## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

NO. PD-0536-13

JOHN KENT MATHIS, Appellant

v.
THE STATE OF TEX AS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS

ROCKWALL COUNTY

C O C H R A N , J., announced the judgm ent of the Court and delivered an opinion in w hich W O M A C K , J O H N S O N , and A L C A L A , JJ., joined. K E L L E R , P.J., filed a dissenting opinion in w hich K E A S L E R and H E R V E Y , JJ., joined. M E Y E R S , J., filed a dissenting opinion in w hich K E L L E R , P.J., and K E A S L E R and H E R V E Y , JJ., joined. P R IC E , J., concurred
. O P I N I O N
This case raises the ol d a d age that y ou can’t get blood f rom a turnip. The court of appeals m odif

ied the trial court’s judgm ent to delete the requirem ent that appellant pay f or a SCRAM device, concluding that a trial judge m ay not, over objection, order an indigent 1

Mathis v. State , 397 S.W .3d 332, 341 (Tex. App.–Dallas 2013). 1Mathis Page 2

def endant to pay f

or a SCRAM device as a term of his probat i o n w i t h o ut considering his
f inancial ability

. W e agree that the trial judge did not actually “consider” appellant’s ability

2

to pay f or a SCRAM device at the tim e of sentencing. But we disagree that the rem edy is to
sim ply delete t h e requirem ent. Instead, we will rem and this case f or the trial judge to be

g i v e n an opportunity to consider appellant’s f inancial ability in deciding whether, at t h i s
tim e, to order appellant to pay f or a SCRAM device.

I.
W hen appellant was arrested and charged with sexual assault, he f illed out a f

inancial
af f idavit indicating that he was indigent. He was a 48-y ear-old carpenter who had lost his job a m onth earlier and was living in his f orm er wif e’s hom e with two of his children. He

swore that had no cash, no cred i t , n o i n c o me, no real estate, no car, and he paid no rent, utilities, or other m onthly bills. Given his indigency , the trial judge appointed him a lawy er,
and granted his requests f or investigative and expert witness f ees. The trial judge set bail at $250,000, so appellant rem ained in jail f or seventeen mont

hs until his trial.
Th e j u r y f

ound appellant guilty of sexual assault and sentenced him to ten y ears’ probation and an unprobated $10,000 f ine. The trial judge sentenced appellant in accord with
the jury ’s verdict, but he added the requirem ent of conf inem ent in an Interm ediate Sanction

The State’s sole g round for revie w re ads as f

ollows: 2 A probationer ag ree s to wea r a SCR AM device as a rea sonabl e co n d i t i on of community

supervision under A rticle 42.12 § 11(a ) of the Tex as Code of Criminal Procedur e. How then did the trial court abuse its discr etion, as the court of appea ls conclude d in construing § 11(b), when it did “conside r” the probationer ’s ability to pay for the SCRAM device ?Mathis Page 3

Facility (ISF) f

or six m onths to treat alcohol issues. At t h e s e n t e n cing hearing, the prosecution recom m ended, and the trial judge ordered, that appellant be f itte d w i t h a
SCRAM device once he was released f rom the ISF. Def

ense counsel objected to requiring 3 appellant to pay f

or the SCRAM device because appellant was, and had been, indigent f or so long. The trial court seem ed to understand the dilem m a:
I don’t know that there is

– I g e t y o u r point that as soon as he gets out six
m onths f rom now or whenever it is, and he’s already been in jail, that we don’t want him to be im m ediately in violation because he can’t a f f o r d t o do those things.

