Can a Texas prosecutor make you plead guilty to get into a pretrial diversion program?

Plain-English summary

The Administrative Director of the Office of Court Administration asked the Attorney General whether a prosecutor may require a defendant to plead guilty as a condition of participating in a pretrial intervention program (also called pretrial diversion) under section 76.011 of the Government Code. In a pretrial diversion arrangement, the State agrees to dismiss the case if the defendant completes agreed conditions within a set time; the trial setting is continued, and if the defendant complies, the charges are dismissed, while if not, the case proceeds to trial.

The opinion did not resolve the question. It explained that section 76.011 lets a community supervision and corrections department operate pretrial intervention programs and says a program "may include reasonable conditions related to the purpose of the program, including testing for controlled substances," but the statute does not define the purpose of pretrial intervention or explain what makes a condition "reasonable" beyond naming drug testing. With no statutory or judicial authority addressing the specific question, the opinion found the gap too large to fill by inferring legislative intent.

The opinion laid out the considerations on both sides. On one hand, a court decision (Fisher v. State) had described pretrial diversion's purpose as giving the defendant a chance to have charges dismissed before any finding of guilt, and the Legislature's later amendment letting someone who completes a section 76.011 program expunge the arrest records suggested the program is meant to let a defendant atone without suffering the consequences of a judgment, both of which point against requiring a guilty plea. On the other hand, no legal authority directly limits the scope of a pretrial intervention agreement; courts have likened these agreements to negotiated plea agreements, which are treated like contracts whose terms are largely left to the parties.

Because neither statutes nor judicial decisions offered useful guidance, the opinion concluded the Attorney General could not advise definitively whether a prosecutor may require a guilty plea as a condition of pretrial intervention. The office can advise only on the current state of the law and cannot make law where it does not yet exist; it is for the Legislature to provide a more explicit framework. Since the requestor's second question was to be reached only if the first were answered yes, the opinion did not address it.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Office of Court Administration and the courts (as the opinion described it): The opinion told the requestor that it could not answer the question, because no controlling statute or court decision addressed whether a guilty plea may be required for pretrial intervention, and it identified the Legislature as the body that would have to provide the framework.

Prosecutors and defense attorneys (as the opinion described it): The opinion stated that it had found no law prohibiting a prosecutor from using a guilty plea as a condition of pretrial intervention, and no law directly authorizing or limiting it either, so it declined to give a definitive answer.

The Legislature (as the opinion described it): The opinion identified providing a more explicit legal framework governing the scope and operation of pretrial diversion as a matter for the Legislature.

Common questions

Did the Texas AG say whether a prosecutor can require a guilty plea for pretrial diversion?
No. The opinion declined to answer, explaining there is no controlling statute or court decision on the question and that the office cannot make law where none exists.

Why couldn't the AG answer?
The opinion said section 76.011 does not define the purpose of pretrial intervention or what counts as a "reasonable condition" beyond drug testing, and that the gap in the law was too large to fill by inference.

What did the opinion say points against requiring a guilty plea?
It noted a court decision describing pretrial diversion's purpose as resolving a case before any finding of guilt, and a later expunction-statute amendment suggesting the program lets a defendant avoid the consequences of a judgment, both arguably inconsistent with a guilty-plea condition.

What did it say points the other way?
It noted that no legal authority directly limits the scope of a pretrial intervention agreement, and that courts have likened such agreements to negotiated plea agreements, which are treated like contracts whose terms are largely left to the parties.

Background and statutory framework

Section 76.011 sits within Government Code chapter 76, which establishes community supervision and corrections departments in judicial districts. Subsection 76.011(a)(1) authorizes a department to operate programs for the supervision and rehabilitation of persons in pretrial intervention programs, and subsection 76.011(b) provides that such a program may include reasonable conditions related to the purpose of the program, including testing for controlled substances. The statute supplies no definition of the program's purpose and no standard for reasonableness beyond that example.

The opinion drew on several decisions in surveying (without resolving) the question: Fisher v. State (describing pretrial diversion's purpose); R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water (plain-language statutory construction); PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship (legislative silence can sometimes support inferences about intent); In re D.R.R. and Ex parte Williams (pretrial diversion agreements likened to negotiated plea agreements, treated like contracts); and State v. Moore (plea agreement terms are largely left to the parties, with courts not interfering unless manifestly unjust). It also cited Code of Criminal Procedure article 2.01 (a prosecutor's primary duty is to see that justice is done, not to convict) and noted the expunction amendment now codified at article 55.01(a)(2)(A)(ii).

Citations

Cases:

• Fisher v. State, 832 S.W.2d 641, 643-44 (Tex. App.—Corpus Christi 1992, no writ)
• R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)
• PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 84, 87 (Tex. 2004)
• In re D.R.R., 322 S.W.3d 771, 773 (Tex. App.—El Paso 2010, no pet.)
• Ex parte Williams, 637 S.W.2d 943, 947-48 (Tex. Crim. App. 1982)
• State v. Moore, 240 S.W.3d 248, 250 (Tex. Crim. App. 2007)

Statutes:

• Tex. Gov't Code Ann. §§ 76.001-.018 (West 2005 & Supp. 2012); § 76.011(a)(1), (b)
• Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(ii) (West Supp. 2012); art. 2.01 (West 2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0986
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga0986.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

February 5, 2013

Mr. David Slayton Opinion No. GA-0986
Administrative Director
Office of Court Administration Re: Whether a prosecutor may require that a
Post Office Box 12066 defendant enter a guilty plea as a condition for
Austin, Texas 78711-2066 participation in a pretrial diversion program under
section 76.011 of the Texas Government Code
(RQ-1072-GA)

Dear Mr. Slayton:

You ask whether a prosecutor may require that a defendant enter a guilty plea as a condition of a pretrial intervention program under section 76.011 of the Government Code.[1] Pretrial intervention, also known as pretrial diversion, generally involves a written agreement between the defendant and the prosecutor approved by the court before trial. As one court described the practice,

[t]he State agrees to dismiss the case if the defendant performs certain conditions within a specified period of time. Both the State and the defendant request that the trial court continue the present trial setting to a certain date in the future to give the defendant time to comply with the agreed conditions .... On that date, the defendant must appear before the trial court. If the defendant has complied with the conditions of the agreement, the trial court grants the State's motion to dismiss the pending criminal charges. If the defendant has not complied with the conditions of the agreement, the case proceeds to trial as scheduled.

