Virtually all substance abuse programs involve participation in group counseling, usually led by a staff member. Participants are encouraged to accept responsibility and accountability for past misdeeds. The premise of this form of therapy is that to create and maintain a positive, constructive mindset, the individual must own his or her past misdeeds and accept them as stepping stone to move forward. The problem is that some of these misdeeds may be criminal, thus creating a legal tension between confidentiality and disclosure.


Article 38.101 of the Texas Code of Criminal Procedure provides that a “communication to any person involved in the treatment or examination of drug abusers by a person being treated voluntarily or being examined for admission to voluntary treatment for drug abuse is not admissible.”


Texas Rules of Evidence 509(b) provides that: “ … there is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.”


These statutes notwithstanding, there are occasions when the tension between confidentiality and disclosure arises.


This past April the Texas Court of Criminal Appeals in Absalon v. State had an opportunity to resolve one of these conflicts.


In 2012, Ryland Shane Absalon was convicted for the 1984 murder of Ginger Hayden. The Hayden murder remained “cold” until 2009 when Detective Jose Hernandez of the Fort Worth Police Department was assigned the task of determining how many of the department’s cold cases could be solved through DNA testing.


One of the first cases that caught the detective’s attention was the Hayden murder because there were a number of pieces of evidence receptive to DNA analysis. The results of those tests led detectives to Absalon who was arrested in 2010 and charged with the murder of Ginger Hayden.


The background facts leading up to Absalon’s arrest were reported in the Court’s opinion.


In 1986, he was convicted for criminal mischief and was placed on probation with a stipulated condition that he participate in and complete a substance abuse program known as Straight, Inc. He completed the program and his probation expired in 1987.


After the 2010 arrest of Absalon, several individuals who had participated in the Straight, Inc. program with Absalon came forward to say he had confessed to the murder during his participation in the substance abuse program. The Court of Criminal Appeals said one of the individuals was Shane Garrett who had arranged for Absalon to stay at his parents’ home during the program “because Straight, Inc., required newcomers to go home with participants who were further along in their treatment.” The two drug abusers slept in the same room and became late night conversation chums.


According to Garrett, it was during one of these conversations that Absalon “admitted to murdering a girl.” Absalon reportedly said the murder occurred because Hayden had rebuffed his gestures of romance. He believed, according to Garrett, that he had committed the perfect murder because “he had done such a good job of cleaning it up.” Garrett stated he never conveyed the information about the Hayden murder to anyone until Absalon’s arrest and after he saw the murdered girl’s case on television.


Two other Straight, Inc., participants—Stephanie Knight and Michelle Valencia—also came forward with the accusation that Absalon had stood up during a group session and informed the group that “he had killed a girl by stabbing her multiple times.” Knight was contacted by the police and Valencia contacted the police on her own after seeing news reports about Absalon’s arrest.


Absalon’s counsel filed a pretrial motion to suppress the testimony of these three individuals because the statements Absalon reportedly made to them “were made during the course of voluntary substance-abuse treatment”—a violation of Art. 38.101 and Rule 509(b). The trial court denied the motion, ruling that since Absalon’s participation in Straight, Inc., was court-ordered, his participation was “not voluntary.” The Thirteenth Court of Appeals in Fort Worth upheld the trial court’s ruling.


And that’s how the case ended up before the Court of Criminal Appeals which faced two antipodean arguments.  Absalon tried to convince the court that because the U.S. Supreme Court n 2009 held that “plea bargains are voluntary bilateral contracts,” his stipulation in the plea agreement that he participate in Straight, Inc., was voluntary. As a collateral argument, Absalon reasoned that the statements of the three individuals who came forward could not be used because Straight, Inc., had promised him that “his statements would be confidential” and the trial court’s embrace of the program made it the “guarantor” of that promise of non-disclosure.


The State, on the other hand, argued there was a distinction between Absalon’s “plea bargain and the subsequent court-ordered condition of probation.” The State pointed to the fact that the plea agreement only required participation in the program; that the requirement that he actually complete the program was a condition of the probation ordered by the trial court. The State reasoned that once the trial court accepted the plea agreement and added the condition that Absalon had to complete the program, his participation was no longer voluntary. In effect, the State premised its argument on the theory that unlike a voluntary participant, Absalon “had no choice but to participate in the program or face incarceration.”


The Court of Criminal Appeals agreed with the State, finding that “although appellant entered the plea-bargain ‘contract’ voluntarily, this does not mean that he was a voluntary participant at Straight, Inc., for the purposes of Rule 509 and article 38.101. When appellant entered into the plea agreement, he was already subject to the court’s authority because he was going to be tried on the criminal mischief charge. He was simply making the choice between entering the plea bargain or proceeding to trial. While he voluntarily agreed to the specific conditions of probation, including participation in the substance-abuse treatment, he did so only to avoid trial and incarceration. Once the court accepted the agreement, it ordered Appellant to participate in and complete the program, and he would have been incarcerated if he did not do so. This is not comparable to an individual who voluntarily enters substance-abuse treatment. Rule 509 and article 38.101 were meant to protect those individuals who want to better themselves and who seek help on their own volition—not those who use substance-abuse treatment as a bargain chip to avoid a criminal trial.”


As criminal defense attorneys, our advice is never to accept the assurances of confidentiality promised in substance-abuse treatment program agreements. If an individual elects to be up front and own up to some or all of his or her past misdeeds, he or she should do so with the understanding that self-incriminating statements about criminal misdeeds can, and will be, used against them.


Rule 509 and Article 38.101 notwithstanding, our advice in this: if the individual decides to confess to past criminal wrongs, regardless of the setting, he or she should be aware that the incriminating statements can be used in a court of law.


And, more to the point, criminal defense attorneys should advise their clients, who are court ordered into substance-abuse treatment programs, to be circumspect about what they say and reveal during treatment. If the program, which almost all do, demands acceptance of responsibility for past misdeeds, be aware that criminal charges can, and will be, brought against them if they elect to confess to misdeeds that were criminal.