San Antonio Violation of Probation ATTORNEY

The ”Ability to Pay” Statute in Texas

The State must also carry its burden under Article 42.12, section 21(c) of the Texas Code of Criminal Procedure to prove the defendant had the ability to pay all court-ordered fees.

Section 21(c), also known as the “ability-to-pay statute,” provides that when the only allegation at a community supervision revocation hearing is that the defendant failed to pay fees or court costs, the State must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge. Tex. Code Crim. Proc. Art. 42.12 § 21(c).

The ability-to-pay statute was addressed in Gipson v. State, 383 S.W.3d 152 (Tex. Crim. App. 2012), in the context of a probation revocation hearing where the trial court revoked Gipson’s probation based only on his plea of true to an allegation of failure to pay. The Texas Court of Criminal Appeals reversed and remanded the case for the court of appeals to determine, inter alia, whether the ability-to-pay statute applies to unpaid amounts that are not explicitly listed in the statute. Id. at 158.

After the cases was remanded, the Court of Criminal Appeals held that the plain language of section 21(c) applies only when the State alleges violations of probation based on failure to pay specific fees and costs enumerated in the statute, not when the State alleges violations based on failure to pay fines. Gipson v. State, 428 S.W.3d 107, 108 (Tex. Crim. App. 2014) (“Gipson II”). The court noted that the Texas Legislature easily could have included the word “fines” in the language of the statute if it wished to include them and that fines, unlike fees and costs, are punitive in nature, not remedial. Id. at 108–09.

Due Process Violations in a Probation Revocation Hearing

In the dissenting opinion in Sneed v. State, 493 S.W.3d 218, 221 (Tex. App. 2016), the court noted the “common practice for Texas trial courts to hear a motion to revoke probation, take the motion under advisement, hold the motion in abeyance, and, essentially, let the probationer’s post-hearing conduct determine whether to grant or deny the motion on one or more of the grounds alleged in the motion to revoke.”

In these types cases, the appellate courts have held that this procedure constituted a denial of due process:

It is clear … that a probationer can no longer be denied due process in reliance on the dictum … that probation is an “act of grace.” “Getting a break,” the Texas version of “act of grace,” is no more a reliable dictum for denial of due process.

This Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a “right” or as a “privilege.” Whether any procedural protections are due depends on the extent to which an individual will be condemned to suffer grievous loss. The question is not merely the weight of the individual’s interest, but whether the nature of the interest is one within the contemplation of the “liberty or property” language of the Fourteenth Amendment.

Rogers v. State, 640 S.W.2d 248, 253–54 (Tex.Crim.App.1982) (op. on reh’g) (citations and selected quotation marks omitted).

After conducting a hearing on the violation of probation, a trial court’s options regarding someone on community supervision are limited by the legislature. The Texas legislature in Tex.Code Crim.
Proc. Ann. art. 42.12, § 21(b–2) (West Supp.2015) has specifically required that after a hearing, a trial court may only “continue, extend, modify, or revoke” the community supervision.

But the legislature has not given the trial court authority to revisit a disposition with no new allegations as explained in Tex.Code Crim. Proc. Ann. art. 42.12, § 21(b–2) (West Supp.2015):

The court having exercised its authority at that earlier hearing by modifying the terms of probation instead of revoking probation, it was clearly without authority to change that disposition at a subsequent hearing at which no further violation of probation was shown.

Therefore, it is a denial of the constitutional right to due process if the trial court considers the original allegations despite the trial court’s intervening amendment of his conditions of community supervision. Although an object to that due process violation must be raised at the hearing before relief will be granted on appeal.

Habeas Corpus in Community Supervision Cases

When a defendant seeks relief from an order or a judgment of conviction ordering community supervision, a post-conviction application for habeas corpus can be filed under article 11.072 of the Texas Code of Criminal Procedure.

Habeas applications in community supervision cases are designed to permit the defendant to challenge:

1. The validity of the conviction or order in which community supervision has been imposed;
2. The legality of the special conditions of community supervision imposed.

The application for habeas corpus in a community supervision case is first presented to the trial judge to decide whether relief should be granted or denied. Either side can appeal the trial judge’s order that either grants or denies the application for habeas corpus in a community supervision case.