DAN MORALES

ATTORSEY GENERAI. 

## QBffice

of tip !Zlttornep %tate of Qexas November 141992

Mr.James A.Lynaugh Executive Director Texas Department ofCrimmal Justice P. 0. Box 13084 Austin Texas 78711 Opinion No. DM-179

Re: Whether a defendant sentenced under Penal Code section 12.422is entitled to credit for the time the defendant is confined in a substance abuse treatment facility toward the satisfaction of the term of confinement in the institutional division of the Texas Department of Crimi~J Justice (RQ-406)



## Qkneral

Dear Mr. Lynaugh:
On behalf of the Texas Department of Criminal Justice (the “TDCP), you ask whether a defendant is entitled to credit toward satisfaction of the term of confinement in the institutional division of the TDCJ for that amount of time the defendant, pursuant to a court order in accordance with section 12.422ofthe Penal Code, spent in a substance abuse treatment facility. You suggest that a defendant is not entitled to credit for that amount oftime. We agree.
The legislature added section 12.422to the Penal Code in 1991. See Acts 1991, 72d Leg., 2d C.S., ch. 10, H19.01, at 218. The section became effective October 1, 1992. Section 12.422(a), which pertains to your question, reads as follows:
A court may punish an eligible defendant* convicted of

an offense listed in Subsection (d)r of this section that is

‘Pursuant to subsection (b), a defendant is eligible for punishment in accordance with section 12422 ofthe Penal code if:

(1) a pmsentence investigation conducted under Section 9, Artide 42.12,code of crimii Procedure, or any other indicatioa SuggCSLS that drug
or akohol abuse significantlycontributed to the commission ofthe offense;

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otherwise punishable as a felony of the first, second, or third degree byimposing on the defendant: (1) a term of confinement and treatment in a substance abuse treatment facility operated by the community justice assistance division ofthe Texas Department of CXminal Justice for an indeterminate term ofnot more than one year or less than six months, except that the minimmn term for a defendant whose underlying offense is an offense under Article 67011-1, Revised Statutes, is30days; (2) a term ofnot less than twoyears or more than 10years in the institutional division ofthe Texas Department of0 Justice, to begin not later than the 30th day after the day on which the defendant is released from a substance abuse [treatment] facility; and
(3) a tine not to exceed SlO,tMO.[Footnotes added.] Thus, subsection (a) authorizes, but does not require, a court to sentence an eligible defendant to two separate and distinct periods of incarceration: first, a period of confinement and treatment in a substance abuse treatment facility that the communityjustice assistance division ofthe TDU operates (subsection (a)( 1)); and second, a period of confinement in the institutional division of the TDU (subsection (a)(2)).
The same act that added section 12.422to the Penal Code also added section 493.009to the Government Code. SeeActs 1991,726 Leg., 2d C.S.,ch. 10,Q19.03,

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at 219-21. Section 493.009(a) ofthe Government Code requires the TDCJ, through its communityjustice assistance division and itspardons and paroles division, and in cooperation with the Texas Commission on Alcohol and Drug Abuse, to develop a substance abuse treatment program for all defendants sentenced pursuant to section 12.422of the Penal Code. The substance abuse treatment program is to contain

“highly structured work, education, and treatment schedules, a clearly delineated authority structure, and well-defined goals and guidelines.” Gov’t Code 3493.009(d). In addition, section 493.009(g) directs the TDCJ to provide 12,000 beds for the purpose of operating the substance abuse treatment program.3 Id. 0493.009@4

Your question isbased on a hypothetical situation in which a defendant has been released from a substance abuse treatment facility, and thus has completed the period ofconfinement and treatment pursuant to subsection (a)( 1). In the scenario you descrii, the court has suspended the imposition of the term of confinement that the defendant isto spend in the institutional division of the TDCJ pursuant to subsection (a)(2).5 Subsequently, the court revokes the defendant’s probation.

