                       December 29, 1989



Mr. Jerry P. Cunningham         Opinion No.   JM-1131
Chairman
Texas Commission on Alcohol    Re: Applicability of article
  and Drug Abuse               5561cc, V.T.C.S.,   to local
1705 Guadalupe                 substance   abuse   treatment
Austin, Texas 78701-1214       facilities or court residen-
                               tial   treatment   facilities
                               (RQ-1828)

Dear Mr. Cunningham:

     You ask several questions with respect to whether
"substance abuse treatment   facilities" and "court residen-
tial treatment   facilities," which are referred   to in new
article 42.13 of the Code of Criminal     Procedure, must be
licensed by the Texas Commission   on Alcohol and Drug Abuse
(the commission).   You are concerned about facilities which
are "operat[ed] directly by local adult probation     depart-
ments or whose   services are contracted by the local adult
probation departments."    YOU ask that we "resolve these
issues with respect to the statutory law as it will exist
January 1, 1990."

     House Bill 2335 of the 71st Legislature      effected   a
reorganization of the criminal justice system      in Texas.
Acts 1989, 71st Leg., ch.        785, at 3471.     That    act
established a Texas Department of Criminal Justice which    is
to include,   inter alia, a "community    justice  assistance
division." Id. 55 1.11, 1.12, at 3473.       The act further
provides that on January 1, 1990, the powers, duties,   etc.,
of the Adult Probation Commission are transferred to the
Department  of Criminal Justice.      Id.  4 1.20, at 3475.
Section 3.10 of the act repeals article 42.121 of the Code
of Criminal   Procedure, which had provided for the Adult
Probation Commission, and section 3.01 of the act adds a new
article 42.13 providing for the community justice assistance
division of the Department   of Criminal Justice.   Generally
speaking, the act creates the community justice assistance
division (the division) as the successor entity to the Adult
Probation Commission.




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     Also, section 4.17 of.the act repeals       section 10 of
article 42.12 of the Code of Criminal Procedure which had
provided for local "probation departments," while         section
3.02 of the act adds a new article 42.131 to the code
providing for the establishment      of j'community supervision
and corrections   departments" (departments).      Such depart-
ments, like their predecessor local probation       departments,
generally correspond to judicial districts.     See  Code Crim.
Proc. art. 42.131,      5 2.    They are estabxhed        by the
district judge or judges handling criminal matters, and are
financially supported by the counties they serve,        judicial
district   funds, and state funds provided         through    the
division.   A department   may  receive state  aid  through   the
division   only if a "community       justice plan" has been
submitted to the division      for the department.     &     art.
42.13,   9 6.   Subsection   (b) of section     6 provides     in
pertinent part with respect to the community justice plan:

           A community  justice plan          required   under
        this section must include:

            (1) a summary of services provided by or
        available to the department  at the time the
        plan is submitted:

            (2) a   description    of    proposed   new
        facilities   or   programs    or    significant
        expansion of existing facilities or programs
        and a summary of how the department    proposes
        to use the facilities or programs,      with a
        particular  emphasis on the plans of the
        department to expand the department's use of:

                 (A)    electronic monitoring programs;

                 (B)    testing for controlled substances;
           and

              (C) communitv corrections            facilities,
           including:

                       (i)   restitution facilities:

                   (ii) cou rt       residential     treatment
            facilities;

                  (iii)        substance   abuse     treatment
           facilities;




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Mr. Jerry Cunningham - Page 3         (JM-1131)




                    (iv)    custody   facilities     and   boot
           camps;

                  (v) facilities    for     offenders
           described by Section 1, Article 4413(49a),
           Revised Statutes;

                             intermediate sanction     facili-
           ties; (vi)

                    (vii)    pre-parole   transfer     facili-
           ties:

                    (viii)    halfway houses: and

                  (ix)      work   facilities.       (Emphasis
           added.)

