Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MATTOX April 9, 1985
Attorney General
Supreme Court BulldIng Bonorable Richard W. Carter Opinion No. JM-307
P. 0. BOX 1254a chairman
Austin. TX. 7571% 2548 Crime Stoppers Adviwry Council Re: Whether a judge may require
512l4752501 P. 0. Box 231 a probationer to make a one-
Telex eiw87ci387
Telecopier 512147f!-O2+6
Arlington, Texas i'6010 time contribution to a crime
stoppers program as a condition
Bonorable Grant Jonm of probation
714 Jackson. Suite 700 District Attorney
Dallas. TX. 752024505
Nueces County Courthcase 8205
214n42-8944
Corpus Christi, Texzw 78401
4824 Alberta Ave., Suite 160 Gentlemen:
El Paso. TX. 799052793
915/533alS4 You inquire about the power of a judge to require a probationer,
as a condition of pmbation. to make a contribution to a private crime
1001 Texas. Suite 700
stoppers organizatim. Judge Carter asks
Houston, TX. 770023111
7W223-5556 whether 0:: not a judge can require a probationer
to make JL one-time contribution of money to a
c&e stclppers program, whether the judge be
SOSBroadway, Suite 312
Lubbock. TX. 79401-3479
presiding over a municipal, justice, county court,
SOW747-5238 county court at law. or a state district court.
Mr. Jones asks the following two questions:
4309 N. Tenth. Suite 8
McAllen, TX. 78501-1885
.,
512f882-4547 (1) l4z.ya district judge, under the Texas Code
of Criminal Procedure. article 42.12, section
6(a), reqMre a defendant as a condition of felony
200 MaIn Plaza. Salt0 400 probation 1:omake a contribution to an organiza-
San Antonio. TX. 7S205-2797
tion of the kind described as a 'crime stoppers
51212254191
organization' in article 2372bb, sections 1 and 2.
V.T.C.S.?
A” Equal Opportunity/
AffIrmaWe Actlon Employer (2) Mz.y a~district judge, under Texas Code of
Criminal :?:rocedure,article 42.12. section 6(a).
require B defendant as a condition of felony
probation to reimburse a crime stoppers organlza-
tion for funds expended by the organization in
connection with defendant's case?
A "crime stoppers ol,ganization"is
p. 1393
Ronorable Richard W. Carter
Honorable Grant Jones
Page 2 (JR-307)
a private, nonprofit organization that is operated
on a local or a statewide level, that accepts and
expends donations for rewards to persons who
report to the organ::sationinformation concerning
criminal activity, and that forwards the
information to the appropriate law enforcement
agency.
V.T.C.S. art. 2372bb. Pl.
The duties of the Crime Stoppers Advisory Council are stated in
article 4413(50), section 5, V.T.C.S. Among other duties, it is to
assist in the creation of local crime stoppers programs and to
encourage persons to come :iorward with information about criminal
activity. It has received numerous inquiries from trial court judges
about their authority to impose the probation condition in question.
We will deal with the Council's question and the district
attorney's first question together.
Article IV, section 11A of the Texas Constitution authorizes the
courts with original jurisdi:tion of criminal actions to suspend the
sentence after conviction and. to place the defendant on probation,
under such conditions as the. court may prescribe. Article 42.12 of
the Code of Criminal Procedurregoverns probation in felony cases, of
which the district courts have original jurisdiction. Tex. Const.
art. V, 18. Article 42.13 of the Code of Criminal Procedure governs
probation in misdemeanor case:s. The county courts have jurisdiction
of misdemeanors, Tex. Const. art. V, 558. 16, as have those of the
statutory county courts which have been given criminal jurisdiction.
=V.T.C.S. art. 1970-l --
et. 6%. Justice courts and municipal courts
have jurisdiction of Class C misdemeanors. Tex. Const. art. V, $19;
V.T.C.S. art. 1195. Article ,45.54 of the Code of Criminal Procedure
authorizes a justice of the peace and a municipal court judge to
suspend a fine and defer final disposition in a misdemeanor punishable
by fine only.
The purpose clause of article 42.12 of the Code of Criminal
Procedure states as follows:
It is the purpose of this Article to place wholly
within the Stats courts of appropriate
jurisdiction the :cesponsibillty for determining
when the imposition of sentence in certain cases
shall be suspended, the conditions of probation,
and the supervision of probationers. . . .
Code Crim. Proc. art. 42.12. Il. The judge may place a defendant on
probation when "the ends of justi.ce and the best interests of the
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Honorable Richard W. Carter
Honorable Grant Jones
Page 3 (JM-307)
public as well as the defendant will be subserved. . . ." Id. 53.
