                                The Attorney           General of Texas
                                                  May 18, 1982

MARK WHITE
Attorney General

                               Mr. Ruben Torres, Chairman             Opinion No. m-472
Supreme Court Building         Texas Board of Pardons and Paroles
P. 0. Box 12543                P. 0. Box 13401, Capitol Station       lk: Whether the Texas Board
Austin. TX. 78711. 2543
512/475G?501
                               Austin, Texas   78711                  of Pardons and Paroles has
Telex 9101874-1367                                                    authority to collect or assist
TelecOpiM5121475aa6                                                   in the collection of fines,
                                                                      court costs and restitution
                                                                      or reparation to victims from
1607 Malt7 St.. suite 1400
Dallas. TX. 752014709
                                                                      person eligible for parole or
214i742.SS44                                                          mandatory supervision

                               Dear Mr. Torres:
4824 Alberta Ave.. Suite 160
El Paso, TX. 7S905.2793
8151~3484
                                    You ask several questions concerning the authority of the Texas
                               Board of Pardons and Paroles to collect or assist in the collection of
                               fines, court costs and restitution or reparation to the victim, from a
1220 Dallas Ave.. Suite 202    person eligible for release from the Department of Corrections on
Houslon. TX. 770028986
                               parole or mandatory supervision.
713faoa66

                                    You first ask whether the board is authorized by section 15(g) of
808 Broadway. Suite 312        article 42.12 of the Code of Criminal Procedure to collect unpaid
Lubbock, TX. 79401.3479        fines and court costs adjudged against the defendant by the convicting
SoEn47.5238                    court. In particular, you refer to fines adjudged pursuant to chapter
                               12 of the Texas Penal Code, articles 1018, 1061-1082, and 1083,
4309 N. Tenth. Suite S         section 4 of the Code of Criminal Procedure, article 4413(29aa),
McAllan. TX. 78501-1685        section 9B(b). V.T.C.S., relating to the Commission on Law Enforcement
51216824547                    Officer Standards and Education, article 8309-l. section 14(b).
                               V.T.C.S., the Crime Victims Compensation Act.
200 Main Plaza, Suite 400
San Antonio, TX. 75205-2797         In our opinion, the board lacks authority to collect fines or
51212254191                    court costs. It has no express statutory authority to exercise such
                               powers. Section 15(g) of article 42.12 of the Code of Criminal
                               Procedure authorizes the board to adopt "reasonable rules not
An Equal Opportunity/
Affirmative Action Employer    inconsistent with law as it may deem proper or necessary with respect
                               to...~conditions to be imposed upon parolees and persons released to
                               mandatory supervision." (Emphasis added). However, article 1004 of
                               the Code of Criminal Procedure expressly charges district and county
                               attorneys, clerks of the district and county courts, sheriffs,
                               constables, and justices of the peace with collecting money in the
                               name of the state. See Code Grim. Proc. art. 1001. Funds subject to
                               article 1004 include71    fines, forfeitures, judgments and jury fees




                                                            p. 1650
Mr. Ruben Torres      - Page 2   (MW-472)




collected under any provision of the Code of Criminal Procedure.
Article 4413(29aa). section 9B(c). V.T.C.S., and article 8309-1,
section 14(c), V.T.C.S., provide that the costs due the state under
those acts shall be collected along with and in the same manner as
other fines or costs are collected in the case. See also Code Grim.
Proc. art. 1083, 605. 11.

     Articles 1001 through 1006 of the Code of Criminal Procedure
expressly charge specific officers with the duty of collecting fines
and court costs, and also impose detailed reporting requirements on
these persons. Any regulation purporting to authorize the board to
collect fines and court costs would be inconsistent with these Code of
Criminal Procedure provisions and therefore would be invalid. -See
generally Attorney General Opinion H-1161 (1978).

     You next ask whether the Board of Pardons and Paroles has
authority to require, as a condition of parole or mandatory
5upervi5ion, that.the release.5pay outstanding amounts of fines and
court costs to the district clerk or other appropriate official or
agency.                                  7'. ._s 2.