%-he TDCJ also may use the beds to house persoos traosferred 00&r Gowrameat code dmptu 499,subchapter A, and Code of Crimii Promdurc article 42.14 section S(i); pcrsoas whose probation or parole the court has revokd, aad inmates audii in countyjails who are.awaiting trader to the institational division of TDCJ. Acts 199l,72d I+, 2d C.S., ch. 10, 0 19.03,at 220 (codificdaswtc4ldc0493.009(g)). Thckgi&t urespecificd,lunvcw,thatthcTDcJistoasethe bcds~tohouacpersollsscntencedundcrscdion12422otthcP~Code;thcTDCJmayuse the beds for the c&r specitied purposes only if beds are empty. Id. (codified M Gov’t Cmdc 5 41)3.009(k)). 'sectioa493.W(d) oftbeG ovemmcot Code directs the TDU to establish ‘a graded system of rewards and sanctions for inmates who participate’ ia the substaaa. abuse treatment prwam. However, a dcfendaot sentenced pursuant to section 12422 ofthe Penal Code “isnot entitled to cam awards oftime for good conduct.” la our opinions this prohiii the TDCJ from shortening, ia return for a comicted defendant’s good behavior, the length of time a person stays in the substance abase treatmeatf&v, it doesnat impactthe lengthof time a person is smtemed to sem in the iastitutioaal division oftheTDCJ.

Jwe note that section 6(e) of article 4212 of the code of criminal Roadluc specik+ authorks a court to suspend a defcodaat’s senteacc to coat&meat ia the institutional divi&m ofthe TDCJonectbcdcfcndaathasbccnrclcarcd~om~mcnt~trutmcntiaawbstanec~~ treatmerItfacility. section 6(e) states as foUowS

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Hence, you fnquire whether, in determining the length of time the defendant now must spend confined in the institutional division of the TDCJ, the defendant is credited with the amount of time he or she spent in confinement and treatment in the substance abuse treatment facility.

On its face, section 12.422ofthe Penal Code does not provide an answer to your question. Moreover, we were unable to find any legislative history indicating whether the legislature intended a court, upon revocation of probation and reimposition of the sentence, to credit a defendant for the time the defendant was confined and treated in a substance abuse treatment facility pursuant to section 12.422(a)(l) of the Penal Code. We look, therefore, to the statutory provisions governing the suspension of sentences, probation, and the revocation of probation, which the legislature has articulated in article 42.12 of the Code of Crimbml Proccdure.6

Article 42.12, section 26 of the Code of Oiminal Procedure governs the revocation of probation. Subsection (a) authorizes’ a court that is revoking a defendant’s probation after a hearing held pursuant to article 42.12, section 24.

(footnotecontiulmd)

defeodaat is rdcmcd from a sabstaacc abuse facility, for the purpose of ~thcMuttopkccthc&f~~mpr~ti~undcrthir~. A ewrtmaypkathe&fe~oaprobatiomundcrthissu~onitrown motioaoroothcmc4ioBofMyparty. xfprobatiooisimpmc4thepcriodof probatioomayaotcacwdthetenoofyearsimposeduodcr8caion 12422(a)(2), Penal Chdq and the court must impose as a condition of probatioo that the dcfcmlaat pmiidpate in a drug or alcohol abuse atlcr-care program. lfthecourtdocsnotimposcprobathoathedefendaatwitbinthc time permitted vlldcr this subscdiam, the puoi6hmeot w&r 8ectioo uap(a)(2), Penal G& isautomatically dkdmrged.

wadamas for the wmts ’ use ill suspending the imposition or execution of scatencc, phcing the dcfcodaot on pmbatioo, and reimposing sentena upon the defendant. The le.@atw has prmaii suds woditioos io artide 42U ofthe code ofCrimii Procedure. Artide 4212 authorizes thejudge ofa~eeoyrt~~originrljurisdietionofEliminJaaiomstosuspcDdthcimpositionofthescntcncc ~pLccthc~f~oapr~~ifccrtainapceificdconditionrircmct CodeCrim.Rocart. 42l2, i 3. Any defmxiant placed on probation remains under the rupcwision ot,aodwithiothe jurisdiction of, the scnteneing court. Id. ;see id. 00 10,24. Pursuant to article 42lZ section 11(a) of theCodeofCrimhlFWcedur~thccourtmustdetermhe the terms and conditions ofthe defemJaut’s probation. IIthc&f~tviolatcscmyoftbetermsor~~ofhicorherprobation,thccourt may rcwkc the defendant’s probation. Id. IS 24(a), 26(a).