The defendant must have been convicted or have entered a guiltyplea,
and the maximum punishment far the offense way not exceed ten years.
Id. 53; see also & 83f (probation not available to defendant
adjudged guilty of capital murder or other offenses set out in art.
42.12, 53f). The court is to determine the terms and conditions of
probation, which "may include, but shall not be limited to. the
conditions that the probationor shall:
a. Commit no ofEense against the laws of this
State or of any cbther State or of the United
States;
b. Avoid injurious or vicious habits;
C. Avoid person:3or places of disreputable or
harmful character;
d. Report to the probation officer as directed
by the judge or probation officer and obey all
rules and regulations of the probation department;
e. Permit the Pmxobation officer to visit him
at his home or elsewhere;
f. Work faithfully at suitable employment as
far as possible;
g. Remain within a specified place;
h. Pay his fine, if one be assessed, and all
court costs whether a fine be assessed or not, in
one .or several sums, and wake restitution or
reparation in any sum that the court shall
determine;
I. Support his dependents;
j. Participate, for a time specified by the
court and subject to the same conditions imposed
011 community-service probationers by Sections
lOA( cd). (g). and (h) of this article, in any
community-based program, including a coaaaunity-
service work program designated by the court;
k. Reimburse ,:he county in which the
prosecution was inc;tituted for compensation paid
to appointed counsel for defending him in the
case, if counsel '188 appointed, or if he was
p. 1395
Ronorable Richard W. Carter
Ronorable Grant Jones
Page 4 (JR-307)
represented by a county-paid public defender, in
an amount that would have been paid to an
appointed attorney had the county not had a public
defender;
1. Remain under custodial supervision in a
community-based fe,cility. obey all rules and
regulations of such facility, and pay a percentage
of his income to the facility for room and board;
m. Pay a perc,cntage of his income to his
dependents for their support while under custodial
suspension in a community-based facility; and
n. Pay a percentage of his income to the
victim of the offea:se,if any, to compensate the
victim for any property damage or medical expenses
sustained by the vktim as a direct result of the
commission of the offense.
Code Grim. Proc. art. 42.12, )6(a).
When the jury assesses punishment following a conviction, the
jury may recommend probation, and the court shall grant probation
"[IIn all eligible cases." Code Grim. Proc. art. 42.12, 53a. Under
former law, when probation was granted by the jury, the court could
impose only those statutory conditions of probation found in section 6
of article 42.12, Code of C:r::minal Procedure. Tamez v. State, 534
S.W.Zd 686, (Tex. Crlm. App. 1976); O'Neal v. State, 421 S.W.2d 391
(Tex. Grim. App. 1967); Attorney General Opinion R-234 (1974). A 1981
amendment to article 42.12 dc:Letedthe limiting language from section
3a. thereby authorizing the court to impose special probation
conditions where the jury grsnted probation. Acts 1981, 67th Leg.,
chi 639 at 2466 (title of House Bill No. 2107).
It is well-established that a trial court in setting probation
conditions is not limited to the conditions found in section 6 of
article 42.12 of the Code II!!Criminal Procedure. Tames v. State,
supra; Peach v. State, 498 S.W.2d 192 (Tex. Grim. App. 1973); Macias
v. State, 649 S.W.2d 150 (kc. App. - El Paso 1983, no pet.). The
judge now has the same au:hority to set probation conditions in
jury-granted probation as he has long had in judge-granted probation.
Although the court has wide discretion in establishing the terms of
probation, they must have a reasonable relationship to the treatment
of the accused and the prot.ection of the public. Tames v. State,
m Hacias v. State, ~:a; see Code Grim. Proc. art. 42.12, 53
(probation may be granted whe;; best Interests of public and defendant
will be subserved).
p. 1396
Honorable Richard W. Carter
Honorable Grant Jones
Page 5 (.JM-307)
We have found no Texa!; cases on a probation condition which
requires the probationer to donate money to a private charity. The
federal courts have upheld under the federal probation statute. 18
U.S.C. 03651. the condition that the probationer donate money or money
and uncompensated services to charity. See United States v. William
Anderson Co., 698 F.2d 911 (Eth Cir. 1982)pholding requirement that
corporation make payment to charity for which its officers were
performing cormsunity servkes) ; United States v. Mutsubishi
International Corp.. 677 F.2d 785 (9th Cir. 1982) (upholding
requirement that corporation contribute money and services to program
for ex-offenders); United states v. Wright Contracting Co., 563
F. Supp. 213 (D. Hd. 1983) (upholding requirement that corporation
contribute to charitable orgrnization assisting disadvantaged): United
States v. Danilow Pastry Cc-, 563 F. Supp. 1159 (S.D.N.Y. 1983)
(upholding requirement that~ bakery corporation donate baked goods to
organizations assisting the needy). But see United States v. Preston
Corp., 695 F.2d 1236 (10th Cir. 1982) (federal courts may not direct
uavment of funds as condition of nrobation beyond express
authorizations in 18 U.S.C. 13651); United States v. Clovis Retail
Liquor Dealers Trade Ass'R,. 540 F.2d 1389 (10th Cir. 1976)
(invalidating probation condL:ion requiring probationer to contribute
money to county council'on alcoholism). See generally, Annot. A.L.R.
