                                          The Attorney          General of Texas
                                                            March 14, 1983
JIM MATTOX
Attorney General


Supreme   Court Building
                                        Honorable James L. Chapman              Opinion No. JM-10
P. 0. BOX 12546                         District Attorney
Austin,    TX. 76711. 2546              113 College Street                      Re:   Revocation of probation
5121475.2501                            Sulphur Springs, Texas   75482          under article 42.12, section
Telex    9101874-1367
                                                                                8(c) for probationer’s failure
Telecopier     5121475.0266
                                                                                to make court ordered payment

1607 Main St., Suite 1400               Dear Mr. Chapman:
Dallas,   TX. 75201.4709
2141742.6944                                 In 1977, the Texas Legislature added section 8(c) to article
                                        42.12 of the Code of Criminal Procedure. Acts 1977, 65th Leg., ch.
4624 Alberta       Ave.. Suite    160   342, 52, at 909 and ch. 388, §2, at 1058. III 1981, the legislature
El Paso. TX.       79905.2793           amended this section. Acts 1981. 67th Leg., ch. 538, §2, at 2246.
9151533~3464                            The following information furnishes the background for your question,
                                        which is set out below.
  .20 Dallas Ave., Suite         202
Houston.     TX. 77002.6966                  Prior to 1977, in order to revoke probation for nonpayment of
7131650-0666                            fees, the state had to prove that the probationer was able to make fee
                                        payments and that he intentionally failed to do so.        See, e.g.,
                                        Whitehead v. State, 556 S.W.2d 802 (Tex. Crim. App. 1977). Section
606 Broadway,        Suite 312
Lubbock,     TX.    79401.3479
                                        S(c) changed this rule by making inability to pay certain fees an
6061747-5236                            affirmative defense to the failure to pay them. When the 1977
                                        legislature enacted this section, however, it enacted two versions of
                                        it. One version provided:
4309 N. Tenth, Suite B
McAllen.     TX. 76501~1665
5121682-4547
                                                    In a probation revocation hearing at which it
                                                 is alleged only that the probationer violated the
                                                 conditions of probation by failing to pay
200 Main Plaza. Suite 400                        probation fees, court costs, restitution, or
San Antonio,  TX. 78205.2797                     reparations. the inability of the probationer to
5121225-4191
                                                 pay as ordered by the court is an affirmative
                                                 defense to revocation, which the probationer must
An Equal      Opportunity/                       prove by a preponderence of evidence. (Emphasis
Affirmative     Action     Employer              added).

                                        Acts 1977, 65th Leg.,     ch. 342,   §2, at   909.   The other version
                                        provided:

                                                    In a probation revocation hearing at which it
                                                 is alleged the the probationer violated the
                                                 conditions of probation by failing to pay




                                                                 p.   39
                                                                        :   ‘




Honorable James L. Chapman - Page 2   (JM-10)




          compensation paid to appointed counsel, probation
          fees, court costs, restitution, or reparations,
          the inability of the probationer to pay as ordered
          by the court is an affirmative defense to
          revocation, which the probationer must prove by a
          preponderance of evidence. (Emphasis added).

Acts 1977, 65th Leg., ch. 388, 52, at 1058.

     As the underscored language indicates, these two versions
differed in two respects. In 1981, in an effort to clear up this
confusion, the legislature enacted House Bill No. 865. Acts 1981,
67th Leg., ch. 538, $2, at 2246. In its original form, this bill
purported only to repeal the chapter 342 version of section B(c).
During committee hearings on the bill, however, the word "only" was
added to the chapter 388 version. As a result, section 8(c) now
reads:

            In a probation revocation hearing at which it
         is alleged only that the probationer violated the
         conditions of nrobation bv failine to nav      . ,
         compensation paid to appointed counsel, probation
         fees, court costs, restitution, or reparations,
         the inability of the probationer to pay as ordered
         by the court is an affirmative defense to
         revocation, which the probationer must prove by a
         preponderance of evidence. (Emphasis added).