B u t t h e n t h e judge sim

ply said that “he needs to work with probation on those m atters”
because “[ t]hey ’re the ones that recom m ended the m onitoring to him .” The written term s of probation m ade appellant wear and pay f or t h e S C R A M d e vice f

or the f irst two y ears of probation.
Af ter sentencing, appellant once again f illed o u t a f

inancial af

f idavit of indigency

. Once again, he had zero assets and no job, having spent t h e p r e v i o u s seventeen m onths in jail. Appellant’s sister wrote a letter to the judge stating that appellant is b l i n d i n o n e ey e
f rom a nail-gun accident and that he was in need of “serious and im m ediate m edical attention

to care f or his hereditary gl a u c o ma a n d c ataracts to save his ey esight in his one rem aining

ey e.” She requested that appellant be released during the pendency of his appeal so that he

“Secur e Continuous Remote Al co h o l Monitor.” A SCR AM device is a brac elet that a 3 defe ndant wears that continuously measure s alcohol t h at i s eli minated t hroug h the s kin. See e.g., Alvarez v. State , No. 08-11-00160- CR, 2013 WL 1760809, *1-2 (Tex. App.– El Paso April 24, 2013) (not desig nated for publication) (setting out expert testimony about opera tions of a SCR AM brac elet).Mathis Page 4

could get quality m edical attention. But the trial judge set an appeal bond at $250,000, so 4 appellant has remained in jail while this case was on appeal.
The Bill of Costs shows that appellant was charged with $219.00 b a s i c c ourt costs, $100.00 child-sexual-assault court costs, $34.00 f or a DNA Probation f

ee, $25.00 f

or Crim e Stoppers, a late pay

m ent f ee of $25.00 (if he could not pay the bill of costs within 30 day s
of sentencing), a $ 1 0 , 0 00.00 f ine, and $58.19 in restitution. A later docum ent ordered

a p pellant to pay $6,675.00 f or his appointed lawy er at trial. The term s of his probat i o n 5 required appellant to pay the $10,461.19 of f ines and court costs (not including the attorney ’s
f ees) at a rate of $90 each m onth, beginning on Decem ber 1, 2011. His probation term s also

6

included an additional $50.00 per m onth com m unity supervision f

ee and a $5.00 per m onth
f ee f or urinaly sis testing. Ad ditionally , appellant was ordered to attend and com plete an Alcohol/Drug Assessm ent Program within 45 day s, the undeterm ined costs o f w h i c h appellant was to pay
. Also, appellant was required to pay a sex-of f ender supervision f

ee in
the am ount of $600.00, pay able at $5.00 per m onth. Finally , appellant was required to secure

She explained that she had boug ht a condominium for appellant to use once he was rele ased 4 from jail and that, whe n he obtained a job, he could beg in to pay her ba ck for

it. Appellant complained on appea l that he could not be order ed to pay attorney ’s fee s beca use 5 he was indige nt befor e, during , and afte r trial, but the court of appea ls reje cted his claim beca use his appointed attorney had not objected at trial to the assessment of the as-y et-unde termined attorney ’s fee s. Mathis , 397 S.W .3d at 341 (noting that, when trial judge “orde red appellant to ‘re imburse all court costs in this case , including attorney ’s fee s for y our court-a ppointed attorney [,] ’” appellant did not object and ther efor e did not prese rve tha t issue).
The rec ord contains a “Certific ate that Def endant I s in Custody ” signe d on J anuar y 6, 2011, 6 so appellant ha d not y et beg un his six -month incarc era tion at the I SF.Mathis Page 5

a SCRAM ankle m onitor, m aintain it f or the f irst twenty -f

our m onths of his probation, and

pay “all costs associated with the SCRAM m onitor.”

In all, appellant was ordered to pay $10,461.19 in f ines and court costs; $6,675.00 in
attorney s f

ees; $600.00 in sex-of

f ender supervision f

ees; and $6,000.00 in probation supervision f

ees f or a total of $23,736.19 over the lif e of the ten-y ear probation or an average
of nearly $200.00 a m onth. On top of that, appellant was ordered to pay the undeterm ined

am ounts f

or both t he Alcohol/Drug Assessm ent Program and the SCRAM device. 7 Appellant was also ordered to perf orm 140 hours of

com m unity service.
The court of appeals held that appellant had properly preserved his com plaint that he

was indigent and could not af f ord to pay f

or a SCRAM device; theref ore, it m odif

ied the trial
court’s judgm ent to delete the conditio n t h a t appellant pay f or the costs of the SCRAM
device. The court noted that (1) the trial judge m ay require a p p e l l a n t t o w ear a SCRAM

8

device “if it does so in a way other than requiring him to pay the costs f or it”; and (2) the trial judge could order appellant “to pay f or the SCRAM device in the f uture if there is evidence
of appellant’s ability

to pay .” The State appealed that modification.

