Texas is a terrible place to be a defendant. This is no secret to anyone. Texas can be particularly hard on defendants, and is one of few states that still permits state-sanctioned murder for some offenders.
But, Texas is actually surprisingly liberal in regard to how our laws are set up to address drug offenders who have chemical dependency issues.
Treatment for Misdemeanor Drug Charges
The Substance Abuse Felony Punishment (SAFP) program is a means to provide treatment for a person accused of a felony-level drug offense, and is widely publicized. However, there are treatment based programs for misdemeanor drug offenders. This makes sense: why wait to provide treatment options to a person with a substance abuse issue until he or she commits a felony? Why not offer treatment at the misdemeanor level with an eye towards deterring or preventing future felony level drug offenses?
Texas Health and Safety Code Subtitle B, Section 462.081 – Not Defense Lawyer Voodoo
A court can order a defendant charged with a misdemeanor to enter a drug treatment facility. It is important to establish at the outset that the idea of requiring a defendant to enter into a drug and alcohol treatment facility in lieu of jail time or a fine is not some crazy defense lawyer idea—it is specifically listed in the Texas Health and Safety Code, Subtitle B, “Alcohol and Substance Abuse Programs.” The Texas Health and Safety Code is where offenses involving controlled substances are listed. The Code provides in Section 462.081 that, “the judge of a court with jurisdiction of misdemeanor cases may remand the defendant to a treatment facility approved by the commission (more on this in a bit) to accept court commitments for care and treatment for not more than ninety (90) days instead of incarceration (i.e. jail time) or a fine if:
- The Court or jury has found the defendant guilty of a Class A or B misdemeanor;
- The Court finds that the offense resulted from, or was related to, the defendant’s chemical dependency;
- A treatment facility approved by the commission is able to treat the defendant for chemical dependency; and
- The treatment facility agrees in writing to admit the defendant under this section (of the code.)”
Thus, the legislature specifically intended for treatment in a residential drug and alcohol treatment facility to be available in some instances for defendants as an alternative to jail or a fine. This much is clear. Note that one of the criteria is not “and defendant agrees to enter into treatment”—just as the court doesn’t care if a defendant wants to go to prison or not, the court may order a defendant to enter a treatment program irrespective of the wishes of the defendant. (The effect of being judicially ordered into treatment is another topic altogether. Many people, including myself, question how effective court-ordered drug treatment is, versus the accused voluntarily entering treatment.)
It is important to be aware that treatment in a drug or alcohol dependency program pursuant to Section 462.081 still operates as a conviction. See 462.081(c). What treatment is, however, is “alternative sentencing,” insofar as contemplates rehabilitation (treatment and prevention) versus jail time and/or fines.
“Approved By the Commission”
Additionally, the statute provides that the facility must be “approved by the commission” for treatment of chemical dependency. The “commission” refers to the Texas Commission on Alcohol and Drug Abuse. Texas Health and Safety Code, Subtitle B, Section 462.001(4).
“Chemical Dependency”
“Chemical dependency” means include both the abuse of alcohol and controlled substances (drugs); the psychological or physical dependence on alcohol or drugs; or addiction to alcohol or drugs. Section 462.001(3)(a)-(c). Note that these are actually FOUR different definitions of “chemical dependency”: a person is “chemically dependent” on alcohol or drugs if the person abuses alcohol or drugs; a person is also “chemically dependent” on alcohol or drugs if the person is psychologically dependent on alcohol or drugs; a person is also “chemically dependent” if the person is physically dependent on alcohol or drugs (i.e. suffers withdrawal symptoms without them); and, a person is also “chemically dependent” on alcohol or drugs if the person is addicted to alcohol or drugs. While there is often cross-over among these definitions—a person who is addicted to opiates often has withdrawal symptoms when they are clean, and so on—these are actually four different definitions of “chemical dependency.”
State of Texas Policy On Chemical Dependency: “A Preventable and Treatable Illness”
As I mentioned above, it’s no secret that Texas is not a great place to a defendant. Thus, you might expect that Texas views chemical dependency as a problem created by, or wholly within the control, of the chemically dependent person. Or that Texas believes that jail time is the only way to dry out or get clean.
You would be wrong. The Texas Legislature opens Subtitle B, by acknowledging that chemical dependency is a “preventable and treatable illness” and is a “public health problem affecting the general welfare and economy of the state.” This is a big deal: Texas recognizes (as indeed it should, based on the wealth of scientific research into addiction) that chemical dependency is an illness. An illness, generally, is something that is preventable or treatable, as well as something that potentially can affect the public at large.
The question then becomes how will Texas address the illness of chemical dependency? The Code states that “[t]he legislature recognizes the need for proper and sufficient facilities, programs, and procedures for prevention, intervention, treatment, and rehabilitation.”
Meaning, Texas recognizes that jail isn’t going to cut it towards addressing the issues posed by chemical dependency. “It is the policy of this state that a chemically dependent person shall be offered a continuum of services that will enable the person to lead a normal life as a productive member of society.” This sounds like Texas is (shockingly) supportive of the idea of rehabilitation (versus punishment for the sake of punishment) in chemical dependency cases. And, indeed, Texas supports the idea that a chemically dependent person can be treated and rehabilitated, and made into a productive member of society. Texas Health and Safety Code, Subtitle B, Section 461.001. (emphasis added) While this slightly misses the point—many chemically dependent people are already productive members of society, albeit productive members of society with chemical dependency issues—Texas takes a liberal stance towards addiction in the Health and Safety Code.
The reference to a “continuum of services” contemplates that treatment and rehabilitation will be offered in some instances—not just jail time and fines. This underscores the official policy of the State of Texas that drug and alcohol dependency are a preventable and treatable illness; and that treatment and other programs can address this illness with some success. Note that jail time and fines are not listed as methods of treating the illness of drug and alcohol addiction. Why? Because the efficacy of jail time and monetary fines for drug offenses seldom, if ever, successfully treat the underlying cause of the illness in the first place.