Does a substance abuse or court residential treatment facility run by a Texas probation department need a state license, or is it exempt as a state-operated facility?

Texas AG Opinion JM-1131: Do Probation-Run Treatment Facilities Need a State License?

Plain-English summary

Effective January 1, 1990, a large reorganization of the Texas criminal justice system (House Bill 2335) replaced the Adult Probation Commission and local probation departments with a new structure: a Texas Department of Criminal Justice containing a community justice assistance division, and local "community supervision and corrections departments" established by the district judges who handle criminal matters. Those local departments could set up various "community corrections facilities," including substance abuse treatment facilities (SATFs) and court residential treatment facilities (CRTFs).

The chairman of the Texas Commission on Alcohol and Drug Abuse asked whether SATFs and CRTFs run by, or contracted for by, these local departments had to be licensed by the commission. At the same time, a separate 1989 law (Senate Bill 1674) required anyone who offers or purports to offer chemical dependency treatment to obtain a commission license, and the new Health and Safety Code (chapter 464, subchapter A) carried forward the old article 5561cc licensure scheme, with an exemption for "facilities directly operated by the state."

The Attorney General concluded that a facility run directly by a local community supervision and corrections department does not qualify for that state-operated exemption. Those departments are staffed by district personnel employed by the district judges, and the statute specifically says those employees are not state employees (except for limited tort and workers' compensation purposes). A facility that a department merely contracts with is not "directly operated by the state" either, just because the department paid for its services. The only way a contracted facility gets the state-operated exemption is if the contractor actually operating it is itself a state agency.

The real exemption route the Legislature intended, the Attorney General said, is section 2(c) of the new article 42.13 of the Code of Criminal Procedure. Under it, the community justice assistance division, after consulting the Commission on Alcohol and Drug Abuse, adopts operating standards for substance abuse facilities and programs run by the division and by the departments. A facility that operates under those validly adopted standards "is not required to be licensed or otherwise approved by any other state or local agency." So a probation-run treatment facility avoids commission licensure by operating under the division's standards, not by claiming to be state-operated.

On the narrower questions: the terms SATF and CRTF are not statutorily defined, so whether a given facility needs a license turns on the standards adopted for it and on whether it in fact offers "treatment" as chapter 464 defines that word. There is no blanket exemption for these facilities. Receiving state or federal funds does not by itself make a facility exempt. And the commission has no authority to waive its licensure requirements. As for whether CRTF and SATF mean the same thing, the Attorney General read the labels to signal that CRTFs are residential while SATFs are not necessarily residential, and that SATFs offer substance abuse treatment while CRTFs might not; ultimately, licensure depends on whether the facility actually offers "treatment."

Currency note

This opinion was issued in 1989. 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.

This opinion interpreted statutes as they stood at the January 1, 1990 reorganization. The agencies named here have since been reorganized (the Commission on Alcohol and Drug Abuse's functions were later absorbed into other state health agencies), and chapter 464 of the Health and Safety Code has been amended. Anyone dealing with treatment-facility licensing today should check the current Health and Safety Code and the current licensing authority.

Who this opinion affected (as of 1989)

The Commission on Alcohol and Drug Abuse: The opinion confirmed the commission's licensure authority reached probation-run substance abuse and court residential treatment facilities that offer "treatment," and told the commission it had no power to waive its licensure requirement. It also identified the community justice assistance division's standards, adopted after consulting the commission, as the intended exemption path.

Local community supervision and corrections departments: These departments (successors to local probation departments, effective January 1, 1990) learned that facilities they operated directly, or contracted for, were not exempt from commission licensure as "state-operated," and that the workable exemption was to operate under the division's standards.

Treatment facilities under contract with departments: A contracted facility was exempt as state-operated only if a state agency actually operated it; a department's payment for services did not make the facility state-operated.

The community justice assistance division: The opinion described the division's role in adopting operating standards, after consultation with the commission, that would exempt covered facilities from commission licensure.

