Untitled Texas Attorney General Opinion ( 1988 )

February8, 1988
Honorable Chet Brooks Opinion No. .I%853
Chairman
Health and Human Services Re: Whether House Bill No. 83,
Committee Acts 1987, 70th Legislature,
Texas State Senate p;;riEts a judge ,from re-
P. 0. Box 12068 a probationer to
Austin, Texas 78711 make any payment to a crime
stoppers organization
Dear Senator Brooks:
You ask three questions prompted by a recent amend-
ment to the Adult Probation Law, article 42.12 of the Code
of Criminal Procedure. The enactment, House Bill No. 83,
related primarily to the continuation of the Adult Proba-
P
tion Commission, but also amended article 42.12. Acts
1987, 70th Leg., ch. 939, at 6289. The bill added section
6(e), which reads as follows:
(e) A court may not order a probationer
to make any payments as a term and condition
of probation, except for fines, court costs,
restitution of the victim, and other terms
and conditions expressly authorized by
statute.
Attorney General Opinion JM-307 (1985) concluded that
article 42.12 authorizes a judge to require a probationer
to make a payment to a private crime stoppers program as a
condition of his probation when the condition bears a
reasonable relationship to the treatment and rehabilita-
tion of the accused and the protection of the public. YOU
express concern about the effect of section 6(e) on a
judge's authority to impose this condition of probation.
Thus, you ask the following questions:
1. Is the 'may notI language used in the
bill [H.B. No. 831 specific enough to pro-
hibit ordering payments to local crime
stoppers programs?
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Honorable Chet Brooks - Page 2 (JM-853)
2. Since crime stoppers was created by
the legislature and is authorized by
statute, is it a \condition[ ] expressly -\
authorized by statute' as mentioned in House
Bill No. 83?
3. May a court offer a probationer the
choice of making a donation to a local crime
stoppers organization in lieu of part or all
of a community service condition of proba-
tion?
your first question may be answered in the affirma-
tive. Although section 6(e) does not specifically address
donations to crime stoppers organizations, it plainly
prohibits the ordering of payments as a condition of
probation except for those payments specified in section
6(e) or expressly authorized by statute. The provision
operates as a blanket prohibition, subject to the stated
exceptions. It was therefore unnecessary for the
legislature to specify the prohibited payments. Article
42.12 of the Code of Criminal Procedure, moreover, does
not authorize payments to crime stoppers programs as a
condition of probation. Neither does section 351.901 of
the Local Government Code (formerly article 2372bb,
V.T.C.S.), which authorizes county commissioners courts to
donate money to crime stoppers organizations, or article
4413(50), V.T.C.S., which establishes the Crime Stoppers
Advisory Council. Also, statutory provisions that are
negatively expressed, such as section 6(e), must neces-
sarily be construed as mandatory. E.Q., Citv of Uvalde v.
Burnev, 145 S.W. 311, 312 (Tex. Civ. App. - San Antonio
1912, no writ): Attorney General Opinion JM-501 (1986).
Thus, viewed simply as a problem of statutory construc-
tion, the language of section 6(e) is broad enough to
prohibit the ordering of payments to crime stoppers
organizations as a condition of probation.
your second question is whether donations to crime
stoppers programs may be required as a condition of
probation pursuant to section 6(e) since such programs
are, in your words, "created by the legislature and . . .
authorized by statute." Our answer to your first question
makes it clear that section 6(e) does not envision the
kinds of payments you inquire about. A crime stoppers _,
program is not created by statute: rather, it is
a nrivate. nonorofit oraanizatioq that is
operated on a local or a statewide level,
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Honorable Chet Brooks - Page 3 Of-8531
that accepts and expends donations for
rewards to persons who report to the
,-
organization information about criminal
activity, and that forwards the information
to the appropriate law enforcement agency.
(Emphasis added.)
Local Gov't Code 5351.901(a). See also V.T.C.S. art.
