                              QBfficeof tip !Zlttornep Qkneral
                                             %tate of Qexas
DAN MORALES                                November 141992
 ATTORSEY
      GENERAI.


    Mr. James A. Lynaugh                             Opinion No. DM-179
    Executive Director
    Texas Department                                 Re: Whether a defendant sentenced
     of Crimmal Justice                              under Penal Code section 12.422 is entitled
    P. 0. Box 13084                                  to credit for the time the defendant is
    Austin Texas 78711                               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)

    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. Q21. 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 mustserve 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
pursuantto 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
