                               The Attorney        General of Texas
                                               October 17, 1986
JIM MATTOX
AttorneyGeneral


Supreme Court Building         Mr. Robb Southerland               Opinion No. JM-564
P. 0. BOX 12548                Chairman
Austin, TX. 78711-2548         Texas Commission on Alcohol        Re:   Whether a proposed rule of the
51214752501
                                  and Drug Abuse                  Texas Commission on Alcohol and Drug
Telex 9101674-1367
Telecopier  5121475-0266
                               1705 Guadalupe                     Abuse, regarding certification of
                               Austin, Texas   78701              DWI education programs, contravenes
                                                                  state or federal anti-trust laws,
714 Jackson, Suite 700                                            and related questions
Dallas, TX. 752024506
214l7428944
                               Dear Mr. Southerland:

4824 Alberta Ave.. Suite 180        You request an Attorney General Opinion on behalf of the DWI
El Paso, TX. 79905.2793        Certification CommIttee. The DWI Certification Committee consists of
915/x33-3464                   four members, each one representing one of the following agencies:
                               Texas Department of Public Safety, Texas Commission on Alcohol and
-    Texas, Suite 7W           Drug Abuse, Texas Department of Highways and Public Transportation,
I   Aon, TX. 77002-3111        and Texas Adult Pwbation Commission. Its powers are described in
7131223-W                      section 6d, of artjcle 4'2.12of the Code of Criminal Procedure, which
                               was enacted in 1985:
606 Broadway, Suite 312
Lubbock, TX. 79401-3479
                                           Sec. tld..If a person convicted of an offense
8061747-5238                            under Alrticle 67011-1, Revised Statutes, is
                                        punished under Subseciion (c) of that article and
                                        is placed on probation, the court shall require, as
43M) N. Tenth, Suite B
McAllen. TX. 78501-1885
                                        a conditl.o'nof the probation, that the defendant
512/682-4547                            attend arz successfiully complete before the 181st
                                        day after, the dav
                                                         . Drobation
                                                           .          is eranted an educa-
                                        tibnal program jointly approved by the Texas
200 Main Plaza, Suite 400
                                        Commissioq on Alcoholism, the Department of Public
San Antonio. TX. 782052797
512/225-4191
                                        Safety, the Traffic Safety Section of the State
                                        Department of Highways and Public Transportation,
                                        and the %!xas Adult Probation Commission designed
An Equal OpportunityI                   to rehabrlitate persons who have driven while
Affirmative Action Employer             intoxicatzd. The Texas Commission on Alcoholism
                                        shall pub&h   the jointly approved rules and shall
                                        monitor ;atd coordinate the educational programs.
                                        (Emphasis *added).

                               See Acts 1985, 69t.h Leg., ch. 427, 51, at 1538. Article 67011-1,
                               G.C.S..  defines thbeoffense of driving while intoxicated.

                                    The members o,E the DWI Certification Committee have joint
                               authority to approve educational programs designed to rehabilitate


                                                             p. 2505
Mr. Robb Southerland - Page 2   (JM-564)




persons who have driven while intoxicated. The rules made by the
committee in exercise of this power are published by the Texas
Commission on Alcohol and Tlrug Abuse, the successor to the Texas
Commission on Alcoholism. .--
                            Ike Acts 1953, 53d Leg., ch. 411, at 983,
repealed by Acts 1985, 69th Leg., ch. 632, at 2328. See also V.T.C.S.
arts. 5561~~. 5561c-2.

     you inquire about the :Legality of the following proposed rule
before the coaxaittee:

             153.4. Program Certification. A certificate
          issued under this Act expires two years from the
          date of issuance. A program seeking certification
          must comply with the provisions of this Act and
          with the rules, re:gulationsand standards of the
          commission adoptt,d under this Act.       Programs
          seeking initial certification must establish that
          a need exists in fhe proposed county or counties
          to be served and n;st provide proof of support for
          the program frox- the appropriate adjudicating
          court(s) and protztion department(s). A certi-
          ficate may be is&&d when the commission receives
          a completed prescribed application form.       The
          certificate will '>ecome effective on the date ‘of
          issuance. A program shall be monitored by the
          commission or its designated representative prior
          to issuing program.certification or during the two
          year certificaticn period.     Certified programs
          will be listed at; potential referral schools in
          the Statewide DWL Education Program Directory.
          Non-certified prof,ramsare not eligible to receive
          referrals.   AppMcations   for certification are
          available from the Commission's Statewide DWI
          Education Program Director. Texas Commission on
          Alcohol and Drug Pbuse. . . . (Emphasis added).