Common questions

Did a probation-run substance abuse treatment facility need a state license?
Generally yes, if it offered "treatment" as defined in the Health and Safety Code, unless it operated under standards adopted by the community justice assistance division. It did not qualify for the "directly operated by the state" exemption just because a local department ran it.

Why didn't running the facility count as "state-operated"?
Because the local community supervision and corrections departments were staffed by district personnel employed by the district judges, and the statute said those employees were not state employees (except for limited tort and workers' compensation purposes). So a department-run facility was not "directly operated by the state."

How could such a facility avoid commission licensure?
By operating under standards validly adopted by the community justice assistance division under section 2(c) of article 42.13 of the Code of Criminal Procedure, after the division consulted the Commission on Alcohol and Drug Abuse. A facility operating under those standards was not required to be licensed or approved by any other state or local agency.

Did receiving state or federal funds make a facility exempt?
No. The Attorney General concluded that receipt of state or federal funds was not, by itself, determinative of a facility's exempt status.

Could the commission waive its licensure requirement for a facility?
No. The Attorney General found no authority for the Commission on Alcohol and Drug Abuse to waive its licensure requirements.

Are CRTFs and SATFs the same thing?
Not by definition. Neither term is statutorily defined. The Attorney General read the labels to indicate that court residential treatment facilities are residential while substance abuse treatment facilities are not necessarily residential, and that SATFs offer substance abuse treatment while CRTFs might not. Whether either needs a license depends on the standards adopted and on whether the facility actually offers "treatment."

Background and statutory framework

House Bill 2335 (Acts 1989, 71st Leg., ch. 785, at 3471) reorganized the Texas criminal justice system effective January 1, 1990. It created the Texas Department of Criminal Justice with a community justice assistance division, transferred the powers and duties of the Adult Probation Commission to the department, repealed article 42.121 of the Code of Criminal Procedure (the Adult Probation Commission), and added a new article 42.13 for the division. It also repealed the provision for local "probation departments" and added article 42.131 establishing "community supervision and corrections departments," which generally correspond to judicial districts, are established by the district judges handling criminal matters, and are supported by county, judicial-district, and state funds channeled through the division. A department may receive state aid only if a "community justice plan" is submitted; section 6(b) of article 42.13 lists the community corrections facilities such a plan may describe, including restitution facilities, court residential treatment facilities, substance abuse treatment facilities, custody facilities and boot camps, intermediate sanction facilities, pre-parole transfer facilities, halfway houses, and work facilities.

The licensure provisions sat in chapter 464, subchapter A, of the new Health and Safety Code (Acts 1989, 71st Leg., ch. 678, § 1, at 2881), which derived primarily from former article 5561cc, V.T.C.S. Because a separate 1989 bill, Senate Bill 1674 (Acts 1989, 71st Leg., ch. 660, at 2171), amended article 5561cc, the codified provisions had to be read together with the Senate Bill 1674 amendments; Government Code section 311.031(c) preserves an amendment made by the same legislature that enacted a code. Senate Bill 1674 required "a person who offers or purports to offer chemical dependency treatment" to obtain a license, defining "treatment" as a planned, structured, and organized program designed to initiate and promote a person's chemical-free status or to maintain the person free of illegal drugs. Section 464.003(1) exempted "facilities directly operated by the state."

The Attorney General read that exemption narrowly. Facilities operated directly by a community supervision and corrections department would be staffed by district personnel employed by district judges, who under section 6 of article 42.131 are not state employees except for limited tort-claims and workers'-compensation purposes, so such facilities are not "directly operated by the state." A facility a department merely contracts with is not state-operated either, unless the contracting party actually operating it is a state agency. The opinion identified section 2(c) of article 42.13 as the primary exemption the Legislature intended: after consultation with the Commission on Alcohol and Drug Abuse, the division adopts operating standards, and a facility or program operating under those standards is not required to be licensed or otherwise approved by any other state or local agency. The opinion also noted a separate exemption for an "educational program for intoxicated drivers" (§ 464.003(4)), referenced the DWI-probation treatment conditions in article 42.12 (§§ 11, 13(f)), the department's contracting authority under V.T.C.S. article 4413(32), § 4A, and an Adult Probation Commission rule (37 T.A.C. § 321.14) describing court residential treatment facilities. It declined to address the legality of any particular contract.