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either to dispose ofthe case as ifthe defendant never had been on probation, or to reduce, to a specified extent, the term ofimprisonment to which the court originally sentenced the defendant Subsection (b) prohibits the court from considering, as part ofthe time that the defendant will be sentenced to serve, any part ofthe time that the defendant was on probation. However, the court must consider any time the defendant spent in actual confinement as a condition ofprobation under section 12 or 13 of article 42.12. Code Grim. Proc. art, 42.12, 026(b); see id. 96 12 (permitting court withjurisdiction ofmisdemeanor case to requires as condition of probation that defendant submit to period of detention), U(a). (b) (requiring court to require as condition ofprobation that defendant in DWJ case-submit to period of detention). Assuming for the moment that the period oftime a defendant spends in
a substance abuse treatment facility is a period in “actual confinement,” the court did not order it pursuant to section 12or 13 of article 42.12. Thus, article 42.12, section 26(b) of the Code of Crhubml Procedure does not permit a court to credit the defendant for the period of time the defendant spent in a substance abuse treatment facility.’
Other sections of article 42.12 authorize a court to sentence a defendant to particular types of alternative incarceration and expressly direct the court whether to apply the time the defendant spent in an alternative incarceration facility towards completion of the defendant’s sentence, should the court revoke the defendant’s probation. See id. 9%18, 19; see aLroid. Q 21. None of these sections apply specii%aUyto a sentence the court has imposed in accordance with section 12.422of the Penal Code.* Notably, however, article 42.12, section 19 authorizes a court,

‘Artidc 4203, section 2(a) of the Code of Crhiaal Procedure rquircs a court to give a defeodaot edit 00his or her scntenw orthe period ofconfinement that the defendant must serve as a eoditioo ofprobation for the time that the dcfeadaat has spent in jail inthe cause preaeaUybefore the court from the time of the defendaat’s arrest until the time the trial wart sentencea the derendaat. Any period ofwnfmemcnt and treatment the defendant spends ia a suhstamx abuse treatment fadlity pursuant

toPenal Code SC&on 12422(a)(l) ispart ofthe defendaot’s sentence; thus Cede ofcriminnl Roecdore attide 4203, uxtioa 2(a) does oat apply.
hide 42l2, section 18authorh acourt,under certainwnditioas, to require as awnditioa ofadefendant’sprobatiwthatthe~e~scmatwmofthrecto~monthsinarcstitution center. Code Grim. Proc art. 42X?, 5B(a). Section 18(c) prohii a court from applying time the dcfwdaot has spat in a rcrtihltioa wotcr toward the wmpletion ofthe defendant’s prison sentence if the court rcwkes the dcfcodaat’s pmbation. Article 4212, sdoc 21 authorizca awurt, ooder wrtaia amlithq to require as a condition ofa defendaat’s probatioa that the d&hat submit to electronic monitorkg. Id. i 21(a). Ifthe defendant violates a wnditioa of his or her probation, ‘the wart may revoke prob6tioo sod order the pmbatio~r to the term of imprisoamcnt or wnhement specitkd ia

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under certain conditions, to require as a condition of a defendant’s probation that the defendant serve a term ofone to twenty-four months in a community corrections facility. Id. 0 19(b). Article 4212 section 19(d) ofthe Code ofCrimmal Procedure expressly provides that a court must not apply toward the completion of a defendant’s sentence the amount of time the defendant has spent in a community corrections facility? The Code of CrimU Procedure does not define “community corrections facility,” but article 4213, section 6(b) of the Code of Crimbml Procedure lists several types ofalternative incarceration facilities that a community supervision and corrections department10 may choose to operate as a community corrections facility. Id. art.4213, 06(b)(2)(C); see id. art 4212 0 19(a) (defining “wmmmtity corrections facility” in terms of facilities Code Qiminal Procedure article 4213, section 5 lists); T* v. St&e, 801 S.W.2d 958,959 (%L App.-Dallas 1990, no writ) (stating that Code Crimimd Procedure article 4212 section 19(a) should refer to section 6(b), not section 5, of article 42.13); Attorney General opinion JIM-1131(1989) at 3 t~l (stating that Code Crimmal Procedure article 42.131, section 3(a), which also refers to Code Crimimd Procedure article 42.13,

