                THEATTORNEYGENERAL
                                  OF      TEXAS




                                       February   20,   1974



The Honorable A. Ross Rommel                                   Opinion No.   H-   234
        Administrator
Texas Traffic Safety Administration                            Re: Whether a person
P. 0. Box 13449                                                assessed   a probated
Capitol Station                                                sentence for drunken
Austin,  Texas   78711                                         driving may be required
                                                               to pay for the expense
                                                               of treatment

Dear Mr.   Rommel:

       Your request for an opinion concerns whether a person assessed     a
probated sentence for driving while intoxicated may be required to pay the
expense of treatment if he is identified to be a problem drinker-driver.    The
Adult Probation and Parole Law, Art. 42.12,     Texas Code of Criminal    Proce-
dure, and the Misdemeanor      Probation Law, Art. 42.13, Texas Code of Crim-
inal Procedure,   govern the terms and conditions of probation.   Article 42.12
applies to probation in felony cases and Article 42.13 deals with probation in
all misdemeanor    cases.   See Attorney General Opinion M-985 (1971).

       Article 42.12 the Adult Probation and Parole Law, makes                 a distinction
between probation granted by the jury and probation granted by                the court.
Article 42.12 $ 3a states in part,   ‘I. . If probation is granted            by the jury
the court may impose only those conditions which are set forth                in § 6 hereof.   ”

      Article   42.12,   $ 6,   states:

                 “The court having jurisdiction   of the case shall
           determine the terms and conditions of probation and
           may,  at any time, during the period of probation alter
           or modify the conditions: provided,   however,   that the
           clerk of the court shall furnish a copy of such terms
           and conditions to the probationer,   and shall note the




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The Honorable   A.     Ross   Rommel,    page 2      (H-234)




           date of delivery of such copy on the docket.    Terms
           and conditions of probation may include, but shall not
           be limited to, the conditions that the probationer  shall:

                 “a.   Commit no offense against the laws of this
           State or of any other State or of the United States;

                 1%.     Avoid    injurious    or vicious       habits;

                 “c.  Avoid persons           or places       of disreputable
           or harmful character;

                 ‘Id:    Report    to the probation       officer    as directed;

                 ‘le. Permit the probation           officer      to visit him at
           his home or elsewhere:

                 “f.  Work faithfully         at suitable      employment       as
           far as possible;


                 “g.      Remain    within a specified         place;


                 “h.     Pay his fine, if one be assessed,   and all
           court costs    whether a fine be assessed    or not, in one
           or several    sums, and make restitution or reparation
           in any sum     that the court shall determine;  and

                 “i.     Support his dependents.          ”

If probation is granted by the jury, the court may not impose treatment of a
problem drinker-driver    as a condition.    See O’Neal v. State, 421 S. W. Zd 391
(Tex.   Crim. 1967).   However,   if the court grants probation,  it “shall determine
the terms and conditions of probation”     which may include, but are not limited
to, the conditions listed in 5 6. Therefore,    the court which grants probation
in felony cases may require        the probationer        to undergo      and to pay for treatment
as a condition of probation.




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    The Honorable    A.   Ross   Rommel,      page 3        (I-I-234)




           The Misdemeanor       Probation        Law,    Article   42.13,   $ 5(b) states   in part

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

    Section 5(b) further provides for terms which must be included in the probation
    none of which are for submission     and payment of treatment.     However,  this
    section leaves to the court’s discretion   the placing of conditions on probation
    other than those expressly   listed.  Attorney General Opinion M-985 (1971)
    concluded that the court may require a defendant in a misdemeanor        case who
    receives  probation to submit to a treatment center in the interest of rehabilitating
    a defendant and preventing him from committing an additional offense of driving
    while intoxicated.

            To support this holding, the.opinion relied on $ 5 of Article 42.13 which
     expressly  left to the court the discretion to place conditions on probation over
     and above certain express conditions.      Section 5 (b) specifically   directs that
     the period and terms of a probation “shall be designed to prevent recidivism
     and promote rehabilitation.‘!    Using this same reasoning,     it is our opinion that
    a person may be required to pay the expense of treatment as a condition of
     probation in misdemeanor      cases.

          Of course,   the ability to pay the expenses of treatment may not be a
    ground for denying probation,     ani the failure to pay the expenses of treatment
    because of financial inability may not be a ground for revocation     of probation.
    See Tate v. Short, 401 U. S.. 395 (1971); Matthews v. State, 478 S. W.. 2d 943
    (Tex. Grim. 1972); Hall v. State, 452 S. W. 2d 490 (Tex. Crim.       1970).

                                                     SUMMARY

                       1. If the court and note the jury grants probation in
                felony cases,   the problem drinker-driver    may be required
                to pay for the expense of treatment in accordance     with
                Article 42.12,   Texas Code of Criminal Procedure.




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The Honorable   A.   Ross   Ro-el,      page 4       (H-234)




           2. Under Article 42.13,    Texas Code of Criminal
       Procedure,   a person assessed   a probated sentence for
       driving while intoxicated may be required to pay the
       expense of treatment as a condition of probation in mis-
       demeanor cases.

            3. However,    the ability to pay the expenses of
       treatment may not be a ground for denying probation
       and the failure to pay the expense of treatment because
       of financial inability may not be a ground for revocation
       of probation.

                                       Very   truly yours,


                                               &T-Y&
                                       JOHN L. HILL
                                P      Attorney General        of Texas




DAVID M. KENDALL,           Chairman
Opinion Committee




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