Citations

Statutory and regulatory authorities:

• article 5561cc, V.T.C.S. (as amended by Senate Bill 1674; source of Health and Safety Code ch. 464, subch. A)
• Code of Criminal Procedure art. 42.13 (community justice assistance division; § 2(c) standards exemption; § 6(b) community justice plan); art. 42.131 (community supervision and corrections departments; §§ 2, 3, 6); art. 42.12 (§§ 11, 13(f) probation conditions); art. 42.121 (repealed Adult Probation Commission)
• Health and Safety Code § 464.001 (definition of treatment); § 464.003(1) (exemption for facilities directly operated by the state); § 464.003(4) (exemption for educational programs for intoxicated drivers)
• H.B. 2335, Acts 1989, 71st Leg., ch. 785, at 3471 (§§ 1.11, 1.12, 1.20, 3.01, 3.02, 3.10, 4.17)
• Acts 1989, 71st Leg., ch. 678, § 1, at 2881 (Health and Safety Code codification)
• Senate Bill 1674, Acts 1989, 71st Leg., ch. 660, at 2171 (amending article 5561cc)
• Government Code § 311.031(c) (amendment by same legislature preserved despite repeal-by-code)
• V.T.C.S. art. 4413(32), § 4A (department contracting authority); art. 4413(49a) (referenced offender category)
• 37 T.A.C. § 321.14 (Adult Probation Commission rule on court residential treatment facilities)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1131
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1131.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

December 29, 1989

Mr. Jerry P. Cunningham
Chairman
Texas Commission on Alcohol and Drug Abuse
1705 Guadalupe
Austin, Texas 78701-1214

Opinion No. JM-1131

Re: Applicability of article 5561cc, V.T.C.S., to local substance abuse treatment facilities or court residential treatment facilities (RQ-1828)

Dear Mr. Cunningham:

You ask several questions with respect to whether "substance abuse treatment facilities" and "court residential treatment facilities," which are referred to in new article 42.13 of the Code of Criminal Procedure, must be licensed by the Texas Commission on Alcohol and Drug Abuse (the commission). You are concerned about facilities which are "operat[ed] directly by local adult probation departments or whose services are contracted by the local adult probation departments." You ask that we "resolve these issues with respect to the statutory law as it will exist January 1, 1990."

House Bill 2335 of the 71st Legislature effected a reorganization of the criminal justice system in Texas. Acts 1989, 71st Leg., ch. 785, at 3471. That act established a Texas Department of Criminal Justice which is to include, inter alia, a "community justice assistance division." Id. §§ 1.11, 1.12, at 3473. The act further provides that on January 1, 1990, the powers, duties, etc., of the Adult Probation Commission are transferred to the Department of Criminal Justice. Id. § 1.20, at 3475. Section 3.10 of the act repeals article 42.121 of the Code of Criminal Procedure, which had provided for the Adult Probation Commission, and section 3.01 of the act adds a new article 42.13 providing for the community justice assistance division of the Department of Criminal Justice. Generally speaking, the act creates the community justice assistance division (the division) as the successor entity to the Adult Probation Commission.