(footnote coathoed) the.probdmcr’

s scotenee.’ Id. 621(b) (aspmtDdcdbyAds1989,7~~,eh.1044f5). wewiu diswmarticle4221l,sectioa19iathetutin~. 9Artide42~scdiom18(c)oftbeCodeofCrimiaalRoccd~~probibitJawurtfrom applyiog time spwt ia a rcathha wrttcr toward cmapktioa ofthe defeadaat’s prka seatcaa ifthe court revokes the defeadant’s probation Section 18(a) provides thab aader certaia waditkq ajodge may require as a eonditioo of a defcadaat’s probation that the defer&it - a term of thrcz to tswhr. mooths in a ratitutioa water. Geoedy, a defcmiaat may lcavc the reatitotioa ceater oaiy to gotowork,to attcad edacatioaal orrehabilitative program& aad toperform awmmonity service worL; ~~otbn~~thcdcfcndantmustbcEonfincdtothcrcstitutiomantcr. Id.OlNj) toArtielc42U~~2(a)ofthccodcofcriminnlproad~rcquLcs~distridjudgcs hying~ascsinuehjudiekldistridkthcstatetoestaMishacommunitysupcrvisionand corrcbm dcpartmeot (the dcparboeot). Anyjudge try@ aimical carcr,whcthcr thejodge scmes as adistrktjudge or astatotory anut judge, may partidpatc inthe maoagcmeot ofthe departmeat. Chic. Grim. Proc art. 42l3l, 02(a). The departmwt, actiog alone or with soother departmeot, a wuaty, or a murdci~, may cstabhh community eorr&ioas fadiitics. Id. $3(a). Generally, the districtjudges io ajttridhmservcd bya department mast catablisb a communityjustice woncil, which coaacil isto provide “coatiookg policy goidaow ad direction for the devhpmeat of criahal jutice plans aad eoomooity wwxtioas facilities and programs.’ Id. 63(b). l%e community justice wuncil must sobmit~~~Qwm~~justiaplantothcarmmunityjuJtiec~~divisionofthcTDcJ, widchpknmu&omongotherthiogqsummari?c scnkwtk&partoIwtcurrentlyprovidcqdcaaibc popascdncwacxpandcd~~eamdioa~~~~ccsforoffcndcn~thc arcothcdepartmwt-stillaccds. Id.

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section 5 to define “community corrections center,” should be read to refer to section 6(b) of article 42.13). Among the types of wmmunity corrections facilities listed are substance abuse rr&mtvrt fhcilith, custody facilities

and boot camps, work facilities, and halfwayhouses. Id. art.42.13,s 6(b)(2)(C).

We understand that a wmmunity wrrections facility that is operated as a

“substance abuse treatment facility”in accordance with article 42.13of the Code of Crimi~I Procedure differs from a “substance abuse treatment facility” that is operated in accordance with section 493.009 of the Government Code. Significantly, for instance, a community corrections facility is established and administered by a local entity, the wmmunity supervision and corrections departmemrt Seeid. arts. 42.U. 06.42.131; supra note 10. The county or counties served by the wmmunity corrections center must provide the physical facilities, equipment, and utilities. Code Crim. Rot. art 42.13,s 8(a). In wntrast, as stated above, a substance abuse treatment facility operated pursuant to section 493.009of the Government Code is developed and administered by the TDCJ, and the TDCJ must provide the facilities. See supm notes 3-4 and accompanying teat. Nevertheless, we believe that the nature of the time a probationer spends at a substance abuse facility, whether such facility is operated pursuant to the relevant articles in the Code of CXminaJ Rocedure or pursuant to section 12.422 of the Penal Code, isthe same. In either type offacility, the probationer willparticipate in programs that willattempt to break the person’saddiction to alcohol or other drugs.

In our opinion, when a wurt revokes a defendant’s probation, the court should treat the amount oftime a defendant served in a substance abuse treatment facility pursuant to section 12.422(a)(l) of the Penal Code in the same manner as the court must treat the amount of time a defendant served in a community corrections center that is operated as a substance abuse treatment facility. Thus, a judge must not apply time the defendant spent in a substance abuse treatment facility pursuant to section 12.422(a)(1)ofthe Penal Code toward completion ofthe defendant’s sentence ifthe wurt revokes the defendant’s probation.

SUMMARY
A judge must not apply time spent in a substance abuse treatment facility pursuant to section 12422 of the Penal Code

l*Weuoderstand that asheriffabo may operate a community correctionsfacility.

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toward completion of the defendant’s sentence if the court revokes the defendant’s probation.

DAN MORALES Attorney General ofTexas
WILL PRYOR First Assistant Attorney General

MARYKELLER Deputy Assistant Attorney General

RENEAHICKS Special Assistant Attorney General

MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by Kymberly K.Oltrogge Assistant Attorney General

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