Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 17,2008
The Honorable Jesusa Sanchez-Vera Opinion No. GA-0593
Jim Wells County Attorney
Post Office Drawer 2080 Re: Court's authority to modify the conditions of
Alice, Texas 78333 probation to allow probationers to pay a fee in lieu
of community service hours not performed
(RQ-0604-GA)
Dear Ms. Sanchez-Vera:
You ask on behalf of the Judge of the 79th Judicial District Court about a court's authority
to modify the conditions of probation to allow a probationer to pay a fee in lieu of community
service hours not performed. 1 The judge of that court informed you that the Jim Wells Community
Supervision and Corrections Department (the "CSCD") had asked him to "allow for the modification
of the conditions of probation to permit certain qualified probationers to pay a set fee per hour
(suggested minimum wage of $5.15) for community service hours not performed."2 The judge
observed that a community service requirement may "create an economic hardship on probationers
that may result in the loss of valued employment," but questioned whether a court has authority to
substitute payment of a fee in lieu of community service. Judge Terrell Letter, supra note 2, at 1-2.
I. Applicable Law
A. General Probation Authority
Courts do not have inherent power to impose probation. See Busby v. State, 984 S.W.2d 627,
628 (Tex. Crim. App. 1998). Rather, judicial authority to grant probation is subject to legislative
regulation. See id. Probation is governed by article 42.12 ofthe Code of Criminal Procedure, which
lSee Letter from Honorable Jesusa Sanchez-Vera, Jim Wells County Attorney, to Honorable Greg Abbott,
Attorney General of Texas, at 1 (July 17, 2007) (on file with the Opinion Committee, also available at http://
www.oag.state.tx.us) [hereinafter Request Letter].
2Letter from Honorable Richard C. Terrell, District Judge, 79th Judicial District Court, to Honorable Jesusa
Sanchez-Vera, Jim Wells County Attorney, at 1 (May 22,2007) (attached to Request Letter) [hereinafter Judge Terrell
Letter].
The Honorable Jesusa Sanchez-Vera - Page 2 (GA-0593)
uses the term "community supervision" to refer to probation in its various forms. See TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 2(2) (Vernon Supp. 2007).3
Courts generally have broad discretion over the conditions of probation. See ide § 1 ("It is
the purpose of this article to place wholly within the state courts the responsibility for determining
... the conditions of' probation). Accordingly, section 11(a) provides that the proper court has
discretion to "impose any reasonable condition that is designed to protect or restore the community,
protect or restore the victim, or punish, rehabilitate, or reform the defendant." Id. § 11(a) (emphasis
added). Section 11(a) lists conditions ofprobation that a court may impose in a particular case. Id.
While the list of conditions is nonexclusive and the court's discretion to impose conditions is
generally broad, some of section 11(a)'s "enumerated conditions actually may be understood as
limitations on the court's authority to impose conditions of those types." Kesaria V. State, 189
S.W.3d 279, 283 (Tex. Crim. App. 2006).
A court's discretion to modify conditions is also generally broad. Ex parte Alakayi, 102
S.W.3d 426, 431 (Tex. App.-Houston [14th·Dist.] 2003, pet. refd). A court "may, at any time,
during the period of [probation] alter or modify the conditions" of probation. TEX. CODE CRIM.
PROC. ANN. art. 42.12, § 11(a) (Vernon Supp. 2007).4 And "after the defendant has satisfactorily
completed one-third ofthe original [probation] period or two years of [probation], whichever is less,
the period of [probation] may be reduced or terminated by the judge." Id.. § 20(a).5
3In Holcomb v. State, the court observed that the interchangeable use ofthe terms "probation" and "community
supervision" is widely accepted. See Holcomb V. State, 146 S.W.3d 723, 733 n.7 (Tex. App.-Austin 2004, no pet.).
The court further explained that community service under article 42.12 includes constitutionally derived probation as
well as deferred adjudication probation. See id at 733 & n.8 (citing TEX. CONST. art. IV, § lIA). See generally 43A
GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 39.01 (2d ed. West
2001).