The terms ftsubstance abuse treatment facilities" and "court
residential treatment facilities," which are included in the
article 42.13    description    of   "community     corrections
facilities," are not statutorily defined.       Section    2 0:
article 42.131   appears to authorize    a  local    "community
supervision and corrections department"    to establish      the
types of "community corrections facilities"       described   in
article 42.13.1

     The.focus of your inquiry is whether substance     abuse
treatment facilities (SATFs) and court residential treatment
facilities (CRTFs), either directly    operated by or the
services of which are contracted by local departments,   must
be licensed by  the Commission  on Alcohol  and Drug Abuse.
Provisions  for the    commission's  licensure  of    certain



     1. Section 3 of article       42.131 provides    that   a
department "may establish  community.corrections   facilities
of the types described     by section 5, Article       42.13."
Section 5 of article 42.13 does not, however,      appear to
describe "types of facilities."   Rather, it authorizes    the
community  justice assistance   division   to take     certain
actions regarding the establishment of community corrections
facilities (e.s., develop standards, .fund contracts,   etc.).
We think it apparent that the intent of section 3 of article
42.131 is, in effect, to authorize a department to establish
the "types of facilities" listed in section 6, subsection
(b), of article 42.13, quoted above.




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Mr. Jerry Cunningham - Page 4     (JM-1131)




treatment facilities are codified in chapter 464, subchapter
A, of the new Health and Safety Code. Acts 1989, 71st Leg.,
ch. 678, 0 1, at 2881.     The provisions of subchapter    A
derive primarily from former article 5561cc, V.T.C.S., which
was repealed by section 13 of the codifying       act.   The
provisions of subchapter A must, however, be read with the
provisions of a separate bill of the 71st Legislature,
Senate Bill 1674, which amended article 5561~~. Acts   1989,
71st Leg., ch. 660, at 2171.2

     Senate Bill 1674 provides that "a person who offers   or
purports to offer chemical dependency treatment must  obtain
a license" from the commission.  Id.; see also &   ch. 678,
at 2882. "Treatment" is defined as “a planned,   structured,
and organized  program designed to initiate and promote     a
person's chemical-free status or to maintain the person free
of illegal drugs."    Id    As you note in your request
however, section 464.003(l) of subchapter A, read with the
Senate Bill 1674 amendments, exempts    from the licensure
requirement "facilities directly operated by the state."

     We do not think that facilities       operated  by local
departments, to the extent that they offer "treatment"      as
defined in subchapter A as amended, would fall within      the
exemption for "facilities directly operated     by the state"
provided for in section 464.003(l).       Facilities  operated
directly by a department     would be staffed by district
personnel employed by district    judges.   Code Crim. Proc.
art. 42.131, 5 2. Section 6 of article 42.131 specifically
provides that such employees are not state employees    except
for certain tort claims and workers compensation purposes.

     We do not think that facilities with which       local
departments contract  for services could be said to be
"facilities directly  operated by the state," within    the
meaning of section 464.003(l), merely by reason of a local
department's having contracted for their services.  If, on
the other hand, the department contracted  with a facility
operated directly by a state agency   for the services   in
question,   the facility would be exempt under      section



      2. Government Code section 311.031(c)     provides,   in
part,  that the repeal of a statute by a code does not  affect
an amendment of the statute by the same legislature       that
enacted the code. The amendment      is preserved  and given
effect as part of the code provision.




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Mr. Jerry Cunningham - Page 5     (JM-1131)




464.003(l).  Also, a facility with which the department
contracted that was exempt from licensure by the commission
under other provisions  would not require licensure.     See.
e.s., id. 5 464.003(4) (exempting from commission   licensure
an "educational program for intoxicated drivers").3

     From a reading of the applicable provisions,       it is
apparent that the legislature   intended section 2(c) of new
article 42.13 'to be the primary way of exempting   department
treatment facilities   from commission   licensure.    Section
2(c) provides:

            (c) After consultation    with the Texas
        Commission on Alcohol and Drug Abuse,      the
        division by rule shall establish     standards
        for the    operation   of    substance   abuse
        facilities and programs by the division    and
        by departments.    A   facility or     program
        operating under the standards is not required
        to be licensed or otherwise approved by any
        other state or local agency.

