Opinion issued June 25 , 201 2

In The 

## Court of Appeals For The 

## First District of Texas

____________ NO. 01
- 11
- 00819
- CR

____________ WALTER BUSBY , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 400 th District Court Fort Bend County, Texas Trial Court Cause No. 10
- DCR
- 055977

MEMORANDUM OPINION2

Appellant , Walter Busby , appeals the trial court’s denial of his pretrial applica tion for a writ of habeas corpus. See T EX

. R. A PP

. P . 31.
We affirm

. Background Appellant is charged with the offense of driving while intoxicated (DWI).
See T EX

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. § 49.04 (West Supp. 2011)

. The State alleges that appellant has been twice previously convict ed of DWI, which elevates the instant
offense to a third

- degree felony. Se e id. § 49.09(b). Appellant has been released on $15,000 bond and awaits trial. The trial court required, as conditions on his bond, that appellant report to the Fort Bend County Community Supervision and Corrections Department, Pre Trial
Se rvices Division, (“Department”); that he submit to rando m alcohol and drug testing; that he install a breath analysis mechanism on his vehicle ; and that he pay fees to the Department for monitoring his compliance with the conditions. On August 5, 2011 , the Department moved the trial court to modify th e conditions of appellant’s bond to include a “Supervision/Administrative F ee ” of $ 40.00 per month as a bond condition , payable each month until appellant’s case i s disposed.3

A t the hearing on the motion, appellant argued that the Department was “attempting to extract a fee” that it lacked statutory authority to impose. As discussed in more detail below, t he State responded that Texas Government Code
sections 76.011 and 76.015 1 authorize the Department to charge a fee for bond
sup ervisio n
. The trial court concluded that the statutes are bro ad enough to
authorize the fee . The trial court further concluded that, because it had imposed conditions on appellant’s b ond and had asked the Department to monitor appellant
for com pliance wi th those conditions, the court would have to revoke the bond for the safety of the community if the Department is without the resources to monitor appellant’s compliance

. The trial court granted the motion and ordered that the fee be a condition on appell ant’s bond, beginning on the date of the order and continuing each month until appellant’s case is disposed. A ppellant paid the fee. Appellant then f

iled an application for a writ of habeas corpus , chal lenging
the trial court’ s authority to impose the pre trial supervision fee as a condition on his
bond

. Appellant asserted that he is confined by the imposition of the fee, which is an “unlawful and unauthorized” payment requirement to the Department , and that
the fee constitutes a punish ment that violates d ouble jeopardy protections.

1 T EX

. G OV ’ T C ODE A NN

. § 76.011, .015 (West Supp. 2011).4

At the habeas hearing, appellant conceded that Government Code section s 76.011 and 76.015, as amended effective September 1, 2011, now authorize the Department to assess “some fees for” its pretrial services. Appellant complained (1) that any supervision fees charged by the Department are nevertheless predicated

on a showing of actual costs , which the Department has not done , and (2) the $40.00 fee charged to appellant on August 5, 2011, which was prior to the statutory amendments, remains un authorized. T he trial court denied re lief

. Standard of Review A pre trial writ of habeas cor pus is appropriate only in limited circumstances. Ex parte Smith , 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). The writ may be
used to challenge the manner of pre trial restraint ( i.e. , t he conditions of bail). Id.
A trial court’ s denial of pretrial habeas corpus relief is immediately appealable. Id. Ordinarily , w e review a trial court’ s denial of habeas corpus relief
under an abuse of discretion standard. Ex parte Wheeler , 203 S.W.3d 317, 326 (Tex. Crim. App. 2006); Ex parte Necessary , 333 S.W.3d 782 , 787 (Tex. App.

— Houston [1st Dist.] 2010 , no pet. ). W e view the evidence in the light mo st
favorable to the trial court’ s ruling. Wheeler , 203 S.W.3d at 324; Necessary , 333
S.W.3d at 787

. We afford almost comple te deference to the trial court’ s determination of historical facts supported by the record, especially when those5

factual findings rely upon an ev aluation of credibility and demeanor. See Necessary , 333 S.W.3d at 787. Likewise, we afford the same deference to the trial court’s rulings on application

- of

- law

- to

- fact questions , if the resolution of those ultimate questions turns on an evaluation of cr edibility a nd demeanor. Id. However, if the resolution turns on an application of legal standards, we review the determination de

novo. Id

. Here, a ppellant asserts that the trial court misapplied the law . Hence , we review the trial court’s denial of pretrial habeas relief de novo. See id. Applicable Law Prior to September 1, 2011, Texas G overnment Code section 76.011 authorized a community supervision and corrections department to o perate a
program for the supervision and rehabilitation of persons in pretrial intervention
pr ograms. 2 As amended, effective September 1, 2011, language was added to
Government Code section 76.011 to expressly provide that a community supervision and corrections department may also operate programs for the super vision of persons released on pretrial bail under Code of Criminal Procedure Chapter 17 , as

2 See Act of April 25 , 1995, 74th Leg., R.S., ch. 76, § 7.11, 1995 Tex. Gen. Laws 580, 583 , amended by Act of May 19 , 2011, 82nd Leg., R.S., ch. 419, § 1, 2011 Tex. Gen. Laws 1092, 1092

