                                  The Attorney General of Texas

JIM MAl-rOX                                          Nmember 13.      1985
Attorney General


Supreme Court Building            Mr. Don R. Stiles                            Opinion No. m-377
P. 0. Box 12549                   Executive Director
*“s!ln. TX. 79711.2549            Texas Adult Probat:Lon Commission            Re: Whether a felony probationer
5121475-2501                      8100 Cameron Road                            who has been placed on deferred
Telex 9101974-1387
Telecopier   512f4750286
                                  Suite 600, Buildiuli B                       adjudication   is    eligible    for
                                  Austin, Texas     78:'53                     placement in a restitution    canter

714 Jackson, Suite 700            Dear Mr. Stiles:
Dallas. TX. 752024508
21417428944
                                        You ask whethm: a defendant who is accused of a felony and who is
                                  placed on deferred adjudication     under section 3d of article  42.12 of
4824 Alberta    Ave.. Suite 180   the Texas Code of Criminal Procedure may be placed in a restitution
El Paso. TX. 799052793            center pursuant tm) section     6c of article    42.12 as a condlcion  of
91515333404                       deferred adjudicat:ton "probation."

1001 Texas. suite 7w
                                       Section   3d provides.    in part:
Houston. TX. 77002-3111
71312255SS8                                      (a)    :brcept as provided by Subsection             (d) of
                                             this sec::lon [exception        for defendant charged with
                                             certain     offenses],     when in its opinion         the best
SW Broadway. Suite 312
Lubbock. TX. 79401-3479
                                             interest      of society     and the defendant will            be
9061747.5238                                 served, the court may, after receiving               a plea of
                                             guilty    (11 plea .of nolo contendere,           hearing the
                                             evidence,      and finding     that it     substantiates      the
4309 N. Tenth, Suite B
McAllen, TX. 78501.1685
                                             defendanc's        guilt,    defer     further     proceedings
5121882.45d7                                 without     entering      an adjudication      of guilt,      and
                                             place the defendant ou probation             for a period as
                                             the court may Drescribe,           not to exceed 10 vears.
 200 Main Plaza. Suite 4M)
                                             The COUIYJa&'impose            ; fine applicable         io the
                                             offense
 San Antonio, TX. 78205-2797
 512/225-4191
                                                          and require      any reasonable        terms and
                                             conditio& L of probation,            including    any of the
                                             conditiozs      enumerated in Sections 6 and 6a of this
 An Equal OppOtiUnitYl                       Article.       However, upon written           motion of the
 Affirmative Action Employer                 defendant       requesting     final     adjudication      filed
                                             within 30 days after entering             such plea and the
                                             deferment of adjudication.          the court shall proceed
                                             to final       adjudication      as in all       other    cases.
                                             (Emphasis added).

                                        Your request turns on whether the legislature   intended section 3d
                                  to   authorize  a court   to place   a defendant    who is    on deferred




                                                                  p. 1722
Mr. Don R. Stiles     - Page 2     (:JM-377)




adiudication    in a restitutim    center.   As a general rule. courts have
wide discretion    in granting; probation    and in imposing the conditions
of probation.     See Macias v . State, 649 S.W.2d 150, 152 (Tex. App. -
Rl Paso 1983, noet.).vertheless,              this discretion      must be viewed
in light of the fact that deferred         adjudication      “probation”  differs
from “probation”    as used el;;ewhere in article     42.12.

       The Texas Court of Crisinal          Appeals in Ex parte Shillings,            641
S.W.2d 538 (Tex. Grim. App. ‘L982), addressed whether subsection                   (a) of
section    3d was intended to ,Lnclude conditions           of probation       set forth
in section     6b of article       42.12.    At that time, section         3d(a) simply
stated that the court may “place the defendant on probation on reason-
able terms and conditions.”            Id. at 539.     In Shillings,      the defendant
challenged     a condition     of ‘urrpsobation      which appeared in two orders
deferring    adjudication     of guilt.     The conditions,      imposed pursuant to
section 6b, required that the defendant be incarcerated                 for 30 days in
one cause and for 18 days in another cause.              The court determined that
deferred adjudication        “protation”    in section 3d(a) is not the equiva-
lent of the traditional          cmcept    of probation     as defined and applied
generally     in article     42.1;..    -Rx parte Shillings,      641 S.W.2d at 539
 (citing   McNew   v. State, 608 S.W.2d 166, 172 (Tex. Grim. App. 1978)).
The court reasoned that sel:tion 2(b) defines probation as the release
of a “convicted”       defendant and expressly        recognizes     that the context
of a particular         section     way require     a different       definition.      In
deferred adjudication        “prota,tion” under section 3d(a), the court makes
no adjudication        of guilt      and imposes no sentence;            therefore,    no
 conviction    occurs,    Id.
                          -      Acc.ordingly,   the  court  stated    that

             Art. 42.12, Sec. 15b(a), *,         allowing imprison-
             ment as a condition     of probation has no applica-
             tion to the conditions     of probation which may be
             imposed following    an order deferring    an adjudice-
             tion of guilt.    Such a condition      may be imposed
             only after ‘proba,tion’ is granted as that tern is
             defined in Art. ii:!. 12, Sec. 2(b), supra.