Also, section 4.17 of the act repeals section 10 of article 42.12 of the Code of Criminal Procedure which had provided for local "probation departments," while section 3.02 of the act adds a new article 42.131 to the code providing for the establishment of "community supervision and corrections departments" (departments). Such departments, like their predecessor local probation departments, generally correspond to judicial districts. See Code Crim. Proc. art. 42.131, § 2. They are established by the district judge or judges handling criminal matters, and are financially supported by the counties they serve, judicial district funds, and state funds provided through the division. A department may receive state aid through the division only if a "community justice plan" has been submitted to the division for the department. Id. art. 42.13, § 6. Subsection (b) of section 6 provides in pertinent part with respect to the community justice plan:

A community justice plan required under this section must include:

(1) a summary of services provided by or available to the department at the time the plan is submitted;

(2) a description of proposed new facilities or programs or significant expansion of existing facilities or programs and a summary of how the department proposes to use the facilities or programs, with a particular emphasis on the plans of the department to expand the department's use of:

(A) electronic monitoring programs;

(B) testing for controlled substances; and

(C) community corrections facilities, including:

(i) restitution facilities;

(ii) court residential treatment facilities;

(iii) substance abuse treatment facilities;

(iv) custody facilities and boot camps;

(v) facilities for offenders described by Section 1, Article 4413(49a), Revised Statutes;

(vi) intermediate sanction facilities;

(vii) pre-parole transfer facilities;

(viii) halfway houses; and

(ix) work facilities. (Emphasis added.)

The terms "substance abuse treatment facilities" and "court residential treatment facilities," which are included in the article 42.13 description of "community corrections facilities," are not statutorily defined. Section 2 of article 42.131 appears to authorize a local "community supervision and corrections department" to establish the types of "community corrections facilities" described in article 42.13.[Footnote 1]

The focus of your inquiry is whether substance abuse treatment facilities (SATFs) and court residential treatment facilities (CRTFs), either directly operated by or the services of which are contracted by local departments, must be licensed by the Commission on Alcohol and Drug Abuse. Provisions for the commission's licensure of certain treatment facilities are codified in chapter 464, subchapter A, of the new Health and Safety Code. Acts 1989, 71st Leg., ch. 678, § 1, at 2881. The provisions of subchapter A derive primarily from former article 5561cc, V.T.C.S., which was repealed by section 13 of the codifying act. The provisions of subchapter A must, however, be read with the provisions of a separate bill of the 71st Legislature, Senate Bill 1674, which amended article 5561cc. Acts 1989, 71st Leg., ch. 660, at 2171.[Footnote 2]

Senate Bill 1674 provides that "a person who offers or purports to offer chemical dependency treatment must obtain a license" from the commission. Id.; see also id. ch. 678, at 2882. "Treatment" is defined as "a planned, structured, and organized program designed to initiate and promote a person's chemical-free status or to maintain the person free of illegal drugs." Id. As you note in your request however, section 464.003(1) of subchapter A, read with the Senate Bill 1674 amendments, exempts from the licensure requirement "facilities directly operated by the state."

We do not think that facilities operated by local departments, to the extent that they offer "treatment" as defined in subchapter A as amended, would fall within the exemption for "facilities directly operated by the state" provided for in section 464.003(1). Facilities operated directly by a department would be staffed by district personnel employed by district judges. Code Crim. Proc. art. 42.131, § 2. Section 6 of article 42.131 specifically provides that such employees are not state employees except for certain tort claims and workers compensation purposes.

We do not think that facilities with which local departments contract for services could be said to be "facilities directly operated by the state," within the meaning of section 464.003(1), merely by reason of a local department's having contracted for their services. If, on the other hand, the department contracted with a facility operated directly by a state agency for the services in question, the facility would be exempt under section 464.003(1). Also, a facility with which the department contracted that was exempt from licensure by the commission under other provisions would not require licensure. See, e.g., id. § 464.003(4) (exempting from commission licensure an "educational program for intoxicated drivers").[Footnote 3]

From a reading of the applicable provisions, it is apparent that the legislature intended section 2(c) of new article 42.13 to be the primary way of exempting department treatment facilities from commission licensure. Section 2(c) provides:

(c) After consultation with the Texas Commission on Alcohol and Drug Abuse, the division by rule shall establish standards for the operation of substance abuse facilities and programs by the division and by departments. A facility or program operating under the standards is not required to be licensed or otherwise approved by any other state or local agency.

