Hon. A. Ross Rommel 

Traffic Safety Administrator 

Texas Department of Community 

Affairs 

P. 0. Box 13166, Capitol 

Stat ion 

Austin, Texas 78711 

Dear Mr. Rommel: 

Opinion No. M-985 

Re: Applicability of the 

Adult Probation and 

Parole Law to misdemeanors and related 

questions regarding 

the conditions that 

may be imposed upon 

the granting of probation. 

You have asked the opinion of this office in connection with the applicability of the Adult Probation and 

Parole Law (Article 42.12, Texas Code of Criminal Procedure, 

1965) to misdemeanors, and in particular to the offense of 

driving while intoxicated, first offense, as defined by 

Article 802, Texas Penal Code. 

Your questions are as follows: 

1. “Does the Adult Probation Law (Art. 

42.12) strictly apply to felony cases 

or can it be construed to apply to 

both felonies and misdemeanors? The 

Honorable W. A. Morrison in his interpretative commentary following the 

Adult Probation Law states that the 

new Code eliminated the Suspended Sentence Law and expanded the Adult Probation Law to make it cover all crimes, 

both felonies and misdemeanors.” 

2. “If the Adult Probation Law can apply 

to misdemeanors such as first offense 

DWI, would it be within the scope of 

authority of the judge to direct the 

probation officer to fully investigate 

(including a physical and mental examination of the defendant, whenever 

-4804- 
Hon. A. Ross Rommel, page 2. (M-985) 

practicable) and report to the Court 

in writing the circumstances of the 

offense criminal record, social history, 

and present condition of the defendant? 

In effect, could Sec. 4 of the Adult 

Probation Law (Art. 42.12) apply to the 

pre-sentence investigation for a first 

offense DWI misdemeanor?” 

3. “Does the judge under the Misdemeanor 

Probation Law (Art. 42.13) have the 

authority to refer a probationer to a 

treatment center as a condition of probation if, based upon the sufficiency 

of the evidence presented to the judge 

prior to sentencing, it appears that 

such probationer is identified as a 

problem drinker. Does the judge have 

the authority to send a probationer 

(classified as a social drinker) to a 

driver’s education class as a condition 

of probation under the Misdemeanor Probat ion Law?” 

4. “Is there any discretionary or implied 

authority under the Misdemeanor Probation Law (Sec. 5, Art. 42.13) which 

would allow the judge to put as a condition of probation that the probationer 

undertake treatment at a treatment center 

(problem drinker), or the attendance at 

driver’s education class (social drinker), 

thereby promoting rehabilitation of the 

probationer?” 

In answering you first question, whether Article 

42.12 applies to misdemeanors as well as felonies, it should 

be noticed that there is no express language in the statute 

which would limit its terms to felonies or exclude misdemeanors from the operation of the probation provisions of the 

statute. There can be no applicability of the parole sections 

of the statute to misdemeanors since parole applies only to 

prisoners serving in the penitentiary and there can be no 

penitentiary time assessed in misdemeanor cases. 

Texas Penal Code). 

(Article 47, 

-4805- 
, 

- - 

Hon. A. Ross Rommel, page 3. (M-985) 

However, Article 42.13, the Misdemeanor Probation 

Law, was passed by the Legislature at the same time as Article 42.12 and the two statutes must be read in harmony. The 

first words of Article 42.13, as contained in Section 1,are: 

“All probation in misdemeanor cases shall 

be granted and administered under this 

Article.” 

Accordingly, Article 42.13 governs probation in all 

misdemeanor cases and Article 42.12 does not have any application to misdemeanors. 

Your second question asks whether the court, in deciding whether to grant probation in a misdemeanor case, is 

authorized to order an investigation made into the circumstances 

of the offense charged, the criminal and social record of the 

defendant, and his present mental and physical condition, all 

as provided for in Section 4 of Article 42.12. 

Since Article 42.12 does not apply to misdemeanor 

cases, no investigation can be made under the authority of 

Section 4 thereof. However, an equivalent investigation can 

be ordered by the court in considering probation in a misdemeanor conviction. Section 3(d) of Article 42.13 provides: 

“When a defendant has applied for probation, 

the court during the trial of his case must 

receive competent evidence concerning the 

defendant’s entitlement to probation.” 

Section 5(b) provides: 

“The period and terms of probation shall be 

designed to prevent recidivism and promote 

rehabilitation of the probat loner. ” 

Together, the foregoing provisions suggest that a court must 

have sufficient information so as to be able to make the initial decision of probation and then develop suitable conditions 

of probation to “prevent recidivism and promote rehabilitation.” 

Accordingly, an investigation of the type provided 

for in Article 42.12, Section 4, may be ordered by the Court in 

misdemeanor cases governed by Article 42.13. 

-4806- 
Hon. A. Ross Rommel, page 4. (M-985) 

Your third and fourth questions are directed to 

the authority of a court In a misdemeanor probation case to 

require the defendant, as a condition of parole, to submit 

to a “treatment center” (which treats drinking problems) 

and/or to attend a driver’s education class. 

Section 5 of Article 

tions and terms of misdemeanor 

to the court the discretion to 

over and above certain express 

42.13 deals with the condiprobation and expressly leaves 

place conditions on probat ion 

conditions. 

As noted above, Section 5(b) directs that the 

period and terms of a probation “shall be designed to prevent recidivism and promote rehabilitation.” 

Therefore, a court may require a defendant in a 

misdemeanor case who receives probation to submit to a treatment center, or take a driver’s education course, or both, 

in the interest or rehabilitating a defendant and preventing 

him from committing an additional offense of driving while 

intoxicated. 

SUMMARY 

------- 

Article 42.12, Texas Code of Criminal 

Procedure (the Adult Probation and Parole 

Law) is not applicable to misdemeanor cases; 

rather , probation in misdemeanor cases is 

governed by Article 42.13. An investigation 

of the type authorized by Section 4 of Article 42.12 may be ordered by the Court in a 

misdemeanor case. Enrollment in a treatment center and/or a driver’s education class 

may be made a condition of probation by the 

court. 

Ve truly yours, 

Prepared by Lonny F. Zwiener 

Assistant Attorney General 

-4807 - 
Hon. A. Ross Rommel, page 5. (M-985) 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

John Banks 

Gordon Cass 

Howard Fender 

Sam Jones 

SAM MCDANIEL 

Staff Legal Assistant 

NOLA WHITE 

First Assistant 

ALFRED WALKER 

Executive Assistant 

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