DAN MORALES 

ATTORSEY GENERAI. 

QBffice of tip !Zlttornep 

%tate of Qexas 

November 141992 

Mr. James A. Lynaugh 

Executive Director 

Texas Department 

of Crimmal Justice 

P. 0. Box 13084 

Austin Texas 78711 

Opinion No. DM-179 

Re: Whether a defendant sentenced 

under Penal Code section 12.422 is 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 12.422 of the Penal 

Code, spent in a substance abuse treatment facility. You suggest that a defendant is 

not entitled to credit for that amount of time. We agree. 

The legislature added section 12.422 to the Penal Code in 1991. See Acts 

1991, 72d Leg., 2d C.S., ch. 10, H 19.01, 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 of the 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 significantly contributed to the commission of the offense; 

p. 937 
Mr. James A. Lynaugb - Page 2 W-179) 

otherwise punishable as a felony of the first, second, or third 

degree by imposing on the defendant: 

(1) a term of confinement and treatment in a substance 

abuse treatment facility operated by the community justice 

assistance division of the Texas Department of CXminal Justice 

for an indeterminate term of not 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, is 30 days; 

(2) a term of not less than two years or more than 10 years 

in the institutional division of the Texas Department of 0 

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 

community justice assistance division of the 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 12.422 to the Penal Code also added section 

493.009 to the Government Code. See Acts 1991,726 Leg., 2d C.S., ch. 10, Q 19.03, 

p. 938 
Mr. James A Lynaugh - Page 3 W-179) 

at 219-21. Section 493.009(a) of the Government Code requires the TDCJ, through 

its community justice assistance division and its pardons 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 

12.422 of 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 

3 493.009(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. 

0 493.009@4 

Your question is based on a hypothetical situation in which a defendant has 

been released from a substance abuse treatment facility, and thus has completed the 

period of confinement 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 is to 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 county jails 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 of the Penal Code “is not entitled to cam 

awards of time 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 

treatmeat f&v, it does nat impact the length of time a person is smtemed to sem in the 

iastitutioaal division of the TDCJ. 

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 of the 

TDCJonectbcdcfcndaathasbccnrclcarcd~om~mcnt~trutmcntiaawbstanec~~ 

treatmerIt facility. section 6(e) states as foUowS 

p. 939 
ML James A Lynaugh - Page 4 W-179) 

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 12.422 of the 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& is automatically 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 of the code of Crimii Procedure. Artide 4212 authorizes the judge 

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 of the defemJaut’s 

probation. IIthc&f~tviolatcscmyoftbetermsor~~ofhicorherprobation,thccourt 

may rcwkc the defendant’s probation. Id. IS 24(a), 26(a). 

p. 940 
Mr. James A Lynaugh - Page 5 0x-179) 

either to dispose of the case as if the defendant never had been on probation, or to 

reduce, to a specified extent, the term of imprisonment to which the court originally 

sentenced the defendant Subsection (b) prohibits the court from considering, as 

part of the time that the defendant will be sentenced to serve, any part of the time 

that the defendant was on probation. However, the court must consider any time 

the defendant spent in actual confinement as a condition of probation under section 

12 or 13 of article 42.12. Code Grim. Proc. art, 42.12, 0 26(b); see id. 96 12 

(permitting court with jurisdiction of misdemeanor case to requires as condition of 

probation that defendant submit to period of detention), U(a). (b) (requiring court 

to require as condition of probation that defendant in DWJ case- submit to period of 

detention). Assuming for the moment that the period of time a defendant spends in 

a substance abuse treatment facility is a period in “actual confinement,” the court 

did not order it pursuant to section 12 or 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 aLro id. Q 21. None of these sections apply 

specii%aUy to a sentence the court has imposed in accordance with section 12.422 of 

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 00 his or her scntenw or the period of confinement that the defendant must serve as a 

eoditioo of probation for the time that the dcfeadaat has spent in jail in the cause preaeaUy before the 

court from the time of the defendaat’s arrest until the time the trial wart sentencea the derendaat. 

Any period of wnfmemcnt and treatment the defendant spends ia a suhstamx abuse treatment fadlity 

pursuant to Penal Code SC&on 12422(a)(l) is part of the defendaot’s sentence; thus Cede of criminnl 

Roecdore attide 4203, uxtioa 2(a) does oat apply. 

hide 42l2, section 18 authorh a court, under certain wnditioas, to require as a wnditioa 

ofadefendant’sprobatiwthatthe~e~scmatwmofthrecto~monthsinarcstitution 

center. Code Grim. Proc art. 42X?, 5 B(a). Section 18(c) prohii a court from applying time the 

dcfwdaot has spat in a rcrtihltioa wotcr toward the wmpletion of the defendant’s prison sentence if 

the court rcwkes the dcfcodaat’s pmbation. Article 4212, sdoc 21 authorizca a wurt, ooder wrtaia 

amlithq to require as a condition of a defendaat’s probatioa that the d&hat submit to electronic 

monitorkg. Id. i 21(a). If the 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 

p. 941 
Mr. James A Lynaugh - Page 6 (m-179) 

under certain conditions, to require as a condition of a defendant’s probation that 

the defendant serve a term of one to twenty-four months in a community corrections 

facility. Id. 0 19(b). Article 4212 section 19(d) of the Code of Crimmal 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 of alternative incarceration facilities that a community 

supervision and corrections department10 may choose to operate as a community 

corrections facility. Id. art. 4213, 0 6(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. 6 21(b) ( aspmtDdcdbyAds1989,7~~,eh.1044f5). wewiu 

diswmarticle4221l,sectioa19iathetutin~. 

9Artide42~scdiom18(c)oftbeCodeofCrimiaalRoccd~~probibitJawurtfrom 

applyiog time spwt ia a rcathha wrttcr toward cmapktioa of the defeadaat’s prka seatcaa if the 

court revokes the defeadant’s probation Section 18(a) provides thab aader certaia waditkq a jodge 

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 

go to work, to attcad edacatioaal or rehabilitative program& aad to perform a wmmonity service worL; 

~~otbn~~thcdcfcndantmustbcEonfincdtothcrcstitutiomantcr. Id.OlNj) 

toArtielc42U~~2(a)ofthccodcofcriminnlproad~rcquLcs~distridjudgcs 

hying~ascsinuehjudiekldistridkthcstatetoestaMishacommunitysupcrvisionand 

corrcbm dcpartmeot (the dcparboeot). Any judge try@ aimical carcr, whcthcr the jodge scmes as 

a distrkt judge or a statotory anut judge, may partidpatc in the maoagcmeot of the departmeat. Chic. 

Grim. Proc art. 42l3l, 0 2(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 district judges 

io a jttridhmservcd by a department mast catablisb a community justice woncil, which coaacil is to 

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. 

p. 942 
Mr. James A Lynaugh - Page 7 c-N-179) 

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 halfway houses. 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 42.13 of 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 See id. arts. 42.U. 0 6.42.131; 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 493.009 of 

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, is the same. In either type of facility, the probationer will participate in 

programs that will attempt to break the person’s addiction to alcohol or other drugs. 

In our opinion, when a wurt revokes a defendant’s probation, the court 

should treat the amount of time 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) of the Penal Code toward completion of the 

defendant’s sentence if the 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*We uoderstand that a sheriff abo may operate a community corrections facility. 

p. 943 
Mr. James A Lynaugh - Page 8 W-179) 

toward completion of the defendant’s sentence if the court 

revokes the defendant’s probation. 

DAN MORALES 

Attorney General of Texas 

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 

p. 944