Fisher v. State, 832 S.W.2d 641, 643-44 (Tex. App.—Corpus Christi 1992, no writ). You explain that "[p]re-trial diversion pushes the time to establish guilt or innocence into the future and enables an individual to complete the program and have the charges dismissed." Request Letter at 3. You contend that "[t]he program was designed to allow the State to dismiss a case if the defendant complies with the agreed to conditions" and that "[r]equiring a defendant to plead guilty is inconsistent with this purpose." Id.

In examining a statute, our goal is "to give effect to the Legislature's intent as expressed in its plain language." R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011). Chapter 76 establishes community supervision and corrections departments ("Departments") in judicial districts and sets forth their various powers and responsibilities. See generally TEX. GOV'T CODE ANN. §§ 76.001-.018 (West 2005 & Supp. 2012). Subsection 76.011(a) provides that a Department may "operate programs for ... the supervision and rehabilitation of persons in pretrial intervention programs[.]" Id. § 76.011(a)(1) (West Supp. 2012). Subsection 76.011(b) specifies that such a program "may include reasonable conditions related to the purpose of the program, including testing for controlled substances." Id. § 76.011(b). The statute does not, however, provide further guidance on the purpose of a pretrial intervention program. Nor does the statute elaborate on what constitutes a "reasonable condition," other than to expressly provide that drug testing is one such condition, or indicate how reasonableness shall be determined.

Given the lack of any statutory or judicial authority addressing your question, our guidance is necessarily limited. In some cases legislative silence can support deductions or conclusions about legislative intent. PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 84, 87 (Tex. 2004). Here, however, the gap in legislative language is simply too large for the blanks to be filled in.

As you point out, according to the court in Fisher v. State, the purpose of pretrial intervention is to provide the defendant with an opportunity to have the charges dismissed prior to a finding of guilt or innocence. 832 S.W.2d at 643. Requiring a guilty plea as a condition of pretrial intervention arguably conflicts with this purpose. Moreover, the Legislature recently amended the criminal expunction statute to provide that, under certain circumstances, a person who has completed a pretrial intervention program under section 76.011 is entitled to have his arrest records expunged. Act of May 31, 2009, 81st Leg., R.S., ch. 1103, § 17(b), 2009 Tex. Gen. Laws 3010, 3019-20 (now codified at TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2)(A)(ii) (West Supp. 2012)). This suggests that a pretrial intervention program is intended to give a defendant a chance to atone for wrongdoing without suffering the consequences of a judgment against him, which lends further support to the view that requiring a guilty plea is inconsistent with the purposes of pretrial intervention.

On the other hand, there is no legal authority directly limiting the scope of a pretrial intervention agreement. At least one court has found that "[p]re-trial diversion agreements ... are akin to negotiated plea agreements, which have been equated to a contract." In re D.R.R., 322 S.W.3d 771, 773 (Tex. App.—El Paso 2010, no pet.) (citing Ex parte Williams, 637 S.W.2d 943, 947-48 (Tex. Crim. App. 1982)). The Texas Court of Criminal Appeals has noted that "plea agreements may contain a variety of stipulations and assurances, depending on the desires of the State and the defendant." State v. Moore, 240 S.W.3d 248, 250 (Tex. Crim. App. 2007). The Court further noted that "the terms of the plea agreement are left solely to 'the parties who are dealing at arm's length[,] [and] [t]his Court will not interfere with those terms unless they appear to be manifestly unjust.'" Id. at 251 (quoting Williams, 637 S.W.2d at 948); see also TEX. CODE CRIM. PROC. ANN. art. 2.01 (West 2005) ("It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done."). While it may be fair to say that pretrial diversion agreements are different in character from plea agreements, it is equally fair to say that neither statutes nor judicial decisions offer useful guidance about the permissible parameters of pretrial diversion agreements. We have not found any law prohibiting a prosecutor from using a guilty plea as a condition of pretrial intervention.

Due to the lack of legal authority on this matter, we cannot advise you definitively as to whether a prosecutor may require defendants to plead guilty as a condition for pretrial intervention under section 76.011 of the Government Code. Our office can advise you only on the current state of the law. We cannot make law where it does not yet exist. Because existing Texas law contains virtually no useful legal guidance regarding pretrial intervention programs, it is for the Legislature to provide a more explicit legal framework governing the scope and operation of pretrial intervention in this State. Until the Legislature does so, we cannot answer your first question.

You seek an answer to your second question only if we answer your first question in the affirmative. Because we do not definitively answer your first question, we will not address your second question.

SUMMARY

Due to the lack of controlling legal authority, we cannot advise you whether a prosecutor may require defendants to plead guilty as a condition for pretrial intervention under section 76.011 of the Government Code. It is for the Legislature to provide a more explicit legal framework governing the scope and operation of pretrial diversion in this State.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] See Letter from Mr. David Slayton, Admin. Dir., Office of Court Admin., to Honorable Greg Abbott, Tex. Att'y Gen. at 1, 4 (July 16, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").