If a treatment facility, operated either by a department directly or by lawful contract, operates under standards validly established by the community justice assistance division pursuant to "consultation" with the Commission on Alcohol and Drug Abuse, the facility would be exempt from commission licensure under the terms of section 2(c).[Footnote 4] We understand from discussions with the legal staff at the Adult Probation Commission, which will be succeeded by the community justice assistance division of the Department of Criminal Justice on January 1, 1990, that the division intends to consult with the Commission on Alcohol and Drug Abuse and establish standards for the types of community corrections facilities about which you are concerned.

In light of the foregoing discussion, we will briefly respond to your questions as presented in your request.

Your first question is:

Are SATFs and CRTFs chemical dependence 'treatment facilities' offering or purporting to offer 'treatment' (as those terms are defined in Section 1(7) & (12) of Article 5561cc, V.T.C.S. as amended)?

"Substance abuse treatment facilities" and "court residential treatment facilities" are not statutorily defined terms. The nature of such facilities for purposes of the commission's licensure provisions will depend on the standards for their operation, which are to be adopted by the community justice assistance division and/or the local community supervision and corrections departments, and ultimately on whether a particular facility, regardless of the rubric attached to it, offers "treatment" as defined in chapter 464, subchapter A, of the Health and Safety Code, as amended.[Footnote 5]

Your second question is:

If so, are either or both CRTFs or SATFs made generally exempt from the requirement of licensure pursuant to the terms of Sections 2(a) and (b) of Article 5561cc, as amended, by the terms of H.B. 2335 read in its entirety? See relevant provisions on the following pages of the attached H.B. 2335: 7-8, 13, 20-21, 24-25, 30-34, 56, 83, 90, 95, and 111.

As discussed above, we do not think that SATFs or CRTFs operated by a local community supervision and corrections department, or the services of which are contracted for by local departments, would be exempt as "facilities directly operated by the state" pursuant to section 464.003(1) of the Health and Safety Code, except where services were provided directly by a state agency. Also, if the facility is operated under standards validly adopted by the community justice assistance division under section 2(c) of article 42.13 of the Code of Criminal Procedure, it would be exempt from licensure by the Commission on Alcohol and Drug Abuse under the provisions of that section. There is no "general exemption" for substance abuse treatment facilities and court residential treatment facilities.

Your third question is:

If a local adult probation department receives state or federal funds under a grant or contract with the Texas Adult Probation Commission or its successor, are either or both CRTFs or SATFs operated by or funded by the local office exempt:

a. as facilities operated by the state, regardless of the wording in H.B. 2335, or,

b. under Section 2c of Article 42.13 . . . (H.B. 2335).

We do not think that the receipt of state or federal funds by a local department (to be known as a "community supervision and corrections department" as of January 1, 1990), is in itself determinative of the exempt status of a facility operated or funded by the department. The receipt of such funds does not in itself determine, for example, whether the facility is exempted as one "directly operated by the state," under Health and Safety Code section 464.003(1), or as one operated under standards validly established by the community justice assistance division, after consultation with the commission, pursuant to section 2(c) of article 42.13 of the Code of Criminal Procedure.

Your fourth question is:

Does TCADA have legal authority under Article 5561cc to waive its current requirement of licensure of CRTFs if the CRTF offers chemical dependency treatment services as defined in the Act (as opposed to limiting its services to substance abuse counseling) without offering or purporting to offer treatment?

We find no authority for the Commission on Alcohol and Drug Abuse to "waive" its licensure requirements.

Your last question is:

Were the terms CRTF and SATF intended by the legislature to be synonymous entities for purposes of applying Article 5561cc?

