Does time in a court-ordered drug treatment facility count toward your prison sentence if your probation is later revoked in Texas?

Plain-English summary

In 1991 the Texas Legislature created a sentencing option for some felony defendants whose crimes were tied to drug or alcohol abuse. Under Penal Code section 12.422, a court could order an eligible defendant to serve two separate stretches: first, between six months and a year of confinement and treatment in a substance abuse treatment facility, and then a two-to-ten-year term in the regular prison system (the institutional division of the Texas Department of Criminal Justice). The Executive Director of the Department asked the Attorney General a practical follow-up: if a court suspends the prison portion, puts the defendant on probation, and then later revokes that probation, does the defendant get credit toward the prison term for the months already spent in the treatment facility?

The Attorney General said no. Section 12.422 itself did not answer the question, and the office found no legislative history on the point, so the opinion worked from the general probation and revocation rules in article 42.12 of the Code of Criminal Procedure. The revocation provision (section 26) requires a court to credit only time the defendant spent in "actual confinement" ordered under specific sections (12 or 13), and a treatment-facility stay was not ordered under those sections. Looking at how the Code treats other forms of alternative incarceration, the opinion noted that the legislature expressly directed courts not to credit time spent in a "community corrections facility" against the sentence when probation is revoked. Substance abuse treatment facilities are one of the kinds of community corrections facilities the Code lists.

The opinion reasoned that the nature of a probationer's time in a substance abuse facility is the same whether the facility runs under the Code of Criminal Procedure or under the companion Government Code provision (section 493.009) that set up the section 12.422 treatment program. In both, the person is in a program meant to break an addiction to alcohol or other drugs. So the office concluded that a judge must treat section 12.422(a)(1) treatment time the same way the law treats community-corrections time: not credited toward the prison sentence if the court revokes the defendant's probation.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Penal Code section 12.422 and the cited Code of Criminal Procedure article 42.12/42.13 probation provisions were heavily amended and recodified after 1992 (Texas community supervision law was substantially rewritten), so the section numbers and procedures here no longer match current law; confirm the current provisions before relying on anything described here.

Background and statutory framework

The legislature added section 12.422 to the Penal Code in 1991 (Acts 1991, 72d Leg., 2d C.S., ch. 10, § 19.01, at 218), effective October 1, 1992. Section 12.422(a) authorized, but did not require, a court to sentence an eligible defendant convicted of certain first-, second-, or third-degree felonies to two separate and distinct periods of incarceration: under subsection (a)(1), an indeterminate term of not more than one year and not less than six months of confinement and treatment in a substance abuse treatment facility operated by the community justice assistance division of the Texas Department of Criminal Justice (with a 30-day minimum for a defendant whose underlying offense was under Article 6701l-1, Revised Statutes); and under subsection (a)(2), a term of two to ten years in the institutional division, to begin not later than the 30th day after the defendant is released from the treatment facility. Subsection (a)(3) allowed a fine. The same 1991 act added section 493.009 to the Government Code, which required the Department, through its community justice assistance division and pardons and paroles division and in cooperation with the Texas Commission on Alcohol and Drug Abuse, to develop a substance abuse treatment program for all section 12.422 defendants, with "highly structured work, education, and treatment schedules, a clearly delineated authority structure, and well-defined goals and guidelines," and directed the Department to provide 12,000 beds for the program.

The Executive Director's question assumed a defendant who had completed the subsection (a)(1) treatment-facility period, whose subsection (a)(2) prison term the court had suspended in favor of probation, and whose probation the court then revoked. The opinion noted that section 12.422 did not on its face answer whether the treatment time should be credited, and that no legislative history resolved it, so the analysis turned to article 42.12 of the Code of Criminal Procedure, which governs suspension of sentence, probation, and revocation.

Article 42.12, section 26 governs revocation of probation. After a hearing, a court may dispose of the case as if the defendant had never been on probation, or reduce the term of imprisonment to a specified extent. Section 26(b) prohibits the court from counting time the defendant spent on probation toward the sentence, but requires it to count time the defendant spent in actual confinement as a condition of probation under section 12 or 13 of article 42.12. The opinion observed that even assuming the treatment-facility time was "actual confinement," the court did not order it under section 12 or 13, so section 26(b) did not authorize credit for it. The opinion also noted (in a footnote) that article 42.03, section 2(a), which gives credit for pretrial jail time, did not apply because the treatment-facility period is part of the defendant's sentence rather than pretrial jail time.