If a treatment facility, operated either by a department
directly or by lawful contract, operates under     standards
validly established  by the ~community justice   assistance
division pursuant to "consultation" with the Commission   on
Alcohol and Drug Abuse, the facility would be exempt    from
commission licensure under the terms of section 2ccj.4    We



     3. Please note, however, that we do not here address
the legality of a department's contracting for the services
of any particular   facility.   We address here only the
question of licensure with respect to facilities with which
a department has lawfully contracted.  But see V.T.C.S. art.
4413(32), 5 4A, providing    for department  contracts  with
other entities.

     4. Section 13(f) of article 42.12 provides     that a
court, upon the making of certain determinations,      shall
require DWI offenders,   as a condition   of probation,   to
submit to treatment for drug or alcohol dependency

   in a program or facility approved or licensed by the
   Texas Commission on Alcohol and Drug Abuse or in a
   program  or facility that complies with standards
                                       (Footnote Continued)




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Mr. Jerry Cunningham - Page 6     '(JM-1131)




understand from discussions with the legal staff at the
Adult Probation Commission, which will be succeeded by the
community justice assistance division  of the Department of
Criminal Justice  on January   1, 1990, that the division
intends to consult with the Commission on Alcohol and Drug
Abuse and establish standards   for the types of community
corrections facilities about which you are concerned.

     In light of the foregoing discussion, we will briefly
respond to your questions as presented in your request.

     Your first question is:

        Are SATFs and CRTFs chemical       dependence
        'treatment facilities' offering or purporting
        to offer  'treatment'  (as those terms are
        defined in Section l(7) & (12)    of Article
        5561cc, V.T.C.S. as amended)?

     "Substance   abuse treatment   facilities" Andy "court
residential  treatment  facilities"    are not   statutorily
defired terms. The nature of such facilities for purposes
of the commission's licensure provisions will depend on the
standards for their operation, which are to be adopted by


(Footnote Continued)
   established  by the    community  justice    assistance
   division of the Texas Department of Criminal   Justice,
   after consultation    by   the   division    with   the
   commission.

Also, section   11 of article 42.12 provides      for basic
conditions of probation and gives the sentencing court the
authority to require the defendant to participate or remain
under custodial supervision in a "community based"   program
or facility, see Code Crim. Proc. art. 42.12,      § ll(lO),
(12), or to

  participate in substance abuse treatment services in a
  program or facility approved or licensed by the Texas
  Commission on Alcohol  and Drug Abuse,   if the person
  was sentenced  for the offense   involving   controlled
  substances  or   the   court   determines    that   the
  defendant's use of controlled substances was connected
  to the commission of the offense . . . .

Id. § ll(16).




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Mr. Jerry Cunningham - Page 7     (JM-1131)




the community justice assistance    division and/or the local
community  supervision   and corrections    departments,   and
ultimately on whether   a z:;z;Sfacility,   regardless of the
rubric attached  to it,            ,,treatment,,as defined  in
chapter 464, subchapter A, of the Health and Safety Code, as
amended.5

     Your second question is:

        If so, are either or both CRTFs or SATFs made
        generally. exempt from the requirement     of
        licensure pursuant to the terms of Sections
        2(a) and (b) of Article 5561cc, as amended,
        by the terms of H.B. 2335 read in its
        entirety?  See relevant provisions    on the
        following pages of the attached H.B. 2335:
        7-8, 13, 20-21, 24-25, 303-4, 56, 83, 90, 95,
        and 111.

     As discussed above, we do not think that SATFs or CRTFs
operated by a local community    supervision and corrections
department, or the services of which are contracted for by
local departments, would be exempt as "facilities    directly
operated by the state', pursuant to section 464.003(l) of the
Health and Safety Code, except where services were provided
directly by, a state agency. Also,      if the facility    is
operated under sta.ndards validly adopted by the community
justice assistance division under section 2(c) of article
42.13 of the Code of Criminal Procedure, it would be exempt
from licensure by the Commission   on Alcohol and Drug Abuse
under the provisions of that section. There is no "general




     5. Of course, if facilities denominated as substance
abuse treatment  facilities in fact offer substance     abuse
treatment, they will most likely be "treatment    facilities,'
offering l,treatmentl,within the meaning of article   5561cc,
as amended, i.e., subchapter A of chapter 464 of the Health
and Safety Code. The nature of court residential    treatment
facilities is not so apparent from that appellation.        We
note that the term ,,court residential treatment facility', is
used in a rule adopted     in 1988 by the Adult     Probation
Commission to refer to residential    facilities operated   by
local probation departments for felony offenders "exhibiting
drug and alcohol abuse problems or mental health problems.11
37 T.A.C. 0 321.14.