As we stated earlier, the terms "substance abuse treatment facility" and "court residential treatment facility" are not statutorily defined. We think that the legislature intended that the nature of such facilities, for purposes of the commission's licensure provisions, is to be determined by the standards adopted for their operation by the community justice assistance division and/or the local community supervision and corrections departments that operate them. The respective appellations indicate that CRTFs are to be residential facilities but substance abuse treatment facilities not necessarily so, and that SATFs offer substance abuse treatment while court residential treatment facilities might not. Regardless of the rubric attached to it, whether a particular facility is a "treatment facility" and offers "treatment" within the meaning of the commission's licensure provisions, see Health & Safety Code ch. 464, subch. A, as amended, will ultimately depend on whether the facility in fact offers such "treatment."

SUMMARY

A community corrections facility directly operated by a community supervision and corrections department under articles 42.13 and 42.131 of the Code of Criminal Procedure, and offering substance abuse 'treatment' as defined in Health and Safety Code section 464.001, as amended, would not be exempt from licensure by the Commission on Alcohol and Drug Abuse as "a facility directly operated by the state" pursuant to section 464.003(1) of the Health and Safety Code, as amended.

Neither would a facility offering such treatment services contracted to a department be exempt as directly operated by the state unless the contractee directly operating the facility is a state agency.

Such a facility would, however, be exempt from licensure by the commission if it operates under standards validly adopted by the community justice assistance division of the Department of Criminal Justice, pursuant to article 42.13, section 2(c), of the Code of Criminal Procedure.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General

Footnote 1: Section 3 of article 42.131 provides that a department "may establish community corrections facilities of the types described by section 5, Article 42.13." Section 5 of article 42.13 does not, however, appear to describe "types of facilities." Rather, it authorizes the community justice assistance division to take certain actions regarding the establishment of community corrections facilities (e.g., develop standards, fund contracts, etc.). We think it apparent that the intent of section 3 of article 42.131 is, in effect, to authorize a department to establish the "types of facilities" listed in section 6, subsection (b), of article 42.13, quoted above.

Footnote 2: Government Code section 311.031(c) provides, in part, that the repeal of a statute by a code does not affect an amendment of the statute by the same legislature that enacted the code. The amendment is preserved and given effect as part of the code provision.

Footnote 3: Please note, however, that we do not here address the legality of a department's contracting for the services of any particular facility. We address here only the question of licensure with respect to facilities with which a department has lawfully contracted. But see V.T.C.S. art. 4413(32), § 4A, providing for department contracts with other entities.

Footnote 4: Section 13(f) of article 42.12 provides that a court, upon the making of certain determinations, shall require DWI offenders, as a condition of probation, to submit to treatment for drug or alcohol dependency

in a program or facility approved or licensed by the Texas Commission on Alcohol and Drug Abuse or in a program or facility that complies with standards established by the community justice assistance division of the Texas Department of Criminal Justice, after consultation by the division with the commission.

Also, section 11 of article 42.12 provides for basic conditions of probation and gives the sentencing court the authority to require the defendant to participate or remain under custodial supervision in a "community based" program or facility, see Code Crim. Proc. art. 42.12, § 11(10), (12), or to

participate in substance abuse treatment services in a program or facility approved or licensed by the Texas Commission on Alcohol and Drug Abuse, if the person was sentenced for the offense involving controlled substances or the court determines that the defendant's use of controlled substances was connected to the commission of the offense . . . .

Id. § 11(16).

Footnote 5: Of course, if facilities denominated as substance abuse treatment facilities in fact offer substance abuse treatment, they will most likely be "treatment facilities," offering "treatment" within the meaning of article 5561cc, as amended, i.e., subchapter A of chapter 464 of the Health and Safety Code. The nature of court residential treatment facilities is not so apparent from that appellation. We note that the term "court residential treatment facility" is used in a rule adopted in 1988 by the Adult Probation Commission to refer to residential facilities operated by local probation departments for felony offenders "exhibiting drug and alcohol abuse problems or mental health problems." 37 T.A.C. § 321.14.