     In your letter to this office, you asked:

         What is the effect of the addition of the word
         'only' to this section? I would like to take the
         position that if there are technical allegations
         alleging a failure to pay coupled with substantive
         allegations alleging commission of another offense
         that there is no defense to failure to pay.
         However, there is another reading to the statute
         as amended and that is if there are allegations of
         failure to pay, coupled with allegations of a
         substantive offense, then we are back under the
         old law which requires the state of Texas to
         prove, by a preponderence, the ability to pay.

     Contrary to your assumption, the word "only" was not first added
to section 8(c) in 1981. This word appeared in one of the two earlier
versions of this section. In order to determine whether, as you
essentially argue, section 8(c) creates an affirmative defense to the
failure to pay fees only when nonpayment of fees is the sole ground
for revocation asserted in a revocation hearing, we must answer two




                              p. 40
    Honorable James L. Chapman - Page 3 (JM-10)


C




    questions: (1) was this the law under the 1977 amendments? and (2)
    did House Bill No. 865 change this law?

         We answer the second question in the negative. House Bill No.
    865 simply combined the two 1977 versions of section 8(c). Two years
    before this bill was enacted, however, the Texas Court of Criminal
    Appeals said that these two versions should be treated as if combined.
    In Jones v. State, 589 S.W.2d 419 (Tex. Crim. App. 1979), the court
    stated that the 1977 legislature had "doubtless inadvertently" enacted
    the two versions, but concluded that:

              [t]he two amendments in question are reconcilable
              and combine to make inability to pay the
              enumerated fees an affirmative defense which the
              defendant must raise and prove by a preponderance
              of evidence. (Emphasis added).

    589 S.W.2d at 421. Since section B(c), as amended by House Bill No.
    865, reads the same as the 1977 amendments, as construed in Jones, we
    believe it is apparent that the bill effected no substantive change in
    the prior law. On the contrary, it simply made the explicit wording
    of section 8(c) conform to the wording which Jones said was implicit
    in this section. The remaining question, therefore, is: what was the
    law under the 1977 amendments?

         In addition to Jones, Champion v. State, 590 S.W.2d 495 (Tex.
    Crim. APP.   1979), dealt with the 1977 amendments. Neither case,
    however,..decided how these amendments were to be construed where
    failure to pay fees was not the only ground for revocation of
    probation asserted in a revocation hearing. In Jones, no other ground
    was asserted. In Champion, additional grounds were urged, but the
    court's holding is not clear. In its opinion, the court discussed
    only the chapter 388 version of section B(c), without mentioning the
    chapter 342 version. Thus, Champion affords no clue as to how the two
    versions should be construed.

         Since court cases do not answer our question, we must construe
    these amendments in the manner which, in our opinion, best reflects
    the legislature's intent. Ex parte Roloff, 510 S.W.2d 913, 915 (Tex.
    1974). These amendments, we believe, were susceptible of three
    interpretations:   (1) they created an affirmative defense where
    failure to pay fees was the only basis for revocation asserted, but
    left the law as it had been, see Whitehead v. State, supra, in
    instances where additional groundswere asserted: (2) they created an
    affirmative defense where failure to pay fees -was the -only ground
    asserted, but afforded probationers no defense to nonpayment where
    other grounds were also asserted; or (3) they created an affirmative
    defense to the failure to pay fees even where, in addition to this
    ground, other grounds for revocation of probation were urged.




                                     p. 41
Honorable James L. Chapman - Page 4   (JM-10)




     We reject the first interpretation. We believe the intent of the
1977 amendments was to facilitate the state's case in nonpayment-of-
fees cases by relieving the state of the burden of having to prove
that the probationer could make fee payments and that he intentionally
failed to do so. Given this intent, we can perceive no reason why the
legislature would have wanted to relieve the state of this burden
where nonpayment of fees is the &     ground for revocation urged, but
require it to bear the burden where additional grounds are urged. In
our opinion, the legislature wanted to relieve the state of this
burden in all instances. Had the legislature's intent been otherwise,
we believe that clear evidence to this effect would appear in the
language or history of the 1977 amendments.