     In our opinion, the board has authority to require that the
release= pay such amounts. Section 2(c) of article~42.12 of the Code
of Criminal Procedure defines parole as the release of a prisoner from
imprisonment for rehabilitation outside the prison walls under such
conditions for disciplinary supervision as the board may determine.
Section 20 gives the board the power and duty to make rules for the
conduct, of persons placed in parole and released to mandatory
supervision. Section 15(g) of article 42.12 provides as follows:

             The Board may adopt such other reasonable rules
          not inconsistent with law as it may deem proper or
          necessary with respect to... conditions to be
          imposed upon parolees and persons released to
          mandatory' supervision.... The conditions shall
          include the making of restitution or reparation to
          the victim of the prisoner's crime, in an amount
          not greater than such restitution or reparation as
          established by the court and entered in the
          sentence of the court which sentenced the prisoner
          to his term of imprisonment. Acceptance, signing,
          and execution of the contract by the inmate to .be
          paroled shall be a precondition to release on
          parole.

See also Code Grim. Proc. art. 42.12, 512 (board may determine degree
of supervision a releasee should receive). The board has adopted a
rule stating standard conditions of parole, such as reporting at




                                 p. 1651
I+r.Ruben Torres      - Page 3   (MW-472)




intervals to the parole officer and working at a lawful occupation.
37 T.A.C. 5145.21 (1981).

     Prior to 1977, section 15(g) did not refer to any specific
conditions of parole.     At that time, an amendment specifically
authorized the board to include as conditions of parole the making of
reparation or restitution to the victim of the crime. Acts 1977, 65th
Leg., ch. 347. §l, at 928. However, prior to the 1977 amendment, the
board was empowered to require the inmate to accept all standard and
customized conditions of parole. Clifford v. Beto, 464 F.2d 1191 (5th
Cir. 1972). Typical conditions have included the requirement that a
parolee secure his parole officer's permission before changing his
place of residence or employment, leaving the county or purchasing or
operating an automobile. Id. at 1195, n. 1; 37 T.A.C. 95145.21. 149.1
(1981). The board has alsoprovided for the addition of "customized"
conditions for the release of an inmate in some cases. Clifford v.
Beto. supra, at 1195. n. 1; 37 T.A.C. 20145.21, 149.1 (1981).

      Article 42.12 states that the terms of adult probation may
 include, but are not limited to, the payment of a fine, court costs,
 and restitution or reparation, as well 55 other specified conditions.
 Sec. 6. This statute has provided for these conditions since its
 enactment in 1965. Acts 1965, 59th Leg., ch. 722, at 491. It seems
 reasonable that an inmate paroled from the Department of Corrections
 should be subject to conditions at least 55 stringent as those imposed
 on an individual serving a probated sentence. See Code Grim. Proc.
 art. 42.12. $13, 3a (probation available only whe~maximum   punishment
 assessed does not exceed ten years). In our opinion, board rules
'authorieing a condition that a releasee pay his fine and court costs
 would be "reasonable rules... with respect to... conditions" of
 probation or mandatory supervision. Sec. 15(g). Of course, the board
 may not require terms of payment that are at variance with those in
 the judgment. See Code Grim. Proc. art. 42.15. Even if an individual
 has not paid hisfine and court costs by the time he is discharged
 from parole or mandatory supervision, those obligations will remain in
 effect until discharged pursuant to articles 42.15, 42:16 or 43.01 of
 the Code of Criminal Procedure.

     You next ask whether, in cases where payment of outstanding
fines, court costs, restitution or reparation would impose an
unreasonable burden on a releasee, the board must order payment of an
amount less than the total amount due. You are concerned that the
individual's earning ability would not enable him to complete payment
during the period of parole or mandatory supervision.

     The board is not authorized to recommend as a condition of
release that a releasee make scheduled payments which the board has
itself determined would be "an unreasonable burden" on the releasee.




                                 p. 1652
Mr. kuhen Torres      - Page 4    (MW-472)




Article 42.12, section 15(f) of the Code of Criminal Procedure states
in pertinent part:

          A parole shall be ordered only for the best
          interest of society.... A prisoner shall be
          placed on parole only when arrangements have been
          made for his employment or for his maintenance and
          care, and when the Board believes that he, is able
          and willing to fulfill the obligations of a
          law-abiding citizen.

