On August 10th the 9th Court of Appeals released several opinions and other rulings, one of which was not a memorandum opinion.
GIPSON v. TEXAS – PDF of opinion – Reversed and Remanded
At issue in this case was the 252nd District Court’s revocation of the Appellant’s probation. The Appellant had plead “True” to one of three allegations that he violated the terms of condition of probation. For reasons that are unimportant to us, the other two allegations were not pursued at the revocation hearing. The Appellant pleaded “True” to not paying the court-assessed fees. The prosecution did not put on any evidence, and the trial court revoked Appellant’s community supervision, assessing a prison sentence of 8 years, solely on the pleadings.
For those not well-versed in the Texas Code of Criminal Procedure, Article 42.12 is the (rather lengthy) portion of the code detailing the ins and outs of probation and deferred adjudication. The court in Beaumont cites the pertinent part, section 21(c), and goes through a bit of legislative history detailing a recent change. In brief, that section calls for trial courts hearing a revocation matter which has at issue only proof or the admission of non-payment of “compensation paid to appointed counsel, community supervision fees, or court costs” to require the prosecution to show, by a preponderance of the evidence, that the probationer was able to pay, and failed to do so despite this fact.
In 2007, the legislature reworked the code first by shifting the onus onto the state to prove ability to pay, and by removing the words “restitution, or reparations.” The latter change is the focus of the Court’s analysis, specifically addressing whether the removal of those words was a conscious effort to limit the circumstances in which it is required that the State show ability to pay. Citing precedent from the United States Supreme Court, memorandum opinion dicta from the Texarkana appellate court, and the aforementioned legislative history with regard to the change to section 21(c), the Court here determined that the trial court abused its discretion. The Court ruled that “when the sole basis for revocation is failure to pay court-ordered fines and fees, there must be evidence of willful refusal to pay or failure to make sufficient bona fide efforts to pay.” The Court disregarded the removal of the words “restitution, or reparations,” and reversed the trial court’s ruling on the basis that a reparation (fine) being a part of the mix of arrears does not absolve the State of its burden of putting on evidence of the probationer’s ability to pay. The Court did not have restitution at bar, but specifically held that restitution should still be read into the requirements of section 21(c).