66, Fed. 825 (1984); N. Cohlrn & J. Gobert, The Law of Probation and
Parole (1983). 506.28, 6.36. The probationers in the cited federal
cases are corporations ore other business associations. The court in
United States v. Mitsubishi 'InternationalCorp., w, stated that
corporate defendants present-a special problem because they cannot be
incarcerated; thus the trial i,udgedesigned unique terms of-probation.
We believe the trial court, in exercising its wide discretion to
establish probation conditit~n,s,may require a probationer to donate
money to a particular private charity where that condition has a
reasonable relationship to his treatment and rehabilitation and to the
protection of the public. 'Zrether it would be reasonable to impose
such a condition on a particular probationer would require an
evaluation of the facts surrounding his illegal activity and his
probation. See also Code Grim. Proc. 42.12, 58(c); Attorney General
Opfnions JM-lo); H-234 (1974) (financial inability as a defense
to revocation for violating %rtain probation conditions).
Article 42.12 does not. authorize a judge to create a funding
source for a private charity by requiring every probationer to donate
a fixed sum to it. ---
Cf. Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946)
(statutes are strictly c:cnstrued against allowing a fee by
implication). We emphasize that a condition of probation must be
reasonably related to the ir``.ividual
probationer's rehabilitation and
to protecting the public.
p. 1397
Honorable Richard W. Carter
Honorable Grant Jones
Page 6 (``-307)
In addition, other prul:lsionsof law control a judge's exercise
of discretion. See. e.g.. Penal Code ch. 39 (abuse of office). The
Code of Judicial Conduct expressly provides that a judge should not
allow his "social, or othe:: relationships to influence his judicial
conduct or judgment. He shculd not lend the prestige of his office to
advance the private interests of others. . . .l( Code of Judicial
Conduct Canon 2B. Nor nay probation conditions violate the
probationer's rights under the federal and state constitutions. See
Ovens V. Kelley, 681 F.Zd 1362 (11th Cir. 1982) (probation condition
requiring probationer to attend course advocating adoption of religion
violates First Amendment c#f United States Constitutitin); Attorney
General Opinion JM-1 (1983:. See also Pnlliam V. Allen; U.S.
-, 104 S. Ct. 1970 (1984) (judge may be required to pay attorneys'
fees in section 1983 suit).
Article 42.13 of the C:ode of Criminal Procedure'governs 'mis-
demeanor probation. Its stated purposes are virtually identical to
those of article 42.12. ---See Code Grim. Proc..42.13, §§I, 3. The
court is to determine the ':ermsand conditions of probation and may
impose reasonable condition3 In addition to the statutory conditions
set out in section 6. Id. 06(a); Fogle V. State, 667 S.W.2a 296 (Tex.
APP. - Dallas 1984, no=.'); Attorney General Opinions H-234 (1974);
M-985 (1971). The provisiors of article 42.13 on probation conditions
are very similar to those of article 42.12. The courts and prior
opinions of this office have construed these provision+ consistently
with the provisions on the conditions of felony probation. Fogel v.
State, supra; Attorney Gewral Opinion M-985 (1971). We believe a
trial judge in determining the conditions of misdemeanor probation may
require a probationer to dor,atemoney to a private charity, if that is
a reasonable condition for the individual probationer.
Article 45.54 of the Code of Criminal Procedure governs the
suspension of the fine and deferral of final disposition in
misdemeanors punishable by fine only. The provision reads as follows:
(1) Upon convlction of the defendant of a
misdemeanor punishe.bleby fine only. other than a
misdemeanor described by Section 143A. Uniform Act
Regulating Traffi'c on Highways, as amended
(Article 6701d. lrernon's Texas Civil Statutes),
the justice may sc,spendthe imposltlon of the fine
and defer final disposition of the case for a
period not to excc,ed180 days.
