      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00497-CR



                                    Daniel Aguilar, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 57943, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                                           OPINION


               On July 28, 2005, Daniel Aguilar pleaded guilty to possession of less than one gram

of methamphetamine, a state jail felony. See Tex. Health & Safety Code Ann. § 481.102(6) (West

Supp. 2006), § 481.115(a), (b) (West 2003). The trial court found the evidence sufficient to support

a finding that Aguilar was guilty but deferred the adjudication of guilt and placed Aguilar on

community supervision for three years pursuant to a plea bargain. On November 30, 2005, the State

filed a motion to adjudicate guilt, alleging that Aguilar violated multiple conditions of his deferred

adjudication community supervision. At the hearing on December 16, 2005, Aguilar pleaded true

to those allegations. The trial court found that Aguilar violated the conditions of his deferred

adjudication community supervision and adjudicated him guilty of the underlying offense. The trial

court assessed a punishment of two years in the state jail but placed Aguilar on probation for five

years, again pursuant to a plea bargain.
               The State filed a motion to revoke Aguilar’s probation on March 29, 2006, and a first

amended motion to revoke Aguilar’s probation on April 12, 2006, both alleging numerous violations

of the conditions of Aguilar’s probation. A hearing was held on July 14, 2006, and Aguilar pleaded

true to the allegations. The trial court sentenced Aguilar to eighteen months in the state jail and

announced from the bench, “I order that you pay all court costs, court appointed attorney’s fees, and

$140 lab fee within six months after your release from the state jail.” However, the written judgment

states, “PAROLE CONDITION: DEFENDANT ORDERED BY COURT TO PAY COURT

COSTS, ATTORNEY FEES, FINES, AND RESTITUTION AS A CONDITION OF PAROLE.”

               In his sole point of error on appeal, Aguilar argues that the trial court erred by

ordering him to pay court costs, attorney’s fees, and lab fees because Texas trial courts lack authority

to place conditions on a convicted defendant’s parole, because parole is not available for a person

convicted of a state jail felony, and because the trial court otherwise lacked authority to order the

payments. We will modify the trial court’s judgment.

               A Texas trial court’s authority to order a defendant to make payments depends on the

type of proceeding involved and the nature of the payment.

               A trial court lacks authority to place any condition on a convicted defendant’s parole.

Bray v. State, 179 S.W.3d 725, 728 (Tex. App.—Fort Worth 2005, no pet.). The authority to place

conditions on a defendant’s parole is solely within the purview of the Board of Pardons and Paroles.

McNeill v. State, 991 S.W.2d 300, 302 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d, untimely

filed); see Tex. Gov’t Code Ann. § 508.221 (West 2004). A defendant convicted of a state jail

felony is not eligible for parole. Tex. Gov’t Code Ann. § 508.141(a)(1) (West 2004); Best v. State,



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118 S.W.3d 857, 866 (Tex. App.—Fort Worth 2003, no pet.). Therefore, the trial court clearly

lacked authority to order Aguilar to pay court costs, attorney’s fees, and lab fees as

a condition of parole.

               A trial court, however, does have the authority to order a defendant to pay court costs

at some later date as part of its judgment. Tex. Code Crim. Proc. Ann. arts. 42.15(a), (b)(2) (“When

the defendant is fined, the judgment shall be that the defendant pay the amount of the fine and all

costs to the state. . . . When imposing a fine and costs a court may direct a defendant . . . to pay the

entire fine and costs at some later date . . . .”), 42.16 (West 2006) (“If the punishment is any other

than a fine, the judgment shall . . . adjudge the costs against the defendant, and order the collection

thereof as in other cases.”). If the court determines that the defendant has financial resources that

allow him to offset the costs of his court appointed attorney, the court can order the defendant to pay

all or a portion of the attorney’s fees as court costs. Id. art. 26.05(g) (West Supp. 2006). Therefore,

the trial court’s oral order that Aguilar pay court costs and attorney’s fees within six months of his

release from the state jail was proper.

               A trial court can also order a defendant to pay lab fees, but only as a condition of

community supervision. Id. art. 42.12, § 11(a)(19) (West 2006) (providing that a court can order a

defendant, as a condition of community supervision, to “[r]eimburse a law enforcement agency for

the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug

paraphernalia, or other materials seized in connection with the offense”). When a trial court revokes

a defendant’s community supervision, “[t]he judge shall enter the amount of restitution or reparation

owed by the defendant on the date of revocation in the judgment in the case.” Id. § 23(a).



