*1 846 thе relevant issue incorrectly analyzed MERCER, Appellant Ann
Melissa of the vacate the we cause for and remand this appeals opinion. light of this reconsideration of Texas The STATE Background NO. PD-1711-13 Mercer, pled Melissa Ann Appellant, of Texas. Appeals of Criminal Court abuse and guilty to debit-card years. for five January 2015 Delivered: occasions, the trial court numerous On of commu- Aрpellant’s conditions amended without a sponte and nity supervision sua However, each signed hearing. Appellant conditions of her com- amending the order munity supervision. Balovich, County Regional, Bee Julie M. Later, hearing with court held a Defender, Washington N 331A Public counsel, prose- and the defense Appellant, Beeville, Appellant. Street, TX commu- revoked present, cutor Goldstein, Prosecuting At- State Stacey her to two and sentenced nity supervision, McMinn, Attorney, State’s torney, Lisa C. or- also years’ confinement. Austin, TX, for State. had failed pay she dered community her as conditions of pay including payment of her out- supervision, OPINION fine, costs, reimburse- standing J., delivered the Hervey, her confinement ment1 for costs of , Johnson, P.J., Keller in which Court community county jail while she was on Riсhardson, Keasler, Alcala, Yeary, hearing, revocation supervision. At the JJ., Newell, joined. proffered to evidence Appellant stipulated alleged true to all pled the State and asked to consider whether Here we are of her conditions of community supervision for violations a defendant her including failing pay supervision, to reim- state-jail felony may fine, costs, and rеimbursement as her incarcer- county for the cost of burse a conditions of her ordered as ation in as a condition However, did not supervision.2 Appellant be- hearing.3 cause we conclude the Garcia, although later aban- the State court used the term "restitution.” Grace 1. The trial "reimbursement,” through allegations and 10 doned We use the term shall allegations through Among other of vio- all but the the numerous community super- of her conditions of opinion, the Texas lations of its because conclusion vision, Appellant admitted that she had failed dealing article Code of Criminal Procedure the assessed costs and fines. expenses styled, "Reim- with confinement Expenses.” Tex. for Confinement Appellant's com- 3.When revoked art. 42.038. Code Crim. Proc. her, munity supervision and he sentenced part, stated 12, 2013, February signed Appellant 2. On community supervision will be re- judicially Her stipulation of evidence in which she voked, original imposed, allegations sentence two all 24 con- confessed to years jail with the balance of the in a state in an attached affidavit sworn tained *2 challenging the as Appellant appealed, 3.Is supervision condi- tion for sessment of fоr the costs of her con misdemeanor offenses that au- thorizes reimbursement county jail. finement in the The court of costs for con- supervisión finement as a relief, condition appeals granted Appellant holding properly imposed in a state trial court did not have the ex when, statute, case judge can im- press authority, under Article 42.12 of the pose any condition authorized for a non- Procedure, Texas Code of Criminal to or jail felony state offense? Appellant der reimburse costs her confinement as a condition of commu Discussion
nity supervision. remedy The court’s presented issue has been as one of to strike the reimbursement amount or ordering (as reimbursement for costs part Appellant’s dered to be n of confinement is a valid condition sentеnce) of com- judge Appel- after the revoked munity supervision in non-misdemeanor lant’s See Mercer record, reviewing cases. After we con- State, 13-13-00150-CR, No. 2013 WL clude that the issue is not whether the 6055271, at *2 (Tex.App —CorpusChristi . authority court had the impose reim- 2013) (not (mem.op.) designated bursement as a condition of Appellant’s publication). granted for We the State community supervision, but rather wheth- Attorney’s Prosecuting petition for review er the had the authority to order following grounds: on the revocation, Appellant after part challenge Is a to a super- sentence, fine, the balance of her condition, imposed vision in a modifica- costs, and reimbursement.4 tion order entered a hearing, without appeals granted Because the court of appeal forfeited on from revocation basis, Appellant relief on an erroneous we probationer when the was served with vacate the ap- the modification order and could have peals remand this cause to the court of timely objected in the trial court but proceedings. for further Further- failed to do so? more, we note that the State argued at the revocation, 2. On from appeal Ap- and in appeals, its brief to this pellant her challenge impo- forfeit Court, Appellant preserve failed to