              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS

                                         NO. PD-1711-13

                            MELISSA ANN MERCER, Appellant

                                                  v.

                                    THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE THIRTEENTH COURT OF APPEALS
                               BEE COUNTY

       J OHNSON, J., filed a concurring opinion.

                            CONCURRING OPINION

       Section 15 of Article 42.12 of the Code of Criminal Procedure governs community

supervision in state-jail felony cases, such as appellant’s. The statute states that a judge may impose

“any condition” of community supervision that the judge could impose on a defendant placed on

supervision “for an offense other than a state jail felony.” A court is authorized under Article

42.038(b) of the Code to require that a defendant placed on deferred adjudication for a misdemeanor

serve a period of confinement in county jail as a condition of community supervision and reimburse

the county for that confinement.

       When considering the interplay between those two statutes, it becomes clear that the language
                                                                                                        2
in those statutes is not clear and unambiguous. Therefore, it is appropriate to look at the legislative

history of those statutes. Looking at that legislative history, I observe that Article 42.038 was

specifically focused on defendants convicted of misdemeanor offenses and reimbursement to the

counties for the costs of misdemeanants’ confinements in county jails.

        The Senate Research Center’s Bill Analysis determined that Article 42.038 authorized a court

to charge an incarcerated misdemeanant a cost for confinement in a county jail. The Legislative

Budget Board’s (LBB) fiscal note of the bill–S.B. 1276, which became Article 42.038–discussed the

provisions for allowing a county to order a defendant “convicted of a misdemeanor to reimburse the

county for costs of post-judgment confinement,” which could result in additional revenues to

counties. It specifically noted that four named counties had provided fiscal-impact statements for

the bill and that, in those statements, the counties estimated the effect of the bill on annual net county

revenues. The LBB fiscal note also pointed out that “[n]o fiscal implication to the State is

anticipated.” I likewise find nothing in the legislative history of Article 42.12, section 15, to indicate

any contemplation of ordering state-jail-felony defendants to pay reimbursement of costs for

confinement as a condition of community supervision, and the language of Article 42.038(b)–a

defendant placed on deferred adjudication for a misdemeanor–excludes defendants who are placed

on deferred adjudication for a felony of any degree.

        Clearly, the legislature was concerned with reimbursement for the counties’ costs of

confining of misdemeanants who were ordered to serve jail time in county jails as a condition of

community supervision. State-jail-felony defendants are confined in state, rather than county,

facilities. Thus the confinement of such state-jail-felony defendants is not affected by Article

42.038.
                                         3
      I join the opinion of the Court.



Filed: January 14, 2015
Publish
