

(Footnote Continued) 

established by the community justice assistance 

division of the Texas Department of Criminal Justice, 

after consultation by the division with the 

commission. 

Also, section 11 of article 42.12 provides for basic 

conditions of probation and gives the sentencing court the 

authority to require the defendant to participate or remain 

under custodial supervision in a "community based" program 

or facility, see Code Crim. Proc. art. 42.12, § ll(lO), 

(12), or to 

participate in substance abuse treatment services in a 

program or facility approved or licensed by the Texas 

Commission on Alcohol and Drug Abuse, if the 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 of the offense . . . . 

Id. § ll(16). 

p. 5954 
Mr. Jerry Cunningham - Page 7 (JM-1131) 

the community justice assistance division and/or the local 

community supervision and corrections departments, and 

ultimately on whether a z:;z;Sfacility, regardless of the 

rubric attached to it, ,,treatment,, as defined in 

chapter 464, subchapter A, of the Health and Safety Code, as 

amended.5 

Your second question is: 

If so, are either or both CRTFs or SATFs made 

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 of the attached H.B. 2335: 

7-8, 13, 20-21, 24-25, 303-4, 56, 83, 90, 95, 

and 111. 

As discussed above, we do not think that SATFs or CRTFs 

operated by a local community supervision and corrections 

department, or the 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, except where 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 of the Code of Criminal Procedure, it would be exempt 

from licensure by the Commission on Alcohol and Drug Abuse 

under the provisions of that section. There is no "general 

5. Of course, if facilities denominated as substance 

abuse treatment facilities in fact offer substance abuse 

treatment, they will most likely be "treatment facilities,' 

offering l,treatmentl, within the meaning of article 5561cc, 

as amended, i.e., subchapter A of chapter 464 of the Health 

and Safety Code. The nature of court residential treatment 

facilities is not so apparent from that appellation. We 

note that the term ,,court residential treatment facility', is 

used in a rule adopted in 1988 by the Adult Probation 

Commission to refer to residential facilities operated by 

local probation departments for felony offenders "exhibiting 

drug and alcohol abuse problems or mental health problems.11 

37 T.A.C. 0 321.14. 

p. 5955 
1 

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

exemption" for substance abuse treatment facilities and 

court residential treatment facilities. 

Your third question is: 

If a local adult probation department receives state or federal funds under 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 the wording in H.B. 

2335, or, 

under Section 2c 

..,'I,.,. (H.B. 2335). 

of Article 42.13 

We .do not think that the receipt of state or federal 

funds by a local department (to be known as a "community 

supervision and corrections department" as of January 1, 

1990), is in itself determinative of the exempt status of a 

facility operated or funded by the department. The receipt 

of such funds does not in itself determine, for example, ' 

whether the facility is exempted as one "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) of article 42.13 of the Code of Criminal Procedure. 

Your fourth question is: 

Does TCADA 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 in the Act (as opposed to limiting 

its services to substance abuse counseling) 

without offering or purporting to offer 

treatment? 

We find no authority for the Commission on Alcohol and 

Drug Abuse to "waive" its licensure requirements. 

Your last question is: 

p. 5956 
, 

Mr. Jerry Cunningham - Page 9 (JM-1131) 

Were the~terms CRTF and SATF intended by the 

legislature to be synonymous entities for 

purposes of applying 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 of the commission's licensure provisions, is to be 

determined by the standards adopted for their operation by 

the community justice assistance -division and/or the local 

community supervision and corrections departments that 

operate them. The respective appellations indicate that 

CRTFs are to be 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 of the 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 of the Code of Criminal Procedure, 

and offering substance abuse 'treatment' as 

defined in Health and Safety Code section 

464.001, as amended, would not be exempt from 

licensure by the Commission on Alcohol and 

Drug Abuse as "a facility directly operated 

by the state" pursuant to section 464.003(l) 

of the Health and Safety Code, as amended. 

Neither would a facility offering such 

treatment services contract to a 

department be exempt asofidirectly operated by 

the state" unless the contractee directly 

operating the facility is a state agency. 

Such a facility would, however, be exempt 

from licensure by the commission if it 

operates under standards validly adopted by 

the community justice assistance division of 

p. 5957 
Mr. Jerry Cunningham - Page 10 (JM-1131) 

the Department of Criminal Justice, 

to article 42.13, section 2(c), of 

of Criminal Procedure. 

Very truly 

I . 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

pursuant 

the Code 

p. 5958