     Your questions are as follows:

             1. Will the Proposed rule violate any pro-
          visions of the Sherman Anti-trust Act or other
          anti-trust legislz.tionin Texas?

             2. Does TCALJA have authority to require, in
          Its rules, proof of local need for a new program
          in each county pr,,posedto be served? If so, may
          the Commission designate that such documentation
          of need be suppllad by letters of support from
          referring judges l.r;
                              the county?

     We do not believe you !aave authority to require proof of local
need for a new program in any county; hence, we need not consider your


                                p. 2506
Mr. Robb Southerland - Page 31 (JM-564)




first question on the ant,L--trustimplications of the "local need"
requirement.

     Administrative regulations issued pursuant to an agency's rule-
making power must be in hzzmony with the general objectives of the
statute. Gerst v. Oak Clifc Savings and Loan Association, 432 S.W.2d
702 (Tex. 1968). The purpose of article 42.12, section 6d of the Code
of Criminal Procedure is to require persons placed on probation for
driving while intoxicated to complete an educational program designed
to rehabilitate them. This purpose is to be implemented through the
education programs approved by the four agencies enumerated in the
statute. The joint rule-making power of the agencies is directed at
seeing that the educaticnal programs are designed to promote
rehabilitation of such persons. The committee has no authprity to
base its certification of 2.n educational program on proof of a local
need and local judicial support for it. It has no duty or authority
to protect particular educational programs from competition or
otherwise promote their economic welfare.

     The provisions in section 6d on the committee's rule-making power
may be contrasted with the following provisions on the Savings and
Loan Commissioner's authority to approve or deny applications to
incorporate under the Savings and Loan Act, article 852a. V.T.C.S.:

             (a) The coam&sioner      may not approve an
          application to incorporate unless he finds that:

             .   .   .   .

             (3) there is a public need for the proposed
          association, and the volume of business in the
          community in which the proposed association will
          conduct its butziness indicates a profitable
          operation is probable; and

             (4) the operation of the proposed association
          will not unduly harm any existing association.

V.T.C.S. art. 852a, §2.07.

             If an applicat:;onto incorporate a new associa-
          tion is before tt.ecommissioner at the same time
          as an application for the establishment of an
          additional office by an existing association, both
          seeking to locate an office in the same community,
          and the principal office of the existing associa-
          tion is located in a different county than the
          community, the cxamissioner may give additional
          weight to the application having the greater
          degree of control vested in or held by residents
          of the community.


                               p. 2507
                                                                             .

Mr. Robb Southerland - Page 4     (JM-564)
                                                                             ,


                                                                         ?


V.T.C.S. art. 852a, 12.12. The purpose of article 852a, sections
2.07(a)(3) and (4) is to prevent overzealous competition in the
industry. Southwestern Savings and Loan Association of Houston v.
Falkner, 331 S.W.2d 917 (Tf:. 1960). Section 6d of article 42.12 of
the Code of Criminal Procedure does not reveal any similar legislative
concern for the educational programs designed to rehabilitate DWI
offenders nor does it include specific provisions directed at
Implementing such an intent. See also Acts 1975, 64th lag., ch. 323,
53.10, at 832 (expired provision on criteria for issuing certificate
of need for health facilj.ties). We conclude that section 6d of
article 42.12 of the Code ojiCriminal Procedure does not authorize the
Texas Commission on Alcohol. and Drug Abuse to issue rules requiring
proof of local need for a new educational program to rehabilitate
persons who have driven wh,t:Leintoxicated. We seed not answer your
other questions.

                                SUMMARY

             The DWI Certification Committee does not have
          authority under article 42.12 of the Code of
          Criminal Procedurs, section 6d. to require proof
          of local need aa a criteria for approving an
          educational program designed to rehabilitate
          persons who have driven while intoxicated.




                                          JIM     MATTOX
                                          Attorney General of Texas

JACK RIGRTOWKR
First Assistant Attorney Geueral

MARY KELLER
Executive Assistant Attorne:?General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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