                             ATTORNEY GENERAL OF TEXAS
                                          GREG        ABBOTT




                                              February 5, 2013



Mr. David Slayton                                      Opinion No. GA-0986
Administrative Director
Office of Court Administration                         Re: Whether a prosecutor may require that a
Post Office Box 12066                                  defendant enter a guilty plea as a condition for
Austin, Texas 78711-2066                               participation in a pretrial diversion program under
                                                       section 76.011 of the Texas Government Code
                                                       (RQ-1 072-GA)

Dear Mr. Slayton:

        You ask whether a prosecutor may require that a defendant enter a guilty plea as a condition
of a pretrial intervention program under section 76.011 of the Government Code. 1 Pretrial
intervention, also known as pretrial diversion, generally involves a written agreement between the
defendant and the prosecutor approved by the court before trial. As one court described the practice,

                 [t]he State agrees to dismiss the case if the defendant performs certain
                 conditions within a specified period of time. Both the State and the
                 defendant request that the trial court continue the present trial setting
                 to a certain date in the future to give the defendant time to comply
                 with the agreed conditions .... On that date, the defendant must
                 appear before the trial court. If the defendant has complied with the
                 conditions of the agreement, the trial court grants the State's motion
                 to dismiss the pending criminal charges. If the defendant has not
                 complied with the conditions of the agreement, the case proceeds to
                 trial as scheduled.

Fisher v. State, 832 S.W.2d 641,643-44 (Tex. App.-Corpus Christi 1992, no writ). You explain
that "[p]re-trial diversion pushes the time to establish guilt or innocence into the future and enables
an individual to complete the program and have the charges dismissed." Request Letter at 3. You
contend that "[t]he program was designed to allow the State to dismiss a case if the defendant
complies with the agreed to conditions" and that "[r]equiring a defendant to plead guilty is
inconsistent with this purpose." ld.


        1
         See Letter from Mr. David Slayton, Admin. Dir. , Office of Court Admin., to Honorable Greg Abbott, Tex.
Att'y Gen. at 1, 4 (July 16, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").
Mr. David Slayton - Page 2                       (GA-0986)




         In examining a statute, our goal is "to give effect to the Legislature's intent as expressed in
its plain language." R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336
S.W.3d 619, 628 (Tex. 2011). Chapter 76 establishes community supervision and corrections
departments ("Departments") in judicial districts and sets forth their various powers and
responsibilities. See generally TEX. Gov'TCODEANN. §§ 76.001-.018 (West 2005 & Supp. 2012).
Subsection 76.011(a) provides that a Department may "operate programs for ... the supervision and
rehabilitation of persons in pretrial intervention programs[.]" /d.§ 76.01l(a)(l) (West Supp. 2012).
Subsection 76.011(b) specifies that such a program "may include reasonable conditions related to
the purpose of the program, including testing for controlled substances." /d. § 76.011(b). The
statute does not, however, provide further guidance on the purpose of a pretrial intervention program.
Nor does the statute elaborate on what constitutes a "reasonable condition," other than to expressly
provide that drug testing is one such condition, or indicate how reasonableness shall be determined.

        Given the lack of any statutory or judicial authority addressing your question, our guidance
is necessarily limited. In some cases legislative silence can support deductions or conclusions about
legislative intent. PPG Indus., Inc. v. 1MB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 84,
87 (Tex. 2004). Here, however, the gap in legislative language is simply too large for the blanks to
be filled in.

         As you point out, according to the court in Fisher v. State, the purpose of pretrial intervention
is to provide the defendant with an opportunity to have the charges dismissed prior to a finding of
guilt or innocence. 832 S .W.2d at 643. Requiring a guilty plea as a condition of pretrial intervention
arguably conflicts with this purpose. Moreover, the Legislature recently amended the criminal
expunction statute to provide that, under certain circumstances, a person who has completed a
pretrial intervention program under section 76.011 is entitled to have his arrest records expunged.
Act of May 31,2009, 81stLeg., R.S., ch. 1103, § 17(b), 2009 Tex. Gen. Laws 3010,3019-20 (now
codified at TEX. CODE CRJM. PROC. ANN. art. 55.01(a)(2)(A)(ii) (West Supp. 2012)). This suggests
that a pretrial intervention program is intended to give a defendant a chance to atone for wrongdoing
without suffering the consequences of a judgment against him, which lends further support to the
view that requiring a guilty plea is inconsistent with the purposes of pretrial intervention.

        On the other hand, there is no legal authority directly limiting the scope of a pretrial
intervention agreement. At least one court has found that "[p]re-trial diversion agreements ... are
akin to negotiated plea agreements, which have been equated to a contract." In re D.R.R., 322
S.W.3d 771,773 (Tex. App.-EJ Paso 2010, no pet.) (citing Ex parte Williams, 637 S.W.2d 943,
947-48 (Tex. Crim. App . 1982)). The Texas Court of Criminal Appeals has noted that "plea
agreements may contain a variety of stipulations and assurances, depending on the desires of the
State and the defendant." State v. Moore, 240 S.W.3d 248,250 (Tex. Crim. App. 2007). The Court
further noted that "the terms of the plea agreement are left solely to 'the parties who are dealing at
arm's length[,] [and] [t]his Court will not interfere with those terms unless they appear to be
manifestly unjust."' /d. at 251 (quoting Williams, 637 S.W.2d at 948); see also TEX. CODECRJM.
PROC. ANN. art. 2.01 (West 2005) ("It shall be the primary duty of all prosecuting attorneys,
including any special prosecutors, not to convict, but to see that justice is done."). While it may be
Mr. David Slayton - Page 3                     (GA-0986)




fair to say that pretrial diversion agreements are different in character from plea agreements, it is
equally fair to say that neither statutes nor judicial decisions offer useful guidance about the
permissible parameters of pretrial diversion agreements. We have not found any law prohibiting a
prosecutor from using a guilty plea as a condition of pretrial intervention.

         Due to the lack of legal authority on this matter, we cannot advise you definitively as to
whether a prosecutor may require defendants to plead guilty as a condition for pretrial intervention
under section 76.011 of the Government Code. Our office can advise you only on the current state
of the law. We cannot make law where it does not yet exist. Because existing Texas law contains
virtually no useful legal guidance regarding pretrial intervention programs, it is for the Legislature
to provide a more explicit legal framework governing the scope and operation of pretrial intervention
in this State. Until the Legislature does so, we cannot answer your first question.

       You seek an answer to your second question only if we answer your first question in the
affirmative. Because we do not definitively answer your first question, we will not address your
second question.
Mr. David Slayton - Page 4                     (GA-0986)



                                       SUMMARY

                       Due to the lack of controlling legal authority, we cannot
               advise you whether a prosecutor may require defendants to plead
               guilty as a condition for pretrial intervention under section 76.011 of
               the Government Code. It is for the Legislature to provide a more
               explicit legal framework governing the scope and operation of pretrial
               diversion in this State.

                                              Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee
