                                 ATTORNEY GENERAL OF TEXAS
                                               GREG        ABBOTT




                                                 September 3,2003



The Honorable Ted G. Walker                                   Opinion No. GA-0095
Jasper County Criminal District Attorney
Jasper County Courthouse                                     Re: Whether, as a condition of community
12 1 North Austin, Room 10 1                                 supervision, a court may require a defendant
Jasper, Texas 7595 1                                         charged with a drug offense to pay a “flat-rate”
                                                             fee into a “special investigation fund” or other
                                                             fund designated by the court, with the proceeds
                                                             divided and used by prosecutors        and law
                                                             enforcement agencies (RQ-0034-GA)


Dear Mr. Walker:

        You ask whether, as a condition of community supervision, a court may require a defendant
charged with a drug offense to pay a “flat-rate” fee into a “special investigation fund” or other fund
designated by the court, with the proceeds divided and used by the local prosecutor’s office and law
enforcement agencies. ’

          You state that “[s]ome years ago” the Jasper County Criminal District Attorney’s Office and
the district court agreed to require certain defendant drug offenders who were put on community
supervision, formerly known as “probation,” to make a “flat-rate” payment that was divided between
the criminal district attorney’s office “and a now-defunct interlocal drug crime task force.” Request
Letter, supra note 1, at 1; see Act of May 29,1993,73d Leg., R.S., ch. 900, 8 4.01, 1993 Tex. Gen.
Laws 3586, 3716-42 (changing the term “probation” to “community supervision”).            By the term
“flat-rate,” you explain that the dollar amount of the payment corresponded with a particular drug
offense and that only defendants who were arrested by the beneficiary drug task force would be
assessed.* As you understand it, the fee’s purpose “was to impose additional sanctions on those
probationers as a means to further rehabilitation,” although, you point out, the fee did not go to an
entity providing rehabilitation services. Request Letter, supra note 1, at 1; Telephone Conversation,
supra note 2. The court no longer assesses the payment. See Telephone Conversation, supra
note 2.



         ‘Letter from Honorable Ted G. Walker, Jasper County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General, at 1 (Mar. 17, 2003) (on file with the Opinion Committee) [hereinafter Request Letter].

           2Telephone conversation with Kollin Shadel, Jasper County Assistant Criminal District Attorney (July 15,2003)
[hereinafter Telephone Conversation].
The Honorable   Ted G. Walker      - Page 2       (GA-0095)




          Article 42.12 of the Code of Criminal Procedure places the responsibility for determining the
 conditions of a particular defendant’s community supervision “wholly within” the state court having
jurisdiction of the defendant. TEX. CODE CRIM.PROC. ANN art. 42.12,§ 1 (Vernon Supp. 2003);
see also id. 8 2(l)-(2) (defining the term “court”). The term “community supervision” encompasses
“a continuum of programs and sanctions, with conditions imposed by the court for a specified period
during which” the court either defers criminal proceedings without adjudicating the defendant’s guilt
or probates “a sentence of imprisonment or confinement, imprisonment and fine, or confinement and
 fine” and suspends the sentence in whole or in part. Id. fj 2(2); see also id. §Q 3(a), 4(a), 5(a)
 (defining circumstances in which defendant may be placed on cornrnunity supervision).

         The court may, in accordance with section 11 (a), “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. 8 11 (a). Section 1 l(a) expressly enumerates several monetary
obligations that a judge may impose:

                Conditions of community supervision may include, but shall not be
                limited to, the conditions that the defendant shall:




                        (8) Pay his fine . . . and all court costs . . . ;

                        (9) Support his dependents;




                          (11) Reimburse the county in which the prosecution was
                instituted for compensation paid to appointed counsel for defending
                him in the case . . . ;

                        (12) . . . [Play a percentage of his income to [a community
                corrections   facility] for room and board;

                          (13) Pay a percentage of his income to his dependents for their
                support while under custodial supervision in a community corrections
                facility;




                        (18) Reimburse the general revenue fund for any amounts paid
                from that fund to a victim . . . of the defendant’s offense or if no
                reimbursement    is required, make one payment to the fund in an
                amount not to exceed $50 if the offense is a misdemeanor or not to
                exceed $100 if the offense is a felony;
The Honorable    Ted G. Walker - Page 3         (GA-0095)




                        (19) Reimburse a law enforcement agency for [analyzing,
                storing, or disposing] of raw materials, controlled substances,
                chemical precursors, drug paraphernalia, or other materials seized in
                connection with the offense;

                        (20) Pay all or part of the reasonable and necessary costs
                incurred by the victim for psychological counseling made necessary
                by the offense or for counseling and education relating to acquired
                irnmune deficiency syndrome or human immunodeficiency         virus
                made necessary by the offense; [and]

                        (21) Make one payment in an amount not to exceed $50 to a
                crime stoppers organization . . . .

