Untitled Texas Attorney General Opinion ( 1985 )

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
'p. 1725