sition of incarceration reimbursement any complaint for review because as a supervision costs condition fail- object she did not at the hear- revocation ing when the included ing despite having an opportunity to do so. outstаnding Also, time, costs the revocation Appellant argues first judgment? there was insufficient basis to or- fees, fine, restitution, Therefore, unpaid costs if it executed. article 42.12 cannot collected, can be on a state which serve as a basis to order restitution really I don’t think it can be. general executed sentence even if the lan- guage pay- 42.12 authorize those essentially acknowledged by 4. This fact was [community super- ments Appellant’s court-of-appeals counsel when he vision]. stated, Appellant’s Brief at Mercer v. payments The restitution ordered in this (Tex.App. Corpus WL 6055271 Christi Nov. — case are not made 'as a condition of’ [com- 14, 2013) (No. (record 13-13-00150-CR) cita munity supervision] because the trial court omitted). tion Appellant [community [ ] removed from su- pervision] and оrdered sentence be- of costs in this case which became 42.038—dis- repayment der and that her indigent, provisions allowing a Appellant cause cussed the for the first time raised to order a defendant “convicted of misde- remand, On appeal. meanor reimburse peals confinement,” address error should post-judgment which *3 properly presented issues any other and in could result revenues coun- additional to re- necessarily must be addressed that four specifically ties. noted named appeal. solve provided fiscal-impact counties had state- that, for the bill in those ments and state- Johnson, J., a concurring opinion. filed ments, the counties estimated the effect of Alcala, J., opinion. a concurring filed on the bill annual net revenues. J., not participate. Meyers, LBB fiscal pointed The note also out that implication fiscal to the State is antic- “[n]o J., Johnson, a concurring opinion. filed nothing ipated.” likewise find 42.12 of the Code of Section 15 of Article legislative history of Article section governs community Procedure Criminal indicate of any contemplation order- cases, state-jail felony in such supervision ing state-jail-felony dеfendants to pay re- The states that a appellant’s. as statute of imbursement costs for confinement aas “any of judge may impose condition” com- of community supervision, condition and munity supervision that 42.038(b) of language Article defen- —a placed supervi- a defendant on impose on on placed adjudication dant deferred for a jail an offense other than a stаte sion “for misdemeanor —excludes defendants who is felony.” A court authorized under Arti- adjudication are placed deferred for a 42.038(b) of the Code to cle any degree. of adjudication defendant deferred period a misdemeanor serve a con- Clearly, the legislature concerned in finement condition of with reimbursement for the counties’ costs supervision reimburse and confining of misdemeanants who were county for confinement. county jails to serve in ordered time considering interplay between When of community supervision. a condition statutes, those two it becomes clear that State-jail-felony are defendants confined language in statutes is not state, those clear rather county, than facilities. Thus Therefore, unambiguous. appro- and is state-jail-felony the confinement of such priate at the legislative history to look of defendants not affected Article Looking legislative those statutes. at that 42.038.
history, I observe that Article 42.038 was I join the of the Court. focused on defendants convict- ed of misdemeanor offenses and reim- Alcala, J., filed concurring opinion. to the counties for costs of in county misdemeanants’ confinements join majority opinion this Court’s and jails. its reversing remanding this case to the court of I write sepa- The Senate Bill Research Center’s Anal- ysis rately to my reasoning address with re- determined Article 42.038 author- spect analysis ized a in the court charge incarcerated (1) misdemeanant a cost peals’ opinion regarding for confinement (2) error, county jail. Legislative Budget of an proрriety order for (LBB) Board’s fiscal note bill—S.B. reimbursement for incarceration coun- than state-jail felony rather “reimbursement” for ty incarcer- ation, a matter described See Mercer No. 13- probation. 42.038(b). Compare Tex.Code Crim. Proc.
13-00150-CR,
*2
WL
42.037(a)
2013)
(providing
art.
restitution for
(Tex.App.-Corpus Christi
victims),
crime
with (not
(mem.op.)
designated
publication).
Crim. Proc.
42.038(b) (providing
for reimburse-
expenses).
ment for cоnfinement
And the
I.
of Error
Preservation
orally pronounce
trial court did not
majority opinion points
As this Court’s
by appellant
“restitution” owed
out,
pertinent
this case is
to reimburse the
for her incarcera-
the trial court
Burt,
See
tion.