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                Here, we must determine whether the trial court had authority to order Aguilar to

reimburse the Department of Public Safety for lab fees when it revoked his probation. The State

argues that the lab fees that Aguilar was ordered to pay constitute “restitution” under subsection

23(a) and that the trial court could validly order their payment upon revocation. However, a trial

court may only order a defendant to pay restitution to a victim. Id. art. 42.037(a) (West 2006). The

expenses incurred by the Department of Public Safety in testing the methamphetamine found in

Aguilar’s possession were not sustained as a result of being the victim of a crime. Uresti v. State,

98 S.W.3d 321, 338 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The Department of Public

Safety was not the direct recipient of an injury caused by Aguilar’s crime. Id. Therefore, the trial

court lacked authority to order Aguilar to pay lab fees as restitution upon revoking his probation.1


        1
           Likewise, the term “reparation” does not encompass lab fees. While “reparation” is not
defined by the code of criminal procedure, it appears to refer to statutory language in the original
version of the code of criminal procedure. The original probation statute in the code of criminal
procedure provided that a trial court could require a defendant, as a condition of his probation, to
“[p]ay his fine, if one be assessed, and all court costs whether a fine be assessed or not, in one or
several sums, and make restitution or reparation in any sum that the court shall determine.” Act of
May 27, 1965, 59th Leg., R.S., ch. 722, § 1, art. 42.12, sec. 6(h), 1965 Tex. Gen. Laws 317, 491.
         Subsequent versions of the probation statute allowed trial courts to order a defendant to pay
“restitution or reparation” and to reimburse a law enforcement agency for “analysis, storage, or
disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other
materials.” See, e.g., Act of May 31, 1993, 73d Leg., R.S., ch. 900, § 4.01, art. 42.12, sec. 11(a)(8),
(21), 1993 Tex. Gen. Laws 3586, 3725–26. The fact that prior versions of the probation statute listed
“restitution or reparation” separately from lab fees indicates that lab fees are not included in the
phrase “restitution or reparation.” See Campbell v. State, 49 S.W.3d 874, 876 (Tex. Crim. App.
2001) (“In analyzing the language of a statute, we assume that every word has been used for a
purpose . . . .”).
         In 1993, the legislature deleted the “restitution or reparation” language from section 11 of
article 42.12 and enacted article 42.037, an entire provision governing restitution. See Act of May
29, 1993, 73d Leg., R.S., ch. 806, §§ 1–2, 1993 Tex. Gen. Laws 3207, 3207–09. Section 23 of
article 42.12 has not been amended since the enactment of article 42.037.
         We hold that “restitution or reparation” in section 23 of article 42.12 refers to the restitution

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We have not found any other authority that would allow a trial court to order a defendant to pay lab

fees upon revoking his probation, and the State has not pointed us to any.

               In this case, the sentence pronounced by the trial court from the bench is different

than the sentence reflected in the written judgment. When the oral pronouncement of a sentence and

the written judgment differ, the oral pronouncement controls. Ex parte Huskins, 176 S.W.3d 818,

820 (Tex. Crim. App. 2005). The proper remedy in such a situation is to modify the trial court’s

judgment to match the oral pronouncement.            See Ex parte Madding, 70 S.W.3d 131, 137

(Tex. Crim. App. 2002).

               Therefore, we will modify the judgment to reflect that Aguilar is ordered to pay court

costs and court appointed attorney’s fees within six months after his release from the state jail not

as a condition of parole, but under the trial court’s authority granted by the code of criminal

procedure. See Tex. Code Crim. Proc. Ann. arts. 26.05(g), 42.16. We will further modify the

judgment to strike the portion ordering the payment of lab fees because the trial court lacked

authority to order such a payment.        See Tyler v. State, 137 S.W.3d 261, 267–68 (Tex.

App.—Houston [1st Dist.] 2004, no pet.) (holding that modification was the correct remedy where

the trial court imposed an unauthorized sentence).

               We modify the portion of the trial court’s judgment that currently reads “PAROLE

CONDITION: DEFENDANT ORDERED BY COURT TO PAY COURT COSTS, ATTORNEY

FEES, FINES, AND RESTITUTION AS A CONDITION OF PAROLE” to read as follows: “The



governed by article 42.037. Therefore, section 23 of article 42.12 did not empower the trial court
to order Aguilar to pay lab fees to the Department of Public Safety upon the revocation of his
probation as “restitution or reparation.”

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Defendant is ordered by the court to pay court costs and attorney’s fees within six months of his

release from the state jail.”

                As modified, we affirm the trial court’s judgment.



                                                     _____________________________________

                                                     Diane Henson, Justice

Before Chief Justice Law, Justices Puryear and Henson

Modified and, as Modified, Affirmed

Filed: February 23, 2007

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