– 93 (current version at T EX

. G OV ’ T

. C ODE A NN

. art. 76.011 (West Supp. 2011)).6

here

. T EX

. G OV ’ T C ODE A NN

. § 76.011(a)(2) (West Supp. 2011) ; see T EX

. G OV ’ T C ODE A NN

. § 76.002 (West Supp. 2011) (establishing “departments”); see also T EX

. C ODE C RIM

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. Ch. 17 (West 2005 & Supp. 2011) ( governing bail, including pretrial bail ). Both before and after the amendments, Government Code Section 76.015 has
allowed a community supervision and corrections department to assess an administrative fee , as follows: (a) A department may collect mon ey f rom an individual as ordered by a court served by the department regardless of whether the individual is under the department’s supervision. (b) A department that collects money under this section shall promptly transfer the money collected to the appropriate county or state officer. (c) A department may assess a reasonable administrative fee of not less than $25 and not more than $60 3 per month on an individual who participates in a program operat ed by the department or receives services from the department and who is not paying a fee under Section 19, Article 42.12, Code of Criminal Procedure [governing community supervision]. T EX

. G OV ’ T C ODE A NN

. § 76.015 (West Supp. 2011). Analysis
The trial co ur t required, as conditions on appellant’s pretrial bond, that he report to the Department, that he submit to random alcohol and drug testing, that he install a breath analysis mechanism on his vehicle, and that he be monitored for compliance by the Depart ment

. S ection 76.015(c) expressly authorizes the

3 The prior version limited the fee to $40.00.7

D epartment to impose an administrative fee between $25.00 and $60.00 per month
on an individual , as here, who receives services from the Department. See id. The record shows that the Department sought to assess against appellant a “Supervision/Administrative Fee” of $ 40.00 per month and that it moved the trial court to make payment of the fee a condition of appellant’s bond. T he trial court granted the Department’s motion and made the payment of the fee a condition on appellant’s bond

. “ It is well established that courts have the inherent power to place restrictive conditions on the granting of bail

. ” Ex parte Anuno bi , 278 S.W.3d 425, 427 (Tex. App.

— San Antonio 2008, no pet.); see Ex parte Anderer , 61 S

. W.3d 398, 401

– 02 (Tex. Crim. App. 2001)

. At the habeas hearing , appellant conceded that section 76.015, as amended,
authorizes the Department to impose a fee. Appellant complained, however, that the amount of the fee, $40.00, was arbitrarily set and that, pursuant to Code of
Criminal Procedure article 102.012, the Department was required to present
evidence of “ actual costs. ” Article 102.012 governs f ees for p articipation in pretrial intervention
p rograms
. T EX

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. P ROC

. A NN . art. 102.012 (West Supp. 2011)

. Appellant does not assert, and n othing in the record before us suggests , that he is involved in a pretrial intervention program. The Pretrial Inte rvention Interview8

Report in the clerk’s record reflects that appellant was “not approved.” T he reporter’s record of the hearing on the motion to modify the conditions of appellant’s bond, which was admitted at the habeas hearing, reflects that appellant’ s counsel explained to the trial court that a pretrial intervention program involves a written agreement between a defendant and a prosecutor, pursuant to which the defendant agrees to perform conditions imposed by the prosecutor in exchange for the prosec utor agreeing to dismiss the case. Counsel asserted that appellant is not in a pretrial intervention program. Hence, article 102.012 , which governs pretrial intervention programs, does not apply. Further, the “actual costs” language was
eliminated from the statute in the 2005 amendment

. 4 Appellant has not demonstrated that he is entitled to habeas relief on this point. Next, appellant complains that the Department had no statutory authority to
assess the fee against him on August 5, 2011 because the p rior version of section
76.011 did not provide for pretrial supervision programs.
Prior to being amended effective September 1, 2011, Government Code
section 76.011 (a) provided that “[t] he department may operate programs for the

4 See Act of June 18 , 1990, 71st Leg., 6th C.S., ch. 2 5, § 20, 1995 Tex. Gen. Laws 108, 126 , amended by Act of May 5 , 2005, 79th Leg., R.S., ch. 91, § 2, 2005 Tex. Gen. Laws 150, 150 (current version at T EX

. C ODE C RIM

. P ROC

. A NN . art. 102.012 (West Supp. 2011)).9

supervision and rehabilitat ion of persons in pretrial intervention programs. ” (emphasis added). A t the hearing on the motion, the transcript of which was admitted into evidence at the habeas hearing, a ppellant argued that the statute authorized the Department to operate pretrial in tervention programs , but it did not authorize the Department to operate programs to monitor defendants on pretrial supervision , as is appellant

. Thus, argued appellant, there was no authorization for the Department to charge the fee provided under section 76.015. See T EX

. G OV ’ T C ODE A NN

. § 76.015(c).
We do not reach the issue of the August 5, 2011 fee. To be entitled to habeas relief, an applicant must be illegally restrained

. Headrick v. State , 988 S.W.2d 226,
228 (Tex. Crim. App. 1999 ). Habeas corpus relief is not appropriate when a resolution of the question presented, even if resolved in favor of the applicant, would
not result in his immediate release . Id. Here, even if we were to resolve in appellant’s favor the question of whether the fee charged and paid August 5, 2011 was statutorily authorized, such outcome would not result in his release. Finally , by his petition for habeas relief, appellant asserted that the trial
court’s action of making the payment of the adm inistrative fee a con dition of his
bond violated protections against double jeopardy because appellant was being10

punished before being tried for the offense. Appellant did not develop this argument in his application or at any hearing in the record before us.
Conclusion
We cannot conclude that the trial court err ed by denying appellant’s application for a pre trial writ of habeas corpus. Accordi ngly, we affirm the trial
court’ s order.

Laura Carter Higley Justice

Panel consists of Justices Higley , Sharp, and Huddle

. Do not publish. See T EX

. R. A PP

. P. 47.2(b).