     We also reject the second interpretation. This theory would
place probationers against whom multiple grounds for revocation are
asserted in a more tenuous position than they were in even under the
pre-1977 law. Under that law, the state had to prove ability to pay
and intent not to do so. Under the "no defenseu theory, however, the
state would only have to show that a probationer failed to pay
required fees. In our opinion, if the legislature had intended to
provide probationers with an affirmative defense where failure to pay
fees is the only ground for revocation asserted, but afford them "0
defense where additional grounds are urged, it would have provided
clear evidence to this effect. Absent any such evidence, we decline
to conclude that this was its intent.

     The remaining interpretation is, in our judgment, correct.
First, we believe it is more reasonable to conclude that the
legislature intended to make inability to pay fees an affirmative
defense to nonpayment regardless of how many grounds for revocation of
probation are asserted. Second, for the reasons we have given, we
believe that neither of the other interpretations of section 8(c) is
as plausible. We therefore conclude that under the 1977 amendments,
inability to pay required fees was an affirmative defense to
nonpayment of fees even where other grounds for revocation of
probation were asserted. Because we believe that House Bill No. 865
did not effect any substantive change in the law, we conclude that the
law remains the same today.

     Harris v. State, 629 S.W.2d 832 (Tex. Civ. App. - Houston [14th
Disc.] 1982) discretionary review refused, May 26, 1982, supports our
construction of section B(c). There, probation was revoked on three
grounds, one of which was nonpayment of fees. On appeal, the
probationer contended, inter alla, that the trial court should not
have considered his failure to pay the fees in revoking his probation,
since his testimony as to his inability to pay the fees was uncontro-
verted. The court, however, rejected this argument. It observed that
the only evidence of his inability to pay was his own testimony to
this effect, and concluded that the trial court could "disbelieve




                                  p. 42
Honorable James L. Chapman - Page 5    (JM-10)




appellant's bare assertation of his inability to find work as the
basis for his failure to pay fees." 629 S.W.2d at 834.

     The court's discussion and approach to the case show that it was
of the opinion that inability to pay fees is an affirmative defense to
nonpayment even where nonpayment is not the only ground for revocation
asserted. Had it thought that the state must prove ability to pay and
intent not to do so where additional grounds are urged, the court
could not have reached the conclusion it did, since the probationer's
testimony that he was unable to pay the fees was uncontroverted. Had
the court thought that inability to pay is "0 defense where additional
grounds are asserted, it would almost certainly have decided the case
on that basis, and not discussed the merits of the probationer's
testimony. The fact that the court concluded that the probationer did
not offer sufficient proof of inability to pay clearly shows that it
felt that inability to pay is an affirmative defense even where
nonpayment is not the only basis for revocation asserted. Several of
the court's comments, i.e., its observation that "[alppellant came
forward with no other evidence of witnesses in support of his defense
of inability to pay," 629 S.W.2d at 833 (emphasis added), support this
conclusion.

     In answer to your question, then, the word "only" was in all
likelihood added to section 8(c) in 1981 to make this section read as
the Jones court said the 1977 versions of it should read. Under
section B(c), as amended in 1981, inability to pay fees is an
affirmative defense to the failure to pay them, regardless of whether,
in addition to failure to pay fees, other grounds for revocation of
probation are urged in a revocation hearing.

                             SUMMARY

             Under section 8(c) of article 42.12 of the Code
          of Criminal Procedure, inability to pay fees is an
          affirmative defense to the failure to pay them,
          regardless of whether, in addition to failure to
          pay fees, other grounds for revocation of
          probation are urged in a revocation hearing.




                                        JIM     MATTOX
                                        Attorney General of Texas

TOM GREEN
First Assistant Attorney General




                                   p. 43
Honorable James L. Chapman - Page 6    (JM-10)




DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Jon Bible and
Barbara Lipscomb
Assistant Attorneys General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger




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