lant is correct may not be included for a defendant on community supervision, a condition of to reim felony may state-jail required to re- would be then this Court her con county for the costs of burse analysis only mand finement in a of error. community supervision. See (c) (court 42.038(b), Proc. Cmm. stated, see “[W]e
The court of probationer misdemeanor to “sub authorizes the nothing in the statute that in a period mit to a of confinement probationer order a trial court community supervi jail as a condition the cost felony case to reimburse a condition of may sion also Mercer, 2013 WL See confinement.” community supervision that the defendant disagree with this state at *21 for the defendant’s reimburse the ment of the law the confinement,” long so as the defendant is order a that a trial conclude Furthermore, indigent).2 not Code su non-indigent defendant “impose a trial court to generally permits state-jail felony case to fоr a pervision any reasonable condition” as a condition of con county for the costs reimburse a *5 community supervision. See Tex.Code sentencing person A judge finement. 11(a) 42.12, § (listing pos community supervision Crim. Proc. art. state-jail supervision community community conditions of any condition of sible may “impose including multiple types of reimburse judge supervision on a defendant judge generally permitting on ments and impose on a defendant condition”). “impose any than a reasonable Be an offense other supervision for a trial court to permits cause the Code jail felony.” state Proc. Tex.Code Crim. 15(c)(1). 42.12, may jail he reimbursement for time served § art. Because order community the trial is ordered as a condition of 1. The issue in this case is whether include, revoking may judgment supеrvision, court in its "the amount of reimbursement sentencing community supervision and a de- determined as if the defendant were [is be] prison, fendant unfulfilled amounts that serving an executed sentence.” Tex.Code only had been as a condition of com- Furthermore, 42.038(b). Crim. Proc. art. mind, my munity supervision. In those may if trial court not only part of a amounts ordered "the defendant is the determines that characteristiсally supervision different are indigent[J” art. Tex.Code Crim. Proc. judgment from in a trial court’s that amounts Here, 42.038(c). ap- the trial judgment, part are to be of the court's pellant per day, $40 and the record regardless community supervision, indigent. suggests appellant Be- that such as the Bill of Costs. the for consid- cause this Court remands case eration of whether the trial court’s reimburse- states, 42.038(a) any 2. Article "In addition to proper, ment order was this Court does not fine, cost, law, by or fee authorized question reach the merits on the whether the that a defendant convicted of a mis- sentences any ap- trial court made determination demeanor of confinement in to serve a term indigent pellant was not when it ordered re- county and orders execution the sen- Any imbursement. determination the may require tence the defendant to reimburse by the court of merits must be made county the confinement at for the defendant’s forfeited due to the if the matter has not been day.” a rate of Tex.Code Crim. Proc. art. 42.038(a). 42.038(b) objection argument lack of a trial or when states that peal. reimbursement for confinement in a judgment sentencing trial court’s as a condition of defendants, prison. non-indigent state-jail by erred conclude that the court of Assuming appellant’s brief to the that no statute authorized holding appeals presented argument for reimbursement as a con court’s order may that the trial court not order reim- community supervision. dition of bursement for her confinement in a question jail upon state-jail the broader that asks revocation of a commu- Unlike nity then may supervision, whether a trial court order reim- the merits of that extremely complex. issue become bursement of this sort supervision, specific the more Code of Criminal Procedure lists in detail here, what question majority may as noted be included a trial court’s judgment, is whether that reimbursement and reimbursement opinion, judgment in a costs of incarceration is neither may amount be included included revoking community supervision appear and sen- the list nor does it in another sec- tencing judg- a defendant to a term state- tion of Code jail facility. question reparation. That was not ad- ment to include restitution and But, See Tex.Code CRIM.Proc. art. 42.01 (listing dressed perhaps judg- was not addressed items that “shall” be reflected in the ment appellant adequately specifically listing because did not make restitution in 1(25)); § to that court. is not Crim. Proc. 23(a) § entirely (stating, clear to me that has “The shall enter the in her or adequately presented challenge reparation of restitution case.”).3 briefs, largely Regardless, which focus on the appellate not propriety though of the reimbursement order even listed Code, her conditions of a trial court have in its ap- general power authority In her brief to the court of to order this *6 however, it these cir- peals, portion type a small of asserts of reimbursement under complained-of that the were ordered cumstances which the reimbursement fees included, trial her to had been a unfulfilled when the court had sentenced extent, If To that condition of imprisonment. conclude not been due to that the court of should address issue has forfeited at her revoca- appellant, by failing adequately appellant’s failure hearing inadequate briefing, in her tion or for present brief, question then a difficult complaint presents has forfeited her as to the it parent impression needing for the costs of first resolution inclusion county-jail prior her confinement nity supervision making for his
3. The Code that a include is amends any "reparation” wrong against society, possible the amount of owed trial order of reimbursement defendant. See Tex. Code Crim. Proc. court's . 23(a). § for that incarceration could be classi- The reimbursement at issue reparation. appeal possibly fied an order of It is also in this fit within the however, broadly possible, reparation intend- understood definition of the word solely and was "reparation,” which is undefined in the Code. ed for the victim of an offense Dictionary "reparation” merely phrasing restitution. Black's Law defines an alternative necessary making wrong.” to examine all the extra- as the "act of amends for a (10th 2014). to answer the wheth- ed. textual factors Dictionary Black’s Law reparations type Because a defendant sentenced to confine- er include this of reimburse- as a condition of commu- ment. ment comments, join majori- these With
ty opinion. parte Maria A. MARTINEZ.
Ex
No. 14-14-00253-CR. Texas, Appeals
Court (14th Dist.).
Houston 2014.
Discretionary Review Refused
Feb. 2015.
Rehearing Denied Mar.