Case Information
*1 The Attorney General of Texas Nmember 13. 1985 JIM MAl-rOX
Attorney General Opinion No. m-377
Supreme Court Building Executive Director P. 0. Box 12549 Texas Adult Probat:Lon Commission Re: Whether a felony probationer *“s!ln. TX. 79711.2549 8100 Cameron Road who has been placed on deferred Telex 9101974-1387 Suite 600, Buildiuli B adjudication is eligible Telecopier 512f4750286 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 the Texas Code of Criminal Procedure may be placed 4824 Alberta Ave.. Suite 180 center pursuant tm) section 6c of article 42.12 as a condlcion El Paso. TX. 799052793 deferred adjudicat:ton Section 3d provides. 1001 Texas. suite 7w Houston. TX. 77002-3111 :brcept as provided by Subsection (d) of 71312255SS8 this sec::lon [exception for defendant charged with certain offenses], when in its opinion the best SW Broadway. Suite 312 interest of society and the defendant will be Lubbock. TX. 79401-3479 served, the court may, after receiving a plea of guilty (11 plea .of nolo contendere, hearing the evidence, and finding substantiates the it 4309 N. Tenth, Suite B defendanc's guilt, defer further proceedings McAllen, TX. 78501.1685 without entering an adjudication of guilt, 5121882.45d7 place the defendant ou probation for a period as
the court may Drescribe, not to exceed 10 vears. 200 Main Plaza. Suite 4M) The COUIYJ a&'impose ; fine applicable io San Antonio, TX. 78205-2797 offense and require any reasonable 512/225-4191 conditio& including any of L conditiozs enumerated in Sections 6 and 6a of this However, upon written motion of An Equal OppOtiUnitYl defendant Affirmative Action Employer requesting final adjudication filed
within 30 days after entering such plea and the deferment of adjudication. the court shall proceed final 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 (:JM-377) center. As a general rule. courts have adiudication in a restitutim 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, S.W.2d 538 (Tex. Grim. App. ‘L982), addressed whether subsection (a) of section 3d was intended to ,Lnclude conditions 42.12. At that time, section 3d(a) simply
in section 6b of article 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 -Rx parte Shillings, 641 S.W.2d at 539 generally in article 42.1;.. (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 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.
section provides, If a judSa sentences a defendant to a term imprisonment the Texas Department of
Corrections and the defendant is eligible probation, the judge may suspend imposition of the sentence of imprisonment and require as a con- dition of probation, in addition ,(.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 clcnter if [certain conditions are met]. (Emphasis asided).
(Text of section 6c as added by Acts 1983, 68th Leg., ch. 237, 52, st Include deferred 1057.) The term “senteaf:e” cannot logically "probationers" because a defendant cannot be sentenced until he is adjudicated guilty.
Moreover, the present wording of section 3d(a) of article compels the result reached in Shillings even more conclusively than the version at issue in Shillin 8 The language considered + 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 including any of the condi- tions enumerated in Sections 6 and 6a of this 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 in sections 6 and 6a but may also impose the conditions of 6c. Clearly, the court is not limited expressly set forth in sections 6 and 6a. language of section itself emphasizes that z.re not limited to enumerated conditions. Given that legislature included an express reference to both sections 6 and 6a. however: it would also have included a reference 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 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, (Tex. App. - Roust,on 114th Dist.1 1982, no pet.) held section 6b was intended to become part of "section 6" as used in an early version of section 3a (dealing with regular probation) which 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 condkions. Thus, legislative intent upon which the court relied in Gardner is inapplicable to the case at hand. _-- (JM-377)
Moreover, section 3a covered conditions applicable to a wide variety convicted defendants, but not probation
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 :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 oi' the Texas Code of Criminal Procedure may nat be placed
center pursuant to section 6c of article 42.12 as a condition of deferred adjudication Very truly you J /t-iaG
A -JIM MATTOX Attorney General of Texas MARY KELLER
Executive Assistant Attorney7 General
ROBERT GRAY
Special Assistant Attorney General
RICR GILPIN
Chairman, Opinion Comaittee
Prepared by Jennifer Riggs
Assistant Attorney General
APPROW:
OPINION COMMITTEE
Rick Gilpin, Chairman
Susan Garrison
Jim Hoellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
'p. 1725