If the board does not believe that the potential releasee is able to
fulfill the conditions of release, parole under such conditions would
not be authorized under this section.

     Section 15(g) of article 42.12 provides that the conditions of
parole "shall include the making ~of restitution or reparation to the
victim of the prisoner's crime, in an amount not greater than such
restitution or reparation as established by the court and entered in
the sentence." (Emphasis added). The boe&:is required to include
the making of some restitution or reparation ~to the victims of the
prisoner'5 crime. However, the legislature's use of .the words "not
greater than" indicates that the legislature intended that the board
could still recommend that an amount less than the amount established
by the court be repaid over the period of the releasee's supervision
as a condition of parole.

     If the board chooses to impose conditions relating to the payment
of fines and court costs, it may require that only partial payment be
made during the term of parole or mandatory supervision. However, in
cases where the Board of Pardons and Paroles chooses not to'require
full payment of fines and court costs before the term of parole or
supervision ends, those obligations of course remain in effect until
discharged as permitted by the Code of Criminal Procedure.

     You ask whether the board must show as a condition precedent'to
revocation of parole or mandatory supervision, that the releasee had
the ability to pay some or all of the amount which is not in fact
paid.

     A showing,that the release= had the ability to pay some or all of
the amount ~which was not in fact paid is,not a "condition precedent"
to revocation of parole or mandatory supervision. However; a parolee
would be allowed to show his inability to pay as .a circumstance
mitigating against revocation under Ex parte Ates. 487 S.W.2d 353
(Tex. Grim. App. 1972). This case construed the 8upreme Court's
holding in Morrissey v. Brewer, 408 U.S. 471 (1972), which set forth
the due process requirements which must be met in a revocation of




                                 p. 1653
hr. Ruben Torres     - Page 5     (MU-472)




parole. Part of these requirements are set forth in Ex part= Ates,
supra, at 354:

         Revocation Hearing:

            If desired by parolee such hearing should
         decide any contested facts and determine whether
         they warrant revocation. Parolee should receive
         written notice of the claimed violations and must
         have an opportunity to be heard and show that
         either he did not violate the conditions of parole
         or that there were circumstances which mitigate
         against revocation. (Emphasis added).

     You next ask whether the board has authority to establish 55 a
condition of release that a release= make restitution or reparation to
the victim of the crime, where the judgment of the convicting court
does not specify a dollar amount of such obligation.

     The board may-notestablish a condition of release requiring the
releasee to make restitution or reparation to the victim of his crime
where the monetary amount of such restitution or reparation cannot be
determined from the sentence. Such action would require the board to
adjudge issues in the domain of the convicting court. In addition,
such a condition could be contrary to the requirement in article
42.12, section 15(g) that the total amount of such restitution not
exceed the amount established by the convicting court and entered in
the sentence.

     You next ask whether the board may collect and disburse
restitution and reparation payments, or whether it must require direct
payment from the release= to the victim.

     As noted in response to your first question, article 42.12,
section 15(g) of the Code of Criminal Procedure authorizes the board
to adopt such "reasonable rules not inconsistent with law as it may
deem proper or necessary with respect to... conditions to be imposed
upon parolees and persons released to mandatory supervision." In our
opinion, the adoption of rules which provide for the collection and
disbursement of restitution and reparation monies by the board itself
would be a reasonable way of exercising its authority to,supervise
repayment by a releasee to the victim of his crime. See also 812
(board may determine degree of supervision of releasee); 120 (board
may make rules for conduct of releasee). A condition that the
release= pay such payments directly to the victim of his crime would
have the unfortunate result of forcing the releasee and the victim of
his crime to have renewed contact with one another. Promulgating
rules which would allow the board to establish a condition that the
releasee make such payments to the board would not only facilitate




                                p. 1654
Yr. Ruben Torres      - Page 6   (~~-472)




5upervi5ion of the releasee's compliance, but would avoid such
involuntary contact between the releasee and the victim of his crime.