 641 S.W.2d at 540.    A similar   analysis must be              applied    to   section
 3d(a) of article 42.12 in 8:onjunction with section             6~.

       The language of secticmn 6c itself supports the view that                  it   was
 not intended to apply to defendants on deferred      adjudication.                    The
 section provides,  in part:

                 (a)   If a judSa sentences a defendant to a term
             of    imprisonment    in   the   Texas   Department   of
             Corrections     and the defendant      is eligible   for
             probation,    the judge may suspend imposition of the
             sentence of imprisonment and require          as a con-
             dition of probation,     in addition to the conditions




                                         p. 1723
Mr. Don R. Stiles   - Page 3    ,(.JM-377)




           imposed under Section 6 of this article.     that the
           defendant sewe B'R alternate probationary     sentence
           of not less than s,ix months or more than 12 months
           in a restitution  clcnter if [certain conditions    are
           met].   (Emphasis asided).

(Text of section 6c as added by Acts 1983, 68th Leg., ch. 237, 52, st
1057.)     The term “senteaf:e”        cannot logically  Include deferred
adjudication   "probationers"     because a defendant cannot be sentenced
until he is adjudicated     guilty.

      Moreover, the present wording of section     3d(a) of article  42.12
compels the result reached in Shillings      even more conclusively   than
the version     at issue  in Shillin    8   The language considered      in
Shillings  authorized the court+ to 'place  the defendant on probation on
reasonable   terms and conditions."    641 S.W.2d at 539.   Section 3d(a)
was amended in 1981 to provide that

            [t]he court may impose a fine applicable       to the
            offense and requ!.re any reasonable    terms and con-
            ditions    of probation, including  any of the condi-
            tions    enumerated in Sections    6 and 6a of this
            Article.

Acts   1981, 67th Leg.,   ch. 544, PL, at 2263.

       You suggest that the r.se of the term "including"        implies that the
court is not limited to the conditions         set forth in sections     6 and 6a
but may also impose the conditions        of 6c.    Clearly,   the court is not
limited    to the conditions    expressly   set forth in sections       6 and 6a.
The language of section         6 itself    emphasizes     that the terms and
conditions     of probation   z.re not limited     to enumerated conditions.
Given that the legislature         included   an express     reference    to both
sections    6 and 6a. however: it would also have included a reference to
section    6c if section    6c were intended to apply.          See, e.g.,    Acts
1981, 67th Leg.,      ch. 544, 92, at 2263 (amending section             3d(a) of
article    42.13 to include section 6~).        Consequently,    we believe   that
the court is limited to conditions        of the general nature and severity
of those specified    in sect:.ons 6 and 6a.

       We are aware that the court in Gardner v. State, 632 S.W.2d 851,
 854-55 (Tex. App. - Roust,on 114th Dist.1         1982, no pet.)   held that
 section   6b was intended to become part of "section        6" as used in an
 early version    of section    3a (dealing with regular probation)      which
 stated that "the court may impose only those conditions        which are set
 forth in Section 6 hereof-"         At the time this version of section    3a
 was originally      enacted,   section   6 was the only provision       which
 described   probation    condkions.     Thus, the legislative    intent  upon
 which the court relied in _-- Gardner is inapplicable   to the case at hand.




                                   p. 1724
Mr. Don R. Stiles   - Page 4     (JM-377)




Moreover, section 3a covered probation conditions      applicable    to a wide
variety    of   convicted    defendants,  but   not  probation      conditions
applicable    to a defendant cn, deferred adjudication    under section 3d.
The legislature    included an express reference to sections      6 and 6a in
section 3d; ve believe     that :Lt would also have included section 6c if
it intended section 6c to aIply to deferred adjudication        "probation."

                                  SUMMARY

               A defendant    who is placed on deferred     adjudi-
           cation pursuant     tcl subsection (a) of section 3d of
           article    42.12    oi' the Texas Code of Criminal
           Procedure    may    nat be placed     in a restitution
           center pursuant      to section 6c of article   42.12 as
           a condition of     deferred adjudication  "probation."


                                              Very truly   you


                                             J /t-iaG
                                             -JIM
                                                   A
                                                       MATTOX
                                               Attorney General of Texas

MARYKELLER
Executive Assistant     Attorney7 General

ROBERTGRAY
Special Assistant     Attorney   General

RICR GILPIN
Chairman, Opinion Comaittee

Prepared by Jennifer Riggs
Assistant Attorney General

APPROW:
OPINIONCOMMITTEE

 Rick Gilpin, Chairman
 Susan Garrison
 Jim Hoellinger
 Jennifer Riggs
 Nancy Sutton
 Sarah Woelk




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