                       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?




                                p. 4127
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,




                            p. 4128
     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:




                                    p. 4129
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




                           p. 4130
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




                             p. 4131
