Hon. A. Ross Rommel                                Opinion   No. M-985
Traffic     Safety Administrator
Texas Department of Community                      Re:   Applicability       of the
    Affairs                                              Adult Probation       and
P. 0. Box 13166, Capitol                                 Parole Law to misde-
    Stat ion                                             meanors and related
Austin,     Texas  78711                                 questions     regarding
                                                         the conditions       that
                                                         may be imposed upon
                                                         the granting      of pro-
Dear Mr. Rommel:                                         bation.

              You have asked the      opinion     of this office     in con-
nection     with the applicability       of the Adult Probation        and
Parole     Law (Article   42.12,   Texas   Code of Criminal       Procedure,
1965)     to misdemeanors,     and in particular      to the offense     of
driving     while intoxicated,     first    offense,    as defined    by
Article     802, Texas Penal Code.
               Your    questions   are   as   follows:

               1.     “Does the Adult Probation        Law (Art.
                      42.12)    strictly   apply to felony   cases
                      or can it be construed       to apply to
                      both felonies      and misdemeanors?     The
                      Honorable W. A. Morrison        in his inter-
                      pretative      commentary following   the
                      Adult Probation      Law states   that the
                      new Code eliminated       the Suspended Sen-
                      tence Law and expanded the Adult Pro-
                      bation    Law to make it cover all crimes,
                      both felonies      and misdemeanors.”

               2.     “If the Adult Probation        Law can apply
                      to misdemeanors      such as first     offense
                      DWI, would it be within        the scope of
                      authority    of the judge to direct        the
                      probation    officer   to fully    investigate
                      (including    a physical   and mental exam-
                      ination    of the defendant,     whenever

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Hon.   A. Ross    Rommel,   page 2.      (M-985)




                   practicable)     and report      to the Court
                   in writing     the circumstances        of the
                   offense    criminal    record,    social   history,
                   and present     condition      of the defendant?
                   In effect,     could Sec. 4 of the Adult
                   Probation     Law (Art.    42.12)    apply to the
                   pre-sentence      investigation      for a first
                   offense    DWI misdemeanor?”

             3.    “Does the judge under the Misdemeanor
                   Probation       Law (Art.    42.13)    have the
                   authority       to refer    a probationer     to a
                   treatment       center   as a condition      of pro-
                   bation     if,   based upon the sufficiency
                   of the evidence         presented     to the judge
                   prior to sentencing,           it appears that
                   such probationer         is identified      as a
                   problem drinker.          Does the judge have
                   the authority         to send a probationer
                   (classified        as a social     drinker)    to a
                   driver’s       education    class   as a condition
                   of probation        under the Misdemeanor Pro-
                   bat ion Law?”

             4.    “Is there any discretionary          or implied
                   authority    under the Misdemeanor Proba-
                   tion Law (Sec.      5, Art.   42.13)     which
                   would allow the judge to put as a con-
                   dition    of probation    that the probationer
                   undertake    treatment    at a treatment        center
                   (problem drinker),      or the attendance         at
                   driver’s    education   class    (social     drinker),
                   thereby promoting      rehabilitation        of the
                   probationer?”




              In answering    you first    question,    whether Article
42.12 applies       to misdemeanors as well as felonies,           it should
be noticed     that there is no express        language in the statute
which would limit        its terms to felonies       or exclude   misde-
meanors    from the operation      of the probation      provisions      of the
statute.      There can be no applicability          of the parole      sections
of the statute        to misdemeanors   since    parole applies      only to
prisoners     serving    in the penitentiary      and there can be no
penitentiary      time assessed    in misdemeanor cases.         (Article      47,
Texas Penal Code).
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        Hon. A. Ross     Rommel,     page 3.   (M-985)



                    However, Article    42.13,  the Misdemeanor Probation
        Law, was passed by the Legislature       at the same time as Arti-
        cle 42.12 and the two statutes       must be read in harmony.     The
        first  words of Article    42.13,   as contained  in Section  1,are:

                    “All probation in misdemeanor cases shall
                    be granted and administered  under this
                    Article.”

                   Accordingly,  Article        42.13 governs   probation in all
        misdemeanor cases and Article          42.12 does not   have any appli-
        cation  to misdemeanors.




                    Your   second question    asks whether the court,       in de-
        ciding   whether to grant probation        in a misdemeanor case,     is
        authorized    to order an investigation       made into the circumstances
        of the offense     charged,   the criminal    and social  record    of the
        defendant,   and his present     mental and physical     condition,     all
        as provided     for in Section   4 of Article    42.12.

                   Since Article      42.12 does not apply to misdemeanor
        cases,  no investigation      can be made under the authority      of
        Section  4 thereof.      However, an equivalent     investigation    can
        be ordered  by the court       in considering  probation    in a misde-
        meanor conviction.       Section   3(d) of Article   42.13 provides:

                    “When a defendant     has applied    for probation,
                    the court during the trial       of his case must
                    receive   competent   evidence   concerning   the
                    defendant’s   entitlement     to probation.”

        Section   5(b)   provides:

                    “The period and terms of probation        shall be
                    designed     to prevent recidivism    and promote
                    rehabilitation      of the probat loner. ”

        Together,    the foregoing    provisions    suggest that a court must
        have sufficient     information     so as to be able to make the ini-
        tial  decision    of probation     and then develop  suitable  conditions
        of probation    to “prevent     recidivism   and promote rehabilitation.”

                   Accordingly,  an investigation    of the type provided
        for in Article   42.12, Section   4, may be ordered by the Court              in
        misdemeanor cases governed by Article     42.13.
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Hon. A. Ross    Rommel,   page 4.      (M-985)




            Your third   and fourth    questions      are directed     to
the authority    of a court   In a misdemeanor probation           case to
require   the defendant,    as a condition     of parole,     to submit
to a “treatment    center”   (which treats     drinking    problems)
and/or  to attend a driver’s      education    class.

           Section 5 of Article        42.13 deals with the condi-
tions and terms of misdemeanor         probation   and expressly   leaves
to the court the discretion     to     place conditions    on probat ion
over and above certain    express      conditions.

            As noted above,   Section    5(b) directs  that the
period and terms of a probation       “shall  be designed  to pre-
vent recidivism    and promote rehabilitation.”

             Therefore,   a court may require        a defendant   in a
misdemeanor case who receives          probation    to submit to a treat-
ment center,     or take a driver’s      education    course,   or both,
in the interest      or rehabilitating      a defendant    and preventing
him from committing      an additional      offense   of driving   while
intoxicated.


                                  SUMMARY
                                  -------
                   Article     42.12,   Texas Code of Criminal
            Procedure      (the Adult Probation       and Parole
            Law) is not applicable          to misdemeanor cases;
            rather , probation        in misdemeanor cases is
            governed     by Article     42.13.    An investigation
            of the type authorized          by Section    4 of Arti-
            cle 42.12 may be ordered           by the Court in a
            misdemeanor case.          Enrollment    in a treat-
            ment center       and/or a driver’s      education   class
            may be made a condition           of probation    by the
            court.

                                              Ve   truly   yours,




Prepared    by Lonny F. Zwiener
Assistant    Attorney General
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Hon. A. Ross      Rommel,   page 5.     (M-985)



APPROVED:
OPINION COMMITTEE

Kerns Taylor,      Chairman
W. E. Allen,      Co-Chairman

John Banks
Gordon Cass
Howard Fender
Sam Jones

SAM MCDANIEL
Staff Legal Assistant

NOLA WHITE
First Assistant

ALFRED WALKER
Executive Assistant




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