The opinion then examined the article 42.12 provisions on alternative incarceration. Sections 18 (restitution centers), 19 (community corrections facilities), and 21 (electronic monitoring) each address whether time in those settings counts toward a sentence on revocation; none applied specifically to a section 12.422 sentence. Section 18(c) bars crediting restitution-center time on revocation, and section 19(d) expressly provides that a court must not apply time spent in a community corrections facility toward completion of the defendant's sentence. The Code did not define "community corrections facility," but article 42.13, section 6(b) lists the types of alternative incarceration facilities a community supervision and corrections department may operate as community corrections facilities, including substance abuse treatment facilities, custody facilities, boot camps, work facilities, and halfway houses. (The opinion cited Trigg v. State, 801 S.W.2d 958, 959 (Tex. App.—Dallas 1990, no writ), and Attorney General Opinion JM-1131 (1989) for the point that the article 42.12, section 19(a) cross-reference should be read to refer to section 6(b), not section 5, of article 42.13.)

The opinion acknowledged a structural difference between the two kinds of facility: a community corrections "substance abuse treatment facility" under article 42.13 is established and administered by a local entity (the community supervision and corrections department, with the county providing the physical facilities), while a substance abuse treatment facility under Government Code section 493.009 is developed and administered by the Department, which must provide the facilities. Even so, the opinion concluded that the nature of the time a probationer spends in a substance abuse facility is the same in either setting, because in both the person participates in programs aimed at breaking an addiction to alcohol or other drugs. Accordingly, when a court revokes a defendant's probation, it should treat section 12.422(a)(1) treatment time the same way it treats time in a community corrections center operated as a substance abuse treatment facility, and must not apply that time toward completion of the defendant's sentence.

Common questions

If I finish court-ordered drug treatment and then my probation is revoked, do I get credit for that time?
The opinion concluded you do not. It held that a judge must not apply time spent in a substance abuse treatment facility under Penal Code section 12.422(a)(1) toward completion of the prison sentence when the court revokes probation.

Why doesn't the treatment time count when jail time usually does?
The opinion reasoned that the revocation statute (article 42.12, section 26(b)) credits only "actual confinement" ordered under specific sections, which did not include the treatment facility. It then analogized the treatment stay to time in a "community corrections facility," which the Code (section 19(d)) expressly bars from being credited on revocation.

What is the difference between the two periods in a section 12.422 sentence?
Under the 1992 statute, the first period was six months to a year of confinement and treatment in a substance abuse treatment facility; the second was a two-to-ten-year term in the regular prison system (the institutional division), set to begin within 30 days after release from the treatment facility.

Did it matter who ran the treatment facility?
The opinion treated that as not controlling. It recognized that a community corrections facility is run locally while a section 493.009 facility is run by the Department, but concluded the nature of the probationer's time, participation in addiction treatment programs, was the same either way, so the no-credit rule applied.

Citations

• Penal Code § 12.422(a), (a)(1), (a)(2), (a)(3), (b), (d) (Acts 1991, 72d Leg., 2d C.S., ch. 10, § 19.01)
• Government Code § 493.009(a), (d), (g) (Acts 1991, 72d Leg., 2d C.S., ch. 10, § 19.03)
• Code of Criminal Procedure art. 42.12, §§ 3, 11(a), 12, 13, 18, 19, 21, 24, 26
• Code of Criminal Procedure art. 42.13, §§ 5, 6(b), 8(a)
• Code of Criminal Procedure art. 42.131, §§ 2(a), 3(a)
• Code of Criminal Procedure art. 42.03, § 2(a)
• Article 6701l-1, Revised Statutes
• Trigg v. State, 801 S.W.2d 958 (Tex. App.—Dallas 1990, no writ)
• Attorney General Opinion JM-1131 (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0179
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0179.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; garbled case names were verified against the official reporters, and dense footnotes were cleaned of obvious OCR artifacts. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

November 14, 1992

Mr. James A. Lynaugh
Executive Director
Texas Department of Criminal Justice
P. O. Box 13084
Austin, Texas 78711

Opinion No. DM-179

Re: Whether a defendant sentenced under Penal Code section 12.422 is entitled to credit for the time the defendant is confined in a substance abuse treatment facility toward the satisfaction of the term of confinement in the institutional division of the Texas Department of Criminal Justice (RQ-406)

Dear Mr. Lynaugh:

On behalf of the Texas Department of Criminal Justice (the "TDCJ"), you ask whether a defendant is entitled to credit toward satisfaction of the term of confinement in the institutional division of the TDCJ for that amount of time the defendant, pursuant to a court order in accordance with section 12.422 of the Penal Code, spent in a substance abuse treatment facility. You suggest that a defendant is not entitled to credit for that amount of time. We agree.