9

I n one Texas case , the court of appea ls, in deleting the require ment that the defe ndant pay 7 for a SCR AM device , noted that the cost of monthly monitoring, in that jurisdiction at that time, was $360.00. See Damron v. State , No. 2-08-399- CR, 2010 WL 1006392, *1 n.6 (Tex. App.–For t Worth Marc h 18, 2010, no pet.) (not desig nated for publication) (whe n undisputed evidenc e at trial showed that he was “unable to pay ,” trial cour t co u l d n o t require an indige nt DWI defe ndant to pay for SCR AM device as a c ondition of probation; noting that SCRAM fees we re $360 a month).
Mathis , 397 S.W .3d at 342. 8
Id. 9Mathis Page 6
II.
Under Article 42.12, the trial judge has authority to set the conditions of com m unity supervision. The Legislature has granted wide authority to the trial judge by s t a t i n g t h a t

10 “[ c]onditions of com mu n i t y s upervision m ay include, but shall not be lim ited to, the

c o n d i t ions that the def

endant shall

. . .” and then listing num erous possible “b a s i c ”
conditions. One perm issible condition is subm ission to electronic m onitoring. Ordering

11 12 that a probationer wear a SCRAM device is a permissible probation condition.

A trial judge m ay not require a def endant to m ake any m onetary pay m ents as a term
of com m unity supervision except those f or “f ines, court costs, restitution to the victim , and

o t h e r conditions related personally to the rehabilitation of the def endant or otherw i s e expressly authorized by

law.” 13

W henever m onetary pay

m ents are proposed as a term of probation, “[ t]he court shall
consider the abil i t y o f the def endant to m ake pay

m ents in ordering the def endant to m ake

pay m ents under this article.” This provision is m andatory : the trial judge must consider the 14

T E X

. C O D E C R

I M

. P R O C . art. 42.12, § 11(a ). 1 0
Id. § 11(a) (1)- (24). 1 1
Id. § 11(a) (17). 1 2
Id. § 11(b). 1 3
Id. 1 4Mathis Page 7

def endant’s ability to pay bef ore im posing m onetary conditions as a condition of probation. 15

The Texas Legislature, like the United States Suprem e Court, is “sensitive to the treatm ent
of indigents in our crim inal justice sy stem ,” and this provision ref lects that sensitivity . It 16

is a statutory r e c o g n i tion that the crim inal-justice sy stem m ay not punish people f or their
poverty and that probation is not me r e ly f or the rich. Thus, trial judges are statutorily

17 required to consider a probationer’s f ina n c i al ability to pay f

ees and costs associated with probation conditions bef

ore im posing such requirem ents.
W e have not directly addressed the question of precisely how and to what d egree a
trial judge m

ust “consider” a probationer’s f inancial ability

. But, in Ex parte Gonzales , we

sta t e d t h a t i f a trial judge “ignores the def endant’s ability to m ake pay m ents, whether the

See, e.g., Luquis v. State , 72 S.W .3d 355, 363 & n.17 (Tex. Crim. App. 2002) (“[U]se of 1 5 the word ‘ shall’ g ener ally indicates a

mandatory

duty .”).
Bearden v. Georgia , 461 U.S. 660, 672 (1983) (holding that a sentenc ing court could not 1 6 revoke probation for a failure to pay a fine or make restitution absent evidenc e and finding s that the probationer willfully failed to pay and that alterna tive forms of punishment would be inadequa te to meet the State’s interests). I n Bearden , the Supreme Co urt explained that the rea son for a probationer ’s nonpay