4413(50), 51 (defining "local crime stoppers program" as a
nprivate, nonprofit organization . . . operated on less
than a statewide level," etc.). Section 351.901(a) of the
Local Government Code and article 4413(50), V.T.C.S.,
acknowledge the existence of private crime stoppers
programs and authorize certain forms of governmental
assistance to local programs. Though these statutes
bestow official imprimatur upon crime stoppers organiza-
tions, they do not establish conditions of probation
requiring or allowing payments to a crime stoppers
organization. Accordingly, probation condition
requiring a donation to such aa program cannot, in the
absence of a more specific statutory mandate, be said to
be a "term and condition expressly authorized by statute."
,- Before answering your final question, we should
address an issue implicated by your first two questions --
specifically, the legislature's authority to restrict a
judge's discretion in setting the terms and conditions of
probation. Article IV, section 11A of the Texas Constitu-
tion is cited as the source of the judiciary's power to
determine and set probation conditions. Additionally, the
expressed purpose of article 42.12 of the Code of Criminal
Procedure is "to place wholly within the state courts of
appropriate jurisdiction the responsibility for deter-
mining . . . the conditions of probationl' in accordance
with the powers granted to the judicial department by the
constitution. Code Crim. Proc. art. 42.12, §l. It is
firmly established that a trial court in setting condi-
tions of probation is not limited to the conditions
specified in section 6 of article 42.12. Tames v. State,
534 S.W.2d 686 (Tex. Crim. App. 1976). Thus, it is argued
that the legislature may not constitutionally impose
restrictions on a judge's discretion to set the terms and
conditions of probation because it usurps the powers and
functions of the judicial department.
Article IV, section 11A contains the following
language:
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Honorable Chet Brooks - Page 4 (JM-853)
The Courts of the State of Texas having
original jurisdiction of criminal actions
shall have the power, after conviction, to -.
suspend the imposition or execution of
sentence and to place the defendant upon
probation and to reimpose such sentence,
under such conditions as the Leaislature may
prescribe. (Emphasis added.)
The interpretive commentary following section 11A states
that the provision
gives to the courts the clear power to sus-
pend not only the imposition of sentence,
but also the execution of sentence, to place
the defendant on probation, and to reimpose
such sentence, all under conditions D -
scribed bv the leaislature. (BmphaEzs
added.)
The court's power to suspend sentences and place
defendants on probation is not inherent. Lee v. State,
516 S.W.2d 151 (Tex. trim. APP. 1974). Article IV,
section 11A is a limited grant of clemency to the courts
by the people. McNew v. State, 608 S.W.2d 166 (Tex. Crim.
App. 1978); Bx oarte Giles, 502 S.W.2d 774 (Tex. Crim.
App. 1973). Thus, the legislature may, in its wisdom,
circumscribe a judge's power to grant probation in certain
cases without usurping the court's powers and functions.
m, Rivas v. State, 627 S.W.Zd 494 (Tex. App. - San
Antonio 1981, pet. ref'd) (upholding former Code Crim.
Proc. art. 42.12, §3f(a), which prohibited the grant of
probation to defendants adjudged guilty of certain
offenses). The constitutional power vested in the
legislature to enact laws includes the right to define
crimes and the punishment therefor. pendv v. Wilson, 179
S.W.Zd 269 (Tex. 1944); EX narte Granviel, 561 S.W.2d 503
(Tex. Crim. App. 1978). Accordingly, we believe the
legislature may limit the terms and conditions which may
be placed on a court's grant of probation without thereby
usurping the powers and functions of the court.
Your third question is whether a judge may offer a
probationer the choice of donating money to a crime
stoppers organization in lieu of all or part of the
community service required as a condition of probation.
Section 6(e) prohibits a judge from offering such a
choice. Accordingly, your third question is answered in
the negative. 1
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Honorable Chet Brooks - Page 5 0%853)
SUMMARY
Article 42.12, section 6(e) of the Code
of Criminal Procedure (as enacted by Acts
1987, 70th Leg., ch. 939, at 6289) prohibits
the ordering of payments to a local crime
stoppers organization as a condition of
probation. A judge may not offer a proba-
tioner the choice of making a donation to a
local crime stoppers organization in lieu
of all or part of a condition of probation
requiring the probationer to perform com-
munity service.
J w Very truly yo
kr\,
J I-M 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 Rick Gilpin
Assistant Attorney General
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