The legislature added section 12.422 to the Penal Code in 1991. See Acts 1991, 72d Leg., 2d C.S., ch. 10, § 19.01, at 218. The section became effective October 1, 1992. Section 12.422(a), which pertains to your question, reads as follows:

A court may punish an eligible defendant[1] convicted of an offense listed in Subsection (d)[2] of this section that is otherwise punishable as a felony of the first, second, or third degree by imposing on the defendant:

(1) a term of confinement and treatment in a substance abuse treatment facility operated by the community justice assistance division of the Texas Department of Criminal Justice for an indeterminate term of not more than one year or less than six months, except that the minimum term for a defendant whose underlying offense is an offense under Article 6701l-1, Revised Statutes, is 30 days;

(2) a term of not less than two years or more than 10 years in the institutional division of the Texas Department of Criminal Justice, to begin not later than the 30th day after the day on which the defendant is released from a substance abuse [treatment] facility; and

(3) a fine not to exceed $10,000. [Footnotes added.]

[1] Pursuant to subsection (b), a defendant is eligible for punishment in accordance with section 12.422 of the Penal Code if: (1) a presentence investigation conducted under Section 9, Article 42.12, Code of Criminal Procedure, or any other indication suggests that drug or alcohol abuse significantly contributed to the commission of the offense; . . .

Thus, subsection (a) authorizes, but does not require, a court to sentence an eligible defendant to two separate and distinct periods of incarceration: first, a period of confinement and treatment in a substance abuse treatment facility that the community justice assistance division of the TDCJ operates (subsection (a)(1)); and second, a period of confinement in the institutional division of the TDCJ (subsection (a)(2)).

The same act that added section 12.422 to the Penal Code also added section 493.009 to the Government Code. See Acts 1991, 72d Leg., 2d C.S., ch. 10, § 19.03, at 219-21. Section 493.009(a) of the Government Code requires the TDCJ, through its community justice assistance division and its pardons and paroles division, and in cooperation with the Texas Commission on Alcohol and Drug Abuse, to develop a substance abuse treatment program for all defendants sentenced pursuant to section 12.422 of the Penal Code. The substance abuse treatment program is to contain "highly structured work, education, and treatment schedules, a clearly delineated authority structure, and well-defined goals and guidelines." Gov't Code § 493.009(d). In addition, section 493.009(g) directs the TDCJ to provide 12,000 beds for the purpose of operating the substance abuse treatment program.[3] Id. § 493.009(g).

Your question is based on a hypothetical situation in which a defendant has been released from a substance abuse treatment facility, and thus has completed the period of confinement and treatment pursuant to subsection (a)(1). In the scenario you describe, the court has suspended the imposition of the term of confinement that the defendant is to spend in the institutional division of the TDCJ pursuant to subsection (a)(2).[4] Subsequently, the court revokes the defendant's probation. Hence, you inquire whether, in determining the length of time the defendant now must spend confined in the institutional division of the TDCJ, the defendant is credited with the amount of time he or she spent in confinement and treatment in the substance abuse treatment facility.

On its face, section 12.422 of the Penal Code does not provide an answer to your question. Moreover, we were unable to find any legislative history indicating whether the legislature intended a court, upon revocation of probation and reimposition of the sentence, to credit a defendant for the time the defendant was confined and treated in a substance abuse treatment facility pursuant to section 12.422(a)(1) of the Penal Code. We look, therefore, to the statutory provisions governing the suspension of sentences, probation, and the revocation of probation, which the legislature has articulated in article 42.12 of the Code of Criminal Procedure.[5]

