Judges: JIM MATTOX, Attorney General of Texas
Filed Date: 11/13/1985
Status: Precedential
Modified Date: 7/6/2016
Mr. Don R. Stiles Executive Director Texas Adult Probation Commission 8100 Cameron Road Suite 600, Building B Austin, Texas 78753
Re: Whether a felony probationer who has been placed on deferred adjudication is eligible for placement in a restitution center
Dear Mr. Stiles:
You ask whether a defendant who is accused of a felony and who is placed on deferred adjudication under section 3d of article
Section 3d provides, in part:
(a) Except as provided by Subsection (d) of this section [exception for defendant charged with certain offenses], when in its opinion the best interest of society and the defendant will be served, the court may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on probation for a period as the court may prescribe, not to exceed 10 years. The court may impose a fine applicable to the offense and require any reasonable terms and conditions of probation, including any of the conditions enumerated in Sections 6 and 6a of this Article. However, upon written motion of the 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 adjudication in a restitution center. As a general rule, courts have wide discretion in granting probation and in imposing the conditions of probation. See Macias v. State,
The Texas Court of Criminal Appeals in Ex parte Shillings,
Art. 42.12, Sec. 6b(a), supra, allowing imprisonment as a condition of probation has no application to the conditions of probation which may be imposed following an order deferring an adjudication of guilt. Such a condition may be imposed only after `probation' is granted as that term is defined in Art. 42.12, Sec. 2(b), supra.
The language of section 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 judge 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 condition of probation, in addition to the conditions imposed under Section 6 of this article, that the defendant serve an alternate probationary sentence of not less than six months or more than 12 months in a restitution center if [certain conditions are met]. (Emphasis added).
(Text of section 6c as added by Acts 1983, 68th Leg., ch. 237, § 2, at 1057.) The term "sentence" 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 Shillings. The language considered in Shillings authorized the court to "place the defendant on probation on reasonable terms and conditions."
[t]he court may impose a fine applicable to the offense and require any reasonable terms and conditions of probation, including any of the conditions enumerated in Sections 6 and 6a of this Article.
Acts 1981, 67th Leg., ch. 544, § 1, at 2263.
You suggest that the use 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 are 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, § 2, at 2263 (amending section 3d(a) of article 42.13 to include section 6c). Consequently, we believe that the court is limited to conditions of the general nature and severity of those specified in sections 6 and 6a.
We are aware that the court in Gardner v. State,
Very truly yours,
Jim Mattox Attorney General of Texas
Mary Keller Executive Assistant Attorney General
Robert Gray Special Assistant Attorney General
Rick Gilpin Chairman, Opinion Committee
Prepared by Jennifer Riggs Assistant Attorney General