4The court may grant a probation officer authority to modify conditions of probation "for the limited purpose
of transferring the defendant to different programs within the community supervision continuum of programs and
sanctions." TEX. CODE CRIM. PROC. ANN. art. 42.12, § 10(d) (Vernon Supp. 2007).
SPor defendants initially placed on probation on or after September 1, 2007, the court is required to consider
reducing or terminating the period of probation:
On completion of one-half of the original community supervision period or two
years of community supervision, whichever is more, the judge shall review the
defendant's record and consider whether to reduce or terminate the period of
community supervision, unless the defendant is delinquent in paying required
restitution, fmes, costs, or fees that the defendant has the ability to payor the
defendant has not completed court-ordered counseling or treatment. ... Ifthe judge
determines that the defendant has failed to satisfactorily fulfill the conditions of
community supervision, the judge shall advise the defendant in writing of the
requirements for satisfactorily fulfilling those conditions.
[d. § 20(a); see Act of May 21,2007, 80th Leg., R.S., ch. 1205, § 6, 10,2007 Tex. Gen. Laws 4078,4080-81 (House
Bill 1678 amending section 20(a)).
The Honorable Jesusa Sanchez-Vera - Page 3 (GA-0593)
B. Community Service as a Condition of Probation
Community service is expressly authorized as one ofthe conditions ofprobation that a court
may impose. Id. § 11(a)(10), § 16(a). The main provision concerning community service, section
16(a), was amended by the Eightieth Legislature in 2007 by House Bill 1678 ("House Bill 1678"),
but the amendment preserves the prior law for defendants initially placed on probation prior to
September 1, 2007. 6 For defendants subject to the prior law, section 16(a) makes performance of
community service a mandatory condition of probation unless the court finds and notes in the order
that:
(1) the defendant is physically or mentally incapable of
participating in the project;
(2) participating in the project will work a hardship on the
defendant or the 'defendant's dependents;
(3) the defendant is to be confined in a substance abuse punishment
facility as a condition of community supervision; or
(4) there is other good cause shown.
Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 4.01, sec. 16(a), 1993 Tex. Gen. Laws 3586,
3734-35 (law prior to House Bill 1678's amendment to section 16(a)). The prior law also mandates
the minimum and maximum hours of community service imposed according to the classification of
the offense and other circumstances. Id sec. 16(b).
For defendants placed on probation on or after September 1, 2007, however, section 16(a)
makes community service as a condition of probation largely a discretionary decision of the court,
and eliminates the minimum hours of community service a defendant must perform. 7 TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 16(a) (Vernon Supp. 2007) (as amended by House Bill 1678). In
another bill, the Eightieth Legislature amended article 42.12, section 16 to authorize ajudge to order
6See Act ofMay 21,2007, 80th Leg., R.S., ch. 1205, §§ 5,10,2007 Tex. Gen. Laws 4078, 4079,4081 (House
Bill 1678 amending section 16(a)).
7See id. While House Bill 1678 amended section 16(a) of the Code of Criminal Procedure to provide that a
court "may" impose a community service requirement on a probationer instead of "shall," the bill does not address a
number ofstatutes that arguably mandate imposing a community service requirement in specific circumstances. See, e.g.,
TEX. HEALTH & SAFETY CODE ANN. § 161.253(c) (Vernon 2001) (providing that a court "shall require the defendant to
perform eight to 12 hours oftobacco-related community service" in certain circumstances); TEX. Loc. GOV'T CODE ANN.
§ 352.082(d) (Vernon 2005) (requiring community service for offense ofbuming refuse under circumstances described);
TEX. TRANSP. CODE ANN. § 521.350(d) (Vernon 2007) (providing that a defendant whose license has been suspended
for an offense related to racing a motor vehicle on a public highway or street "shall be required by the court in which the
person was convicted to perform at least 10 hours of community service"); see also Kesaria, 189 S.W.3d at 284 (noting
statutes that require a court to impose certain conditions on persons convicted of certain offenses).
The Honorable Jesusa Sanchez-Vera - Page 4 (GA-0593)
a defendant to make a specified donation to a local food bank or food pantry in lieu of community
service, applicable without regard to when a defendant was initially placed on probation. Id. § 16(f). 8
C. Monetary Payment as a Condition of Probation
Section 11 (a)' s nonexclusive list ofbasic conditions ofprobation includes conditions which,
ifimposed, require a probationer to make specified payments, such as the payment offines and court
costs, reimbursement of appointed counsel costs, or the payment to a crime stoppers organization.