Id. 5 11 (a). A defendant accused of a crime to which “drug or alcohol abuse significantly
contributed” also may be ordered, under section 14(c), to pay a portion of substance abuse treatment
costs. See id. 8 14(c); see also id. 55 11 (g)-(h), 19(a), (e)-(g) (authorizing other payments for
particular offenses).

         Section 1 l(b) restricts a court’s authority to require a defendant to make a payment as a
condition of community supervision, however: “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.” Id. 5 I l(b); see also Busby v. State, 984 S.W.2d 627,
629-30 (Tex. Crim. App. 1998) (en bane) (stating that section 11 (b) limits the conditions that section
11 (a) authorizes).

         As a preliminary matter, we do not read subsection (b) to require a court to find that a desired
fine, court cost, or restitution will relate personally to the defendant’s rehabilitation.   The phrase
“related personally to the rehabilitation of the defendant” does not modify each of the preceding
types of payments: “fines,” “court costs,” “restitution,” and “other payments.” Rather, the phrase
modifies only “other conditions.” Fines, by definition, are intended to punish a wrongdoer. See
 United States v. Jimenez, 600 F.2d 1172,1174 (5th Cir. 1979). Restitution to the victim is intended
to redress the wrongs the victim has suffered. See Nunez v. State, 27 S.W.3d 210,217 (Tex. App.-fil
Paso 2000, no pet.). Neither relates personally to a defendant’s rehabilitation.

         In Busby v. State, a 1998 case, the Texas Court of Criminal Appeals construed section 1 l(b)
to prohibit a court order to pay the costs of prosecution. See Busby, 984 S.W.2d at 631. Busby
determined that, despite section 11 (b), a court has no authority to order a defendant placed on
community supervision to reimburse the county for the costs of the attorney pro tern who prosecuted
the case after the district attorney recused himself. See id. at 630-3 1. According to the court, if the
legislature had intended to perrnit a court to order a defendant on community supervision to pay
prosecution costs as costs of court, it would have done so expressly. First, the court pointed out that
article 42.12, section 11 (a)( 11) expressly authorizes a court to require a defendant to reimburse the
The Honorable Ted G. Walker       - Page 4       (GA-0095)




county that prosecuted the case for the costs of the court-appointed defense counsel or public
defender. See id.; TEX. CODE CRIM. PROC. ANN. art. 42.12, 8 1 l(a)(l 1) (Vernon Supp. 2003).
Second, the court suggested, the public policy against having a defendant pay the costs of
prosecution is so entrenched that the legislature would not alter it by implication:

                The public policy of having the defendant bear the costs of the
                defense attorney is a familiar part of our legal system. A public
                policy of having defendants reimburse the state for the costs of the
                prosecuting attorney would be a novelty, one which we will not
                impute to the legislature on such tenuous statutory language as that
                which the [@ate has presented.

Busby, 984 S.W.2d at 63 1.

         The payment you describe is not “otherwise expressly authorized by law.” Nothing in article
42.12, nor in any other statute of which we are aware, expressly authorizes a court to require this
type of payment as a condition of community supervision. You do not suggest that article 42.12,
section 1 I (a)( 19), under which a court may order a defendant to reimburse the law enforcement
agency that analyzed, stored, or disposed “of raw materials, controlled substances, chemical
precursors, drug paraphernalia, or other materials seized in connection with the offense,” authorizes
the portion of the payment that is designated for law enforcement purposes. TEX.CODE GRIM.PROC.
ANN. art. 42.12, $9 1 l(a)(19), 14(c) (V emon Supp. 2003); see Request Letter, supra note 1, at l-2.
Neither chapter 102 of the Code of Criminal Procedure, which lists several costs to be paid by
defendants, nor chapter 362 of the Local Government Code, under which certain local governments
have established drug task forces, expressly authorizes such a payment.            See Chavez v. State,
9 S.W.3d 8 17,8 18 (Tex. Crim. App. 2000) (en bane) (indicating that local governments had formed
regional anti-drug abuse task force under section 362.002(b), Local Government Code); Tex. Att’y
Gen. Op. No. JM-0853 (1988) at 3 (determining that, though statutes recognize crime-stoppers
organizations’ existence, “a probation condition requiring a” defendant to donate to such an
organization “cannot, in the absence of a more specific statutory mandate, be said to be . . .
‘expressly authorized by statute”‘). See generally TEX. CODE CFUM.PROC. ANN. ch. 102 (Vernon
2003); TEX. LOC. GOV’T CODE ANN. 4 362.002(b) (Vernon 1999) (authorizing local governments
to establish “a mutual aid law enforcement task force to cooperate in criminal investigations and law
enforcement”). Finally, no statute specifically providing for criminal district attorneys in general nor
the Jasper County Criminal District Attorney in particular expressly authorizes imposing such a
payment. See TEX. GOV'T CODE ANN. $9 41.005,44.221 (Vernon 1988); see also id. 5 41.004
(Vernon Supp. 2003) (forbidding district attorney from taking “from any person a fee, article of
value, compensation, reward, or gift. . . to prosecute a case that he is required by law to prosecute”).