ment is crit i ca l

. “I f the probationer has willfully ref used to pay the fine or restitution when he has the means to pay , the State is perf ectly justified in using imprisonment as a sanction to enfor ce c ollection.” Id. at 668.
See id. at 671 (not i n g t hat the State may not justify incar cer ating a probationer who has 1 7 made bona fide eff

o rt s t o p ay restitution by “lumping him toge ther with other poor persons and there by classi fy ing him as dang erous. This would be littl e more than punishing a person for his poverty .”) (footnote omitted); see also In re Antazo , 473 P.2d 999, 1003-04 (Cal. 1970) (an indige nt p ro b ationer order ed to pay a fine may not be imprisoned beca use he cannot immediately pay t h at fine; “[W ]hen a fine in the same amount is imposed upon code fe n d an t s d eemed equally culpable with the added provision f or their imprisonment in the event of its nonpa y ment, an option is g iven t o t h e ri ch defe ndant but denied to the poor one. Whil e the poor man has the ‘rig ht’ to o b t ai n h i s rele ase by pay ment of the fine , in actuality the ‘rig ht’ is meaning less to him.”).Mathis Page 8

pay m ents are a condition of proba t i o n or f or the costs of one’s legal def ense, it is possible
that a def endant m ay be im

prisoned solely due to his indigent status.” W e noted that the 18
United States Suprem e Court, in addressing an Oregon recoupm ent statute, stated that “‘[ t]he

court shall not sentence a def endant to pay costs unless the def endant is or will be able to pay

t hem ,’” and concluded that our Texas recoupm ent statute “should operate in the s a me

19

m anner.” T h u s , “the trial court’s power to order reim bursem ent should be lim ited to the 20

extent a def

endant is reasonably

able to do so.” 21 Although we have not spoken directly to the issue of how m uch or to what degree a
trial court m

ust “consider” a probationer’s ability to pay f e es and costs, one lower Texas
court, in Pennington v. State, explained that this provision “does not m andate that t h e

Ex parte Gonzales , 945 S.W .2d 830, 833-37 (Tex. Crim. App. 1997) (def endant who was 1 8 held in contempt for failing to make court-or dere d pay ments for her appointed appellate counsel was entitled to habea s-cor

pus relief beca

use trial court did not consider her abil i t y t o make pay ments befor e order ing her confine d for the failure to pay ). Texas law forbids such imprisonment. Article 43.03(d) provides that, if a defenda nt or probationer who is order ed to pay a fine or costs def aults in pay ment, the trial judge may not order the probationer confine d unless he conducts a hear ing and makes a written dete rmination that (1) the defe ndant is not indige nt a nd has failed to make a g ood faith eff ort to discharg e the fines a

nd costs; or (2) the def

endant is indig ent and: (A) has failed to make a g ood faith ef fort to dischar g e the f

ines and costs under Article 43.09( f); and (B ) could have discharg ed the fines and costs under Ar t i cle 43.09 without experiencing any

undue har dship. T E X

. C O D E C R

I M

. P R O C

. art. 43.03(d). I t is this “undue hardship” test that statutorily limit s the trial judge ’s ability

to impose fines, costs, restitution, attorney ’s fe es, and othe r proba tion fees.
Gonzales , 945 S.W .2d at 834 (quoting Fuller v. Ore gon , 417 U.S. 40, 43 n.5 (1974)). 1 9
Id. 2 0
Id. 2 1Mathis Page 9

pay m ents be within the f

inancial m eans of the probationers” because the probationer could 22
request extensions if necessary
. That decision, however, both pre d a t e d o u r discussion in 23
Gonzales and did not involve an indigent p r o b a t i o ner. Furtherm ore, Pennington is 24

c o n s i s tent with Gonzales to the extent that the trial judge has the discretion to assess probationary pay

m ents that are above a probationer’s present incom e m inus living expenses,
if those pay

m ents are within lim its that t h e p r o b a t i o n er is “reasonably able” to pay
. As
Article 43.03(d) suggests, an indigent probationer should not be assessed pay m ents that
would cause him

