Untitled Texas Attorney General Opinion

December 29, 1989

Mr. Jerry P. Cunningham Opinion No. JM-1131
Chairman
Texas Commission on Alcohol Re: Applicability of article
and Drug Abuse 5561cc, V.T.C.S., to local
1705 Guadalupe substance abuse treatment
Austin, Texas 78701-1214 facilities or court residen-
tial treatment facilities
(RQ-1828)

Dear Mr. Cunningham:

You ask several questions with respect to whether
"substance abuse treatment facilities" and "court residen-
tial 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 depart-
ments 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. 55 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. 4 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.

p. 5949
Mr. Jerry Cunningham - Page 2 (JM-1131)

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 j'community supervision
and corrections departments" (departments). Such depart-
ments, like their predecessor local probation departments,
generally correspond to judicial districts. See Code Crim.
Proc. art. 42.131, 5 2. They are estabxhed 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. & art.
42.13, 9 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) communitv corrections facilities,
including:

(i) restitution facilities:

(ii) cou rt residential treatment
facilities;

(iii) substance abuse treatment
facilities;

p. 5950
Mr. Jerry Cunningham - Page 3 (JM-1131)

(iv) custody facilities and boot
camps;

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

intermediate sanction facili-
ties; (vi)

(vii) pre-parole transfer facili-
ties:

(viii) halfway houses: and

(ix) work facilities. (Emphasis
added.)

The terms ftsubstance 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 0:
article 42.131 appears to authorize a local "community
supervision and corrections department" to establish the
types of "community corrections facilities" described in
article 42.13.1

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

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.s., 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.

p. 5951
Mr. Jerry Cunningham - Page 4 (JM-1131)

treatment facilities are codified in chapter 464, subchapter
A, of the new Health and Safety Code. Acts 1989, 71st Leg.,
ch. 678, 0 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 5561~~. Acts 1989,
71st Leg., ch. 660, at 2171.2

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 & 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(l) 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(l). Facilities operated
directly by a department would be staffed by district
personnel employed by district judges. Code Crim. Proc.
art. 42.131, 5 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(l), 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

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.

p. 5952
Mr. Jerry Cunningham - Page 5 (JM-1131)

464.003(l). 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.s., id. 5 464.003(4) (exempting from commission licensure
an "educational program for intoxicated drivers").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 2ccj.4 We

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), 5 4A, providing for department contracts with
other entities.

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
(Footnote Continued)

p. 5953
Mr. Jerry Cunningham - Page 6 '(JM-1131)

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 l(7) & (12) of Article
5561cc, V.T.C.S. as amended)?

"Substance abuse treatment facilities" Andy "court
residential treatment facilities" are not statutorily
defired 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

(Footnote Continued)
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, § ll(lO),
(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. § ll(16).

p. 5954
Mr. Jerry Cunningham - Page 7 (JM-1131)

the community justice assistance division and/or the local
community supervision and corrections departments, and
ultimately on whether a z:;z;Sfacility, regardless of the
rubric attached to it, ,,treatment,,as defined in
chapter 464, subchapter A, of the Health and Safety Code, as
amended.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, 303-4, 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(l) of the
Health and Safety Code, except where services were provided
directly by, a state agency. Also, if the facility is
operated under sta.ndards 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

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 l,treatmentl,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.11
37 T.A.C. 0 321.14.

p. 5955
 1

Mr. Jerry Cunningham - Page 8 (JM-1131)

exemption" for substance abuse treatment facilities and
court residential treatment facilities.

Your third question is:

If a local adult probation department re-
ceives 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,

under Section 2c of Article 42.13
..,'I,.,. (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(l), 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
5561~~ 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:

p. 5956
,

Mr. Jerry Cunningham - Page 9 (JM-1131)

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 18substance abuse
treatment facility" and Vourt 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
"treatment facility" and offers Vreatmenttl within th:
meaning of the commission's licensure provisions, gee 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(l)
of the Health and Safety Code, as amended.

Neither would a facility offering such
treatment services contract to a
department be exempt asofidirectly 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

p. 5957
Mr. Jerry Cunningham - Page 10 (JM-1131)

the Department of Criminal Justice, pursuant
to article 42.13, section 2(c), of the Code
of Criminal Procedure.

Very truly
I .

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

p. 5958