Untitled Texas Attorney General Opinion ( 1974 )

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
pa 1090
I
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.
p. 1091
a .
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.
p. 1092
I
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
p. 1093