     Article 42.12, section 15 (1)I passed in 1981 by the
Sixty-seventh Legislature, now provides a third option to the board by
authorizing it to contract with the Texas Adult Probation Commission
for the supervision of a releasee subject to the approval of the judge
or judges that employ the probation officer. The conditions of
probation may require the release= to make various payments. See Code
Grim. Proc. art. 42.12, 56. The restitution and reparation payments
could be collected and disbursed in accordance with established
procedures for the handling of payments made by probationers pursuant
to section 6 of article 42.12.

     You next ask whether the board's authority to require that a
releasee make restitution or reparation is limited to cases wherein
the prisoner was sentenced for an offense committed after the
effective date ,of the 1977 amendment, which added the language on
restitution and reparation to section 15(g) of article 42.12.
                                           -, ,\.> -
     Prior to 1977, article 4~2.12 did not expressly provide for the
payment of restitution or reparation. See Acts 1967; 60th Leg., ch.
659. 529, at 1745-46'. A 1977 amendment tosection 15(g) provided that
the conditions of parole established by the board "may 'include the
making of restitution or reparation to the victim of 'the prisoner's
crime." Acts 1977, 65th Leg., ch. 347, §l, at 928. (Emphasis added).
The 1981 amendment to section 15(g) of article 42.12 provides that the
parole conditions "shall include the making of restitution or
reparation." Acts 1981, 67th Leg., ch. 141, 15. at 355. (Emphasis
added).

     The board's authority to recommend as a condition of release that
a releasee make restitution or reparation to the victim of his crime
is not limited to cases wherein the prisoner was     sentenced for an
offense committed after the effective date of the 1977 amendment to
section 15(g) of article 42.12 of the Code of Criminal Procedure. The
board's broad discretionary authority under article 42.12 to set
conditions of release would have allowed the board to recommend such
conditions even before the passage of the 1977 amendment. Even prior
to 1977, section 2 of article 42.12 defined parole 55 "the release of
a prisoner from imprisonment but not from the legal custody of the
State. ~for rehabilitation outside of prison wall5 under such
conditions and provisions for disciplinary supervision as the Board of
Pardons and Paroles may determine." Acts 1965, 59th Leg., ch. 722, at
489.   (Emphasis added). The 1977 amendment specified that these
conditions may include the making of restitutionor reparation to the
victim of the crime. Acts 1977, 65th Leg., ch; 388, at 1058. In
passing this amendment the legislature merely clarified the board's




                             p. 1655
    .


,       Mr. Ruben Torres     - Page 7      0%472)




        already-existing authority in this regard, and the provision is not
        retroactive as applied to a defendant convicted prior to its passage.

                                    SUMMARY

                    The Texas Board of Pardons and Paroles may
                 recommend as a condition of release that a
                 releasee pay fines and/or court costs to the
                 appropriate collecting officer. It cannot itself
                 collect such monies. The board does not have the
                 authority to recommend the release of an inmate on
                 the condition that he repay fines. court costs,
                 restitution or reparation at a rate which it has
                 determined would be an unreasonable burden on the
                 releasee.   The board has the authority to
                 recommend release on the condition that the
                 releasee ww       less than the total amount
                 outstanding in fines, court costs, restitution or
                 reparation during the period of his supervision.
                 In the event of a parole revocation, the release=
                 could present evidence of his inability to repay
                 the full amount set by the board as a condition of
                 release as a circumstance which would mitigate
                 against revocation. The board can recommend as a
                 condition of release that the releasee Pw
                 restitution or reparation to the victim only when
                 the amount was established by the convicting
                 court. The board is authorized to collect and
                 disburse such restitution or reparation payments.
                 The board's authority to impose as a condition of
                 release that a releasee make restitution or
                 reparation to the victim of his crime is not
                 limited to cases where the prisoner was sentenced
                 for an offense committed after the effective date
                 of the 1977 amendment to article 42.12, section
                 15(g) of the Code of Criminal Procedure.

                                                    Very truly yours,   0



                                                    MARK      WHITE
                                                    Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        RICHARD E. GRAY III
        Executive Assistant Attorney General




                                     p. 1656
Mr. Ruben Tones       - Page 8    (m-472)




Prepared by Susan L. Garrison &
Maury Hexamer
Assistant Attorneys General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Maury Hexamer
Patricia Rinojosa
Jim Moellinger




                                  p. 1657