“undue hardship.” 25

Bef ore a trial or appellate court can “consider” a def endant’s ability to pay proposed

p a y me n t s , the def

endant m ust provide evidence to support any claim that he is unable t o

m ake such pay

m ents without undue hardship. He should provide evidence of all assets and
incom e as well as evidence of liabilities and living expenses so that the trial judge m ay

com pare one with the other and m ake any appropriate adjust m ents. In the case of

indigent
def endants being placed on com m unity supervision, the trial judge will undoubtedly require

Pennington v. State , 902 S.W .2d 752, 754 (Tex. App.–For t Worth 1995, pet. ref’d)

. 2 2
Id

. (“Clea

rly , the trial court evalua ted Pennington’ s other fi n an cial obliga tions and 2 3 considere d his probationar y status. The trial court rec og nized the net eff ect of Pennington’ s inability to pay by the end of the two-y ear probationar y period would potentially be g rounds for an extension of time in which to pay

the re stitut ion.”).
Id. at 754-55 (setting out discussion betwee n judge and defe ndant conce rning defe ndant’s 2 4 income and financ ial obliga tions; trial judge expli citly noted that defe ndant “will n ee d t o l ive on something” and acknow ledg ed that, if defe ndant “doesn’ t make that much” to cover monthly pay ments, “That’ s why

we ha ve extensions”).
T E X

. C O D E C R

I M

. P R O C . art. 43.03(d) (2)( B)

. 2 5Mathis Page 10

the def endant to obtain a suitable job, so the def endant, prosecutor, or probation departm ent

m ay of f er evidence of the likely range of anticipated incom e, as well as likely living expenses or other liabilities, such as child support orders. 26

III.

I n the present case, the court of appeals held that appellant was indigent, pres e n t l y incarcerated, and did not have any f inancial ability

to pay the m onthly

cost of the SCRAM device. It explained,
The undisputed evidence at the sentencing hearing showed appellant had been incarcerated the previous sixteen m onths and would be incarcerated f or at least six m onths while com

pleting the ISF program
. This evidence established that, at least as of the tim e of the sentencing hearing and upon his im m ediate release f rom ISF, appellant did not have the ability to pay f or the SCRAM device. C o n s e q uently , we conclude the trial court abused its discretion by requir i n g appellant to pay

f or the SCRAM device. 27

In its Brief on discretionary review, the State argues that appellant f ailed to produce

any af f irm ative evidence at the sen t e n c i ng hearing that he could not pay f or the SCRAM

m onitoring. It claim s that counsel’s unsworn statem ents to the trial judge are not evidence.

28

That m ay be true, but appellant’s two sworn af f idavits of indigency , plus the undisputed f act
that he was appointed counsel both at trial and on appeal are som e evidence of his continuing

I n this c ase, appellant had outstanding, unpaid order s for child support pay ments, but we 2 6 offe r no opinion on whether pay ment of those order s should take prec edenc e over pay ments assessed
as a c ondition of community supervision.
Mathis , 397 S.W .3d at 342. 2 7
State’s B rief a

t 15. 2 8Mathis Page 11

indigency and present inability to pay f or the SCRAM m onitoring. Second, the State argues
that the trial judge could not abuse his discretion because the costs of a SCRAM device were

not legal services provided. Although the latter pro p o s i t i o n –SCRAM pay m ents are not 29 legal f ees–is undeniably true, we f ail to see how the f

orm er proposition–a trial judge does not

a buse his discretion–f

ollows. The trial judge is required to consider the probat i o n e r ’ s
f inancial ability whenever he orders pay m ents under Article 42.12, not just when he orders

pay m ents f or attorney ’s f

ees. The State notes that appellant has f ailed to show that he would
be im prisoned f or f ailing to pay f

or the SCRAM device as pay m ent im m ediately becam e due,
but appellant notes that “the m onitor costs are pay able to the third-party corporate provider
b e g i n n i n g t h e f

irst m onth and there is no reason to suppose that the m onitor would be provided without pay

m ent.” 30
Third, the State claim s that the trial