         Consequently, if the payment is authorized at all, it must be a fine, court cost, restitution, or
other payment “related personally” to the defendant’s rehabilitation. TEX.CODE GRIM.PROC. ANN.
art. 42.12, 8 1 l(b) (V emon Supp. 2003). This payment is not a fine because the legislature has not
expressly prescribed it. See Pennington v. Singleton, 606 S.W.2d 682,690 (Tex. 1980) (stating that,
“[glenerally, prescribing fines” is within legislature’s discretion); State v. Laredo Ice Co., 73 S.W.
The Honorable Ted G. Walker      - Page 5      (GA-0095)




95 1, 953 (Tex. 1903) (“Prescribing fines and other punishments . . . is a matter peculiarly within”
the legislature’s “power and discretion.“); see also League v. State, 716 S.W.2d 112, 114 (Tex.
App.-Dallas 1986, no writ) (holding that the trial court erred by imposing a fine of $350, where the
maximum fine allowed by statute was $200). For example, chapter 12 of the Penal Code sets out
permissible fine ranges for criminal offenses generally. See TEX. PEN. CODE ANN. $9 12.21(l),
 12.22(l), 12.23,12.32(b), 12.33(b), 12.34(b), 12.35(b) (Vernon 2003). Chapter 481, subchapter D
of the Health and Safety Code sets out permissible fine ranges for various offenses related to the
manufacture, delivery, possession, or transport of controlled substances. See, e.g., TEX.HEALTH &
SAFETYCODEANN. $9 481.112(e)-@),481.115(f), 481.120(b)(6) (Vemon2003). Noris the payment
a court cost, as the Texas Court of Criminal Appeals explained in Busby when it considered an
analogous community supervision condition. See Busby, 984 S.W.2d at 630. And, obviously, the
payment is not restitution to the victim, as the victim receives none of the money. Thus, to be a
permissible condition, it must be an “other condition[] related personally” to the defendant’s
rehabilitation.  See TEX. CODE CRIM. PROC. ANN. art. 42.12, 5 1 l(b) (Vernon Supp. 2003). You
suggest, however, that, because none of the money goes to entities that may assist in rehabilitating
the defendant, the payment cannot relate personally to the defendant’s rehabilitation. See Telephone
Conversation, supra note 2.

         Busby clearly requires a conclusion that this payment is not, as a matter of law, related to a
defendant’s rehabilitation and is, therefore, impermissible under section 11(b). As Busby suggests,
the language of subsection (b) is not express enough to be read to permit a court to “reimburse the
state for” the prosecuting attorney’s costs. See Busby, 984 S.W.2d at 63 1. For similar reasons, a
court likely would conclude that a payment to law enforcement for unspecified purposes is not
“related personally” to a defendant’s rehabilitation.

        We conclude that a court may not require a defendant placed on community supervision to
make a payment, as a condition of community supervision, to be divided between the local
prosecutor’s office and local law enforcement.
The Honorable   Ted G. Walker      - Page 6    (GA-0095)




                                        SUMMARY

                         Under article 42.12, section 1 l(b) of the Code of Criminal
                Procedure, a court may require a defendant to make a payment as a
                condition of community supervision, but only if the payment is a fine,
                court cost, restitution to the victim, a “condition related personally”
                to the defendant’s rehabilitation, or another payment expressly
                authorized by law. A required payment for unspecified use, to be
                divided between the local prosecutor’s           office and local law
                enforcement, is not a “condition related personally” to the defendant’s
                rehabilitation under the statute.

                                               Very truly yours,   ,




                                               Attorney General of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kyrnberly K. Oltrogge
Assistant Attorney General, Opinion Con-rmittee