(2) During sa:Ld deferral period. the justice
may require the dt,fendantto:
(a) post a bond in the amount of the fine
assessed to secure-payment of the fine;
p. 1398
Honorable Richard W. Carter
Honorable Grant Jones
Page 7 (JM-307)
(b) pay restj,tution to the victim of the
offense in an alE,unt not to exceed the fine
assessed;
(4 submit to professional counseling: and
63) comply with **y other reasonable
condition, other than payment of all or part of
the fine assessed.
(3) At the conclusion of the deferral period,
if the defendant .presents satisfactory evidence
that he has complied with the requirements
imposed, the justice may dismiss the complaint.
Otherwise, the ,justice may reduce the fine
assessed or may tten impose the fine assessed. If
the complaint is akkmissed, a special expense not
to exceed $50 may be imposed.
(4) Records. relating to a complaint dismissed
as provided by this article may not be expunged
under Article 55.01 of this code. (Emphasis
added).
This statute was enacted in 1981. Acts 1981, 67th Leg. ch. 318 at
894. It applies to municipal judges as well as to justices of the
peace. See Bill Analysis far Senate Bill No. 914, 67th Leg. (1981);
see ganeay Code Grim. Prcc. ch. 45.
Article 45.54, in contknst to the felony and misdemeanor proba-
tion statutes, includes no purpose clause or other provision stating
the goals of Its procedures for suspending sentences. It does not
even use the term "urobati,m." although it has been described as a
probation statute. -See B&r and BGbany. Probation for Class C
Misdemeanors: To Fineor NC; to Fine is Now the Question, 22 So. Tex.
L.J. 249 (1981). Subsection (2)(d) of article 45.54 authorizes the
justice to require the defendant to "comply with any other reasonable
condition," other than payment of any part of the fine. This language
certainly empowers him to impose non-statutory conditions on the
defendant during the deferral period, but it ddes not. in our opinion.
authorize him to require defendant to contribute money to a charity.
Subsections (2)(a) and (2)(51) expressly permit conditions requiring
payments by the defendant, but limit the amounts by the fine assessed.
Subsection (2)(d) expressly forbids a condition requiring payment of
part or all of the fine. Where the legislature has authorized the
justice to require payments by the defendant, it has carefully limited
the amounts. If the 1egis:laturehad intended "any other reasonable
condition" to include a charitable contribution, we believe it would
have imposed the same monetary limit. When a defendant violates the
p. 1399
.
Honorable Richard W. Carter
Honorable Grant Jones
Page 8 (JM-307)
terms of a sentence suspen,ledunder article 45.54, he would have to
pay the fine. There would be l.ittle incentive to comply with
conditions that required pn)ments in excess of the fine. See Baker
and Bubany, supra. at 257. 'Inour opinion, article 45.54 ofthe Code
of Criminal Procedure does n3t authorize a municipal judge or justice
of the peace to require the defendant to make a contribution to s
crime stoppers program or any other private charity.
We turn to Mr. Jonets" second question. He asks whether a
district judge may require 8s a condition of felony probation that a
defendant reimburse a crime stoppers organization for funds it spent
in connection with his case. We believe our discussion of article
42.12 of the Code of Crimin+l Procedure supports the conclusion that
the judge may require such reimbursement, where that is a reasonable
condition of probation. See Flares v. State, 513 S.W.2d 66 (Tex.
Crim. App. 1974) (probatioz!r:required to pay restitution to insurance
company to reimburse it for medical expenses of complaining witness);
People v. Martin, 442 N.E.2,1562 (Ill. App. 1982) (restitution of $35
to repay state for money used,to buy drugs from offender).
SUMMARY
Articles 43.1:: and 42.13 of the Code of
Criminal Procedure!authorize a judge to require a
probationer, as s condition of probation, to
donate money to a private charity, where such
condition has a reasonable relationship to the
treatment of the a,ccusedand the protection of the
public. Article 45.54 of the Code of Criminal
Procedure does 'rot authorize a judge of a
municipal court or a justice of the peace to
impose such a prcbation condition. Acting under
article 42.12 of the Code of Criminal Procedure, a
judge may require as a condition of probation that
a probationer repay * private crime stoppers
program for amoun':s spent on his case where this
Is a reasonable condition of probation.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First AssIstant Attorney General
p. 1400
.
Eonorable Richard W. Carter
Honorable Grant Jones
Page 9 (JM-307)
DAVID R. RICHARDS
Executive Assistant Attorney General
RICR GILPIN
Chairman, Opinion Ccm&ttee
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Woellinger
Jennifer Riggs
Nancy Sutton
p. 1401