Hon. A. Ross Rommel

Traffic Safety Administrator Texas Department of Community Affairs P. 0. Box 

### 13166,Capitol Station Austin, Texas 

### 78711

Dear Mr. Rommel: Opinion No. M-985 Re: Applicability of the Adult Probation and Parole Lawto 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 Lawstates that the newCode eliminated the Suspended Sentence Lawand expanded the Adult Probation Lawto make it cover all crimes, both felonies and misdemeanors.” 2. “If the Adult Probation Lawcan 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. 4of the Adult Probation Law(Art. 42.12) apply to the pre-sentence investigation for afirst offense DWImisdemeanor?”

3. “Does the judge under the Misdemeanor Probation Law(Art. 42.13) have the authority to refer a probationer to a treatment center as acondition 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 acondition of probation under the Misdemeanor Probation 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 acondition of probation that the probationer undertake treatment at atreatment 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 noapplicability 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 sametime 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 andadministered under this Article.” Accordingly, Article 42.13 governs probation in all misdemeanor cases andArticle 42.12 does not have any application to misdemeanors.

Your second question asks whether the court, in deciding whether to grant probation in amisdemeanor 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 4of Article 42.12.

Since Article 42.12 does not apply to misdemeanor cases, no investigation can be madeunder the authority of Section 4thereof. However, an equivalent investigation can be ordered by the court in considering probation in amisdemeanor conviction. Section 3(d) of Article 42.13 provides:

“Whena 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 acourt must have sufficient information so as to be able to makethe 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, maybe 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 acourt Ina 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 adriver’s education class.

Section 5of 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, acourt mayrequire adefendant in a misdemeanor case whoreceives probation to submit to atreatment center, or take a driver’s education course, or both, in the interest or rehabilitating a defendant and preventing him from committing anadditional offense of driving while intoxicated.

SUMMARY ------- Article 42.12, Texas Code of Criminal Procedure (the Adult Probation andParole Law) is not applicable to misdemeanor cases; rather
, probation in misdemeanor cases is governed byArticle 42.13. Aninvestigation of the type authorized by Section 4of Article 42.12 maybe ordered by the Court in a misdemeanor case. Enrollment in atreatment center and/or a driver’s education class maybe madeacondition of probation by the court. Ve truly yours,

Prepared byLonny F. Zwiener Assistant Attorney General -4807-Hon. A. Ross Rommel, page 5. (M-985)

APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman W.E. Allen, Co-Chairman John Banks Gordon Cass Howard Fender SamJones SAMMCDANIEL Staff Legal Assistant NOLAWHITE First Assistant ALFREDWALKER Executive Assistant

-4808-