                                p. 5955
                                                                      1



Mr. Jerry Cunningham - Page 8     (JM-1131)




exemption" for substance   abuse treatment     facilities   and
court residential treatment facilities.

     Your third question is:

        If a local adult probation    department  re-
        ceives state or federal  funds under a grant
        or contract with the Texas Adult Probation
        Commission or its successor,   are either  or
        both CRTFs or SATFs operated by or funded by
        the local office exempt:

              a. as facilities    operated by       the
           state, regardless of the wording in     H.B.
           2335, or,

                  under Section 2c    of Article   42.13
           ..,'I,.,. (H.B. 2335).

     We .do not think that the receipt   of state or federal
funds by a local department    (to be known as a "community
supervision and corrections department"    as of January    1,
1990), is in itself determinative of the exempt status of a
facility operated or funded by the department.   The receipt
of such funds does not in itself determine, for example,          '
whether the facility is exempted as one "directly    operated
by the state,"     under Health and Safety Code       section
464.003(l), or as one operated under standards        validly
established by the community    justice assistance  division,
after consultation with the commission, pursuant to section
2(c) of article 42.13 of the Code of Criminal Procedure.

     Your fourth question is:

        Does TCADA have legal authority under Article
        5561~~ to waive its current requirement     of
        licensure   of CRTFs    if the CRTF     offers
        chemical   dependency  treatment  services  as
        defined in the Act (as opposed to limiting
        its services to substance abuse counseling)
        without offering    or purporting   to   offer
        treatment?

     We find no authority for the Commission on Alcohol     and
Drug Abuse to "waive" its licensure requirements.

     Your last question is:




                                p. 5956
,

    Mr. Jerry Cunningham - Page 9      (JM-1131)




            Were the~terms CRTF and SATF intended by the
            legislature to be synonymous    entities for
            purposes of applying Article 5561cc?

         As we stated earlier, the terms 18substance abuse
    treatment  facility"     and Vourt      residential    treatment
    facility" are not statutorily defined. We think that the
    legislature intended that the nature of such facilities, for
    purposes of the commission's licensure provisions, is to be
    determined by the standards     adopted for their operation     by
    the community justice assistance -division and/or the local
    community  supervision     and corrections    departments    that
    operate them.    The   respective  appellations   indicate   that
    CRTFs are to be residential facilities but substance        abuse
    treatment facilities not necessarily so, and that SATFs
    offer substance   abuse treatment while court residential
    treatment facilities might not. Regardless        of the rubric
    attached to it, whether         a  particular   facility   is
    "treatment   facility"   and offers    Vreatmenttl within      th:
    meaning of the commission's licensure provisions, gee Health
    & Safety Code ch. 464, subch. A, as amended, will ultimately
    depend on whether      the    facility in fact offers         such
    "treatment."


                             SUMMARY

               A community corrections facility directly
            operated by   a community   supervision    and
            corrections department under articles    42.13
            and 42.131 of the Code of Criminal Procedure,
            and offering substance abuse 'treatment' as
            defined in Health and Safety Code section
            464.001, as amended, would not be exempt from
            licensure by the Commission   on Alcohol   and
            Drug Abuse as "a facility directly   operated
            by the state" pursuant to section 464.003(l)
            of the Health and Safety Code, as amended.

               Neither would a facility offering       such
            treatment   services        contract    to    a
            department be exempt asofidirectly operated by
            the state" unless the contractee      directly
            operating the facility is a state agency.

               Such a facility would, however, be exempt
            from licensure by the commission      if  it
            operates under standards validly adopted by
            the community justice assistance division of




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Mr.   Jerry Cunningham - Page 10   (JM-1131)




          the Department of Criminal Justice,  pursuant
          to article 42.13, section  2(c), of the Code
          of Criminal Procedure.

                                    Very truly
                                        I .


                                    JIM     MATTOX
                                    Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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