See, e.g., id. § II(a)(8), (11), (21). But section II(b) limits a court's discretion to order a payment
as a condition of community supervision:
A judge may not order a defendant to make any payments as a term
or condition of community supervision, except for fines, court costs,
restitution to the victim, and other conditions related personally to the
rehabilitation of the defendant or otherwise expressly authorized by
law. The court shall consider the ability of the defendant to make
payments in ordering the defendant to make payments under this
article.
Id. § 11(b).
II. Analysis
As noted above, section 16(f) of article 42.12 authorizes a judge to order as a condition of
probation that a defendant make a specified donation to a local food bank or food pantry in lieu of
community service. Id. § 16(f). No other statute expressly authorizes a court to substitute a
monetary payment requirement in lieu ofcommunity service, such as a requirement ofa fee payment
for CSCD purposes. But in light of the court's broad authority to modify conditions of probation,
we consider separately (1) whether a court may modify the conditions of probation to eliminate a
community service requirement, and (2) whether a court may modify the conditions of probation to
require the defendant to make a payment.
A. Authority to EI.iminate Community Service from the Conditions of Probation
Asa result of the 2007 amendment to section 16(a), a court's discretion to modify the
conditions of probation to eliminate community service depends in part on when the defendant was
initially placed on probation. For a defendant placed on probation prior to September 1, 2007, the
performance of community service for a minimum number of hours is generally a mandatory
condition ofprobation. 9 But a court has authority to modify conditions ofprobation at any time. Id.
8Act ofMay 28,2007, 80th Leg., R.S., ch. 1308, § 8,2007 Tex. Gen. Laws 4395, 4398 (Senate Bi11909 adding
section 16(f)).
9See Act of May 29,1993, 73d Leg., R.S., ch. 900, § 4.01, sec. 16(a), 1993 Tex. Gen. Laws 3586,3734-35
(prior version of section 16(a)).
The Honorable Jesusa Sanchez-Vera - Page 5 (GA-0593)
§ 1O(a). Ifa court initially orders a defendant to participate in a community service program but later
determines that the defendant qualifies for one of the exceptions to mandatory probation, such as
incapacity, hardship, or other "good cause," a court may exercise its discretion to eliminate a
community service requirement from the conditions ofprobation. See id. §§ 10(a), 16(a). Ifa court
originally ordered a defendant to perform hours of community service in excess of the minimum
required by statute, a court may later exercise its discretion to modify conditions of probation and
relieve the defendant ofthe obligation to perform hours above the minimum. See id. §§ 10(a), 16(b).
And under appropriate circumstances, a court may reduce the period of probation or terminate it
altogether. See id. § 20(a). But that statute does not authorize a court to selectively eliminate the
mandatory minimum hours of community service specified by statute.
For a defendant placed on probation on or after September 1, 2007, however, a court has
discretion generally to decide whether to impose community service in the initial conditions of
probation. Id. § 16(a). For defendants subject to the current version of section 16(a), a court
generally has discretion to modify the conditions of probation to eliminate a community service
requirement. See id. §§ 11(a), 16(a). Thus, whether a court's authority to modify the conditions of
probation under section 11(a) would allow a court to eliminate a community service requirement
depends on the particular facts and circumstances and the version of section 16(a) applicable to the
defendant.
B. Authority to Impose Payment
Next, we consider whether a court may modify the conditions of probation to include a
requirement that the defendant m'ake a monetary payment. The court's authority to modify
conditions under section 11(a) is subj,ect to section 11(b), which limits the kinds of monetary
payment requirements that a court may include in the conditions of probation. See id. § 11(a)-(b);
see also Busby, 984 S.W.2d at 629-30 (holding that "[s]ubsection 11(b) acts as a limitation on the
conditions that are authorized by subsection 11(a)"); Martin v. State, 874 S.W.2d 674, 677 (Tex.
Crim. App. 1994) (observing that section 11(a) contains a broad grant of,authority but section 11(b)
"imposes limitations on the types of payments that can be ordered as a condition of probation").
Although you have not specified the nature of the "fee payment" you envision, under section 11 (b)
a court may not order payment as a condition of probation unless it constitutes a fine, court costs,
restitution to the victim, a condition related personally to the rehabilitation of the defendant, or a
condition otherwise expressly authorized by law. See Request Letter, supra note 1, at 1; see also
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(b) (Vernon Supp. 2007). Thus, we will make some
general observations about the kinds of payments that section 11(b) allows.
Section 22 specifically addresses a court's authority to modify conditions of probation by
increasing the fine. After a hearing under section 21, a court may impose as an additional condition
ofprobation an increase in the defendant's fine, up to a total fine that does not exceed the maximum
fine for the offense for which the defendant was sentenced. See TEX. CODE CRIM. PROC. ANN. art.
The Honorable Jesusa Sanchez-Vera - Page 6 (GA-0593)
42.12, § 22(a)(3), (d) (Vernon Supp. 2007).10 The increase is to be used "for the same purposes for
which state aid may be used under Chapter 76, Government Code," which governs CSCDs generally.
See id. .§ 22(d); see also TEX. GOV'T CODE ANN. §§ 76.001-.018 (Vernon 2005 & Supp. 2006)
(chapter 76).
A condition requiring a defendant to pay "court costs" under section 11 (b) is limited to costs
expressly authorized by law. See Busby v. State, 951 S.W.2d 928, 930 (Tex. App.-Austin 1997)
(holding that "the matter of costs in criminal cases is purely statutory" and that a district j udge "may
not impose a cost for a service for which a cost is not expressly provided by law"), aff'd, 984 S.W.2d
627, 630 (Tex. Crim. App. 1998). And the authority to require payment as "restitution to the victim"
is limited to the stated purpose. See Uresti v. State, 98 S.W.3d 321, 337 (Tex. App.-Houston [1st
Dist.] 2003, no pet.) (holding that Houston police department was not a "victim" authorized to
receive restitution of its investigation expenses).
No court has precisely defined what payments a defendant may be required to pay as
"conditions related personally to the rehabilitation of the defendant" under section II(b). Several
ofthe conditions authorized in section 11 would seem to qualify. See, e.g., TEX. CODECRIM. PROC.
ANN. art. 42.12, §§ II(a)(15) (Vernon Supp. 2007) (condition requiring a defendant to participate
in substance abuse counseling sessions or treatment services), 11 (i) (condition requiring certain sex
offenders to submit to and pay for treatment, specialized supervision, or rehabilitation), 13(d)
(condition requiring defendant convicted of DWI offense to participate and pay for a prescribed
course of conduct necessary for the rehabilitation of the defendant's drug or alcohol dependence
condition). A condition requiring a payment for general purposes of the county or a CSCD likely
would not be sustained as a p-ayment "related personally to the rehabilitation ofthe defendant" under
section II(b). Id. § II(b); cf Keith v. State, 916 S.W.2d 602, 608 (Tex. App.-Amarillo 1996, no
pet.) (holding that requirement that defendant convicted of indecency with child pay $1,000 to
Abused Children's Counseling Fund was ~ot authorized under section II(b)).
lOSection 21 provides for a hearing on warrant for violation of any of the conditions of probation. See TEX.
CODE CRIM. PROC. ANN. art. 42.12, § 21 (Vernon Supp. 2007).
The Honorable Jesusa Sanchez-Vera - Page 7 (GA-0593)
SUMMARY
A court does not have general authority to modify the
conditions of probation to require the probationer to pay a fee to be
used for community supervision and correction department purposes
in lieu of performing community services.
Under appropriate circumstances, a court may modify
conditions of probation to eliminate a condition requiring the
performance of community services. A court may modify conditions
of probation to require a probationer to make a specified donation to
a local food bank or food pantry in lieu of community service. And
a court may modify the conditions of probation to require a payment
only if the payment is expressly authorized by law or constitutes a
fine, court costs, restitution to the victim, or a condition related
personally to the rehabilitation of the defendant.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee