Untitled Texas Attorney General Opinion
GA-0986
| Tex. Att'y Gen. | Jul 2, 2013Background
- Request from David Slayton (Office of Court Administration) asking whether a prosecutor may require a defendant to plead guilty as a condition of participation in a pretrial intervention (pretrial diversion) program under Texas Gov't Code § 76.011.
- Pretrial intervention described as an agreement: defendant completes conditions, court later dismisses charges if conditions met; otherwise case proceeds to trial (see Fisher v. State description).
- § 76.011 authorizes community supervision and corrections departments to operate pretrial intervention programs and permits "reasonable conditions" (expressly citing drug testing) but provides no further detail on permissible conditions or program purpose.
- Attorney General reviewed statutory text, related amendments (expunction statute recognizing pretrial intervention completion), and existing case law but found no controlling authority directly addressing whether a guilty plea may be required.
- Some appellate decisions treat pretrial diversion agreements as contract-like and akin to plea agreements, suggesting broad bargaining space for parties; plea-agreement principles (State v. Moore; Ex parte Williams) permit varied stipulations if not manifestly unjust.
- Because of the legislative silence and lack of controlling legal authority, the Attorney General declined to definitively answer the question and recommended legislative clarification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May a prosecutor require a guilty plea as a condition of pretrial intervention under § 76.011? | Slayton: Requiring a guilty plea conflicts with the program's purpose to let defendants avoid a finding of guilt and obtain dismissal. | Prosecutors: No statutory prohibition; pretrial diversion agreements are akin to plea bargains and parties can negotiate terms. | No definitive legal answer — insufficient controlling authority; AG declines to advise definitively and notes Legislature should clarify. |
Key Cases Cited
- Fisher v. State, 832 S.W.2d 641 (Tex. App.-Corpus Christi 1992) (describing pretrial intervention as dismissal-after-compliance framework)
- In re D.R.R., 322 S.W.3d 771 (Tex. App.-El Paso 2010) (treating pretrial diversion agreements as akin to negotiated plea agreements)
- Ex parte Williams, 637 S.W.2d 943 (Tex. Crim. App. 1982) (plea agreements equated to contracts; court generally will not interfere absent manifest injustice)
- State v. Moore, 240 S.W.3d 248 (Tex. Crim. App. 2007) (plea-agreement terms left to parties; court intervenes only if manifestly unjust)
- PPG Indus., Inc. v. IMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79 (Tex. 2004) (discussing inferences from legislative silence)
- R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619 (Tex. 2011) (statutory construction principle: give effect to Legislature's intent as expressed in plain language)