DeGay v. State

DIES, Chief Justice,

dissenting.

With respect, I dissent. There is no question, as the majority opinion states, that the Adult Protection Law, TEX. CODE CRIM.PROC.ANN. art. 42.12, sec. 6(a) provides that a condition of probation may include,

“(12) Remain under custodial supervision in a community-based facility, obey all rules and regulations of such facility, and pay a percentage of his income to the facility for room and board;”

And, in Sec. 6(b),

“If the court grants probation to a defendant and requires the defendant to serve a probationary term in a restitution center, the court shall require as a condition of probation that the defendant secure employment and obey all rules and regulations of the center.” (emphasis added)

But, what did the Legislature mean by “all rules and regulations”, etc.? Does that include those which have no relation to rehabilitation, even unreasonable and silly rules? I think not.

A present member of the Texas Supreme Court wrote in Johnson v. State, 672 S.W.2d 621, 623 (Tex.App. — Corpus Christi 1984, no pet.):

“However, the probationary conditions must be reasonable, that is to say that they must have a reasonable relationship to the treatment of the accused and the protection of the public, [emphasis ours] See Tamez v. State, 534 S.W.2d 686, 691 (Tex.Crim.App.1976). In this connection, ABA Standards, Probation, sec. 3.2(b) (1970) provides:

“Conditions imposed by the court should be designed to assist the probationer in leading a law-abiding life. They should be reasonably related to his rehabilitation and not unduly restrictive of his liberty or incompatible with his freedom or religion. They should not be so vague or ambiguous as to give no real guidance, (emphasis added)”

Remember, at the time this man’s probation was revoked he was paying to the Restitution Center over $200 per month, employed, and supporting his family. What on earth was to be accomplished by requiring him to turn over his entire paycheck to a bureaucrat, and why should he be incarcerated six years for failing to do so. Even if he had failed to make the payments decreed by the court, which he never did, the State would have to show such failure was willful. See Aranda v. State, 684 S.W.2d 794, 799 (Tex.App. — Fort Worth 1985, pet. ref’d).

This man was obeying to the letter the court’s order requiring payment to the Restitution Center. The record is unclear why the latter decided later on that he must turn over his entire check to it. If there is a good reason for doing so, the court could modify its order rather than send him to incarceration. Flournoy v. State, 589 S.W.2d 705 (Tex.Crim.App.1979). Personally, I can think of no reason why he should have to turn over his entire check to the Restitution Center as long as he was making his payments as the court ordered. Appellant is entitled to due process of law. Caddell v. State, 605 S.W.2d 275, 277 (Tex.Crim.App.1980). I would hold the trial court abused its discretion.