Article 42.12, section 26 of the Code of Criminal Procedure governs the revocation of probation. Subsection (a) authorizes a court that is revoking a defendant's probation after a hearing held pursuant to article 42.12, section 24, either to dispose of the case as if the defendant never had been on probation, or to reduce, to a specified extent, the term of imprisonment to which the court originally sentenced the defendant. Subsection (b) prohibits the court from considering, as part of the time that the defendant will be sentenced to serve, any part of the time that the defendant was on probation. However, the court must consider any time the defendant spent in actual confinement as a condition of probation under section 12 or 13 of article 42.12. Code Crim. Proc. art. 42.12, § 26(b); see id. §§ 12 (permitting court with jurisdiction of misdemeanor case to require as condition of probation that defendant submit to period of detention), 13(a), (b) (requiring court to require as condition of probation that defendant in DWI case submit to period of detention). Assuming for the moment that the period of time a defendant spends in a substance abuse treatment facility is a period in "actual confinement," the court did not order it pursuant to section 12 or 13 of article 42.12. Thus, article 42.12, section 26(b) of the Code of Criminal Procedure does not permit a court to credit the defendant for the period of time the defendant spent in a substance abuse treatment facility.[6]

Other sections of article 42.12 authorize a court to sentence a defendant to particular types of alternative incarceration and expressly direct the court whether to apply the time the defendant spent in an alternative incarceration facility towards completion of the defendant's sentence, should the court revoke the defendant's probation. See id. §§ 18, 19; see also id. § 21. None of these sections apply specifically to a sentence the court has imposed in accordance with section 12.422 of the Penal Code.[7] Notably, however, article 42.12, section 19 authorizes a court, under certain conditions, to require as a condition of a defendant's probation that the defendant serve a term of one to twenty-four months in a community corrections facility. Id. § 19(b). Article 42.12, section 19(d) of the Code of Criminal Procedure expressly provides that a court must not apply toward the completion of a defendant's sentence the amount of time the defendant has spent in a community corrections facility. The Code of Criminal Procedure does not define "community corrections facility," but article 42.13, section 6(b) of the Code of Criminal Procedure lists several types of alternative incarceration facilities that a community supervision and corrections department may choose to operate as a community corrections facility. Id. art. 42.13, § 6(b)(2)(C); see id. art. 42.12 § 19(a) (defining "community corrections facility" in terms of facilities Code of Criminal Procedure article 42.13, section 5 lists); Trigg v. State, 801 S.W.2d 958, 959 (Tex. App.—Dallas 1990, no writ) (stating that Code of Criminal Procedure article 42.12 section 19(a) should refer to section 6(b), not section 5, of article 42.13); Attorney General Opinion JM-1131 (1989) at 3 n.1 (stating that Code of Criminal Procedure article 42.131, section 3(a), which also refers to Code of Criminal Procedure article 42.13, section 5 to define "community corrections center," should be read to refer to section 6(b) of article 42.13). Among the types of community corrections facilities listed are substance abuse treatment facilities, custody facilities and boot camps, work facilities, and halfway houses. Id. art. 42.13, § 6(b)(2)(C).

We understand that a community corrections facility that is operated as a "substance abuse treatment facility" in accordance with article 42.13 of the Code of Criminal Procedure differs from a "substance abuse treatment facility" that is operated in accordance with section 493.009 of the Government Code. Significantly, for instance, a community corrections facility is established and administered by a local entity, the community supervision and corrections department. See id. arts. 42.13, § 6, 42.131; supra note 10. The county or counties served by the community corrections center must provide the physical facilities, equipment, and utilities. Code Crim. Proc. art. 42.13, § 8(a). In contrast, as stated above, a substance abuse treatment facility operated pursuant to section 493.009 of the Government Code is developed and administered by the TDCJ, and the TDCJ must provide the facilities. See supra notes 3-4 and accompanying text. Nevertheless, we believe that the nature of the time a probationer spends at a substance abuse facility, whether such facility is operated pursuant to the relevant articles in the Code of Criminal Procedure or pursuant to section 12.422 of the Penal Code, is the same. In either type of facility, the probationer will participate in programs that will attempt to break the person's addiction to alcohol or other drugs.

In our opinion, when a court revokes a defendant's probation, the court should treat the amount of time a defendant served in a substance abuse treatment facility pursuant to section 12.422(a)(1) of the Penal Code in the same manner as the court must treat the amount of time a defendant served in a community corrections center that is operated as a substance abuse treatment facility. Thus, a judge must not apply time the defendant spent in a substance abuse treatment facility pursuant to section 12.422(a)(1) of the Penal Code toward completion of the defendant's sentence if the court revokes the defendant's probation.

SUMMARY

A judge must not apply time spent in a substance abuse treatment facility pursuant to section 12.422 of the Penal Code toward completion of the defendant's sentence if the court revokes the defendant's probation.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General