Busby v. StateBusby v. State
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Appellant pleaded guilty to misapplying fiduciary property.
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Condition eleven orders appellant to pay court costs totaling $230,926.71. Contained in these costs is $230,695.21 paid by Bell County to the prosecutor pro tem appointed to represent the State in this cause.
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Trial courts are generally authorized to impose any -reasonable condition of community supervision.
The matter of costs in criminal cases is purely statutory.
Dunn v. State,
683 S.W.2d 729, 730 (Tex.App.—Amarillo 1984, pet. ref‘d);
see Lay v. State,
83 Tex.Crim. 222, 202 S.W. 729 (1918) (no fee may be charged to State or defendant except where authorized by statute). An officer may not impose a cost for a service for which a cost is not expressly provided by law.
The State argues that the fees paid to a prosecutor pro tem are court costs under the terms of articles 2.07(c) and 26.05(d).
The manner of payment referred to by article 2.07(c) is the procedure by which a prosecutor pro tem is to be paid by the county. The phrase “manner of payment” cannot reasonably be interpreted to encompass the question whether a defendant may be made to reimburse the county for all or part of the prosecutor’s fees. Article 26.05(d), while expressly permitting the payments made to appointed defense counsel to be included as costs of court, is silent with respect to the fees paid to a prosecutor pro tem. Read individually or together, articles 2.07(c) and 26.05(d) do not authorize the fees paid to a prosecutor pro tem to be included as court costs. The district court was not authorized to treat the fees paid to the prosecutor pro tem as a cost of court to be paid by appellant as a condition of supervision.
Alternatively, the State argues that article 42.12, section ll(a)(ll), read together with article 2.07(c), authorized the district court to order appellant to reimburse the county for the fees paid to the prosecutor pro tem. Code Crim. Proc. art. 42.12, § ll(a)(ll). Section ll(a)(ll) permits a trial court to order a defendant, as a condition of supervision, to reimburse the county for the compensation paid to appointed defense counsel. Again, the State argues that because the prosecutor pro tem in this cause was to be paid in the same manner as appointed defense counsel, the district court was authorized by section ll(a)(ll) to order appellant to reimburse the county for the compensation paid to the prosecutor. This argument fails for the same reason the State’s previous argument failed. Article 2.07(e) governs the manner by which a prosecutor pro tem is paid by the county. It does not speak to the question of reimbursement by the defendant.
All payments ordered as a condition of supervision must be expressly authorized by law. Art. 42.12, § 11(b); Martin, 874 S.W.2d at 677. For the reasons stated, we hold that the district court was not expressly authorized to order appellant, as a condition of supervision, to pay the prosecutor pro tern’s fees as a cost of court or to otherwise reimburse the county for those fees. To this extent, points of error two and three are sustained. We do not reach point of error one, by which appellant contends the evidence does not support reimbursement in the amount ordered.
Appellant’s fourth point of error is that there is no evidence to support the twelfth condition of supervision, which requires him to pay $55,683.77 in restitution to the injured party. While a trial court is authorized to order restitution as a condition of supervision, due process requires that there be a factual basis in the record for the amount of restitution ordered. Martin, 874 S.W.2d at 676; Wooley v. State, 629 S.W.2d 867, 870 (Tex.App.—Austin 1982, pet. ref‘d).
A presentence investigation report was prepared in this cause at appellant’s request. Among other things, a presen-tence report describes for the trial court the circumstances of the offense and specifies the amount of restitution necessary to adequately compensate the victim.
According to the presentenee report in this cause, appellant, who at the time of the offense was a licensed attorney, misapplied $300,000 in insurance proceeds he held in trust for a client. With respect to the question of restitution, the report stated that the client was still owed $55,683.77 in interest on the trust account. A copy of the presentence report was given to appellant and his attorney and they were permitted to make factual additions or corrections. Art. 42.12, § 9(d), (e). At the punishment hearing, appellant’s counsel specifically addressed the question of restitution and did not dispute the factual accuracy of the report. The district court took judicial notice of the contents of the presentence report on the State’s motion and without objection by appellant. Under identical circumstances, a presentence report has been held sufficient to sustain a restitution order. Mayfield, 757 S.W.2d at 875.
The State introduced numerous documents in evidence. Among them was the transcription of appellant’s deposition taken during professional disciplinary proceedings. In the deposition, appellant admitted that he kept his client’s money for three years, during which time he applied the money to his own personal use. Appellant also stated that the client did not receive interest on the money during this period.
We hold that the restitution portion of the presentence report, the accuracy of which was not disputed by appellant, and the other evidence in this cause adequately supports the restitution order. Point of error four is overruled.
The eleventh condition of community supervision is reformed to delete the requirement that appellant pay $230,695.21 in attorney fees. As reformed, the judgment of conviction, including the order to pay $55,-683.77 in restitution, is affirmed.
Notes
. Amendments to this statute since the offense was committed are irrelevant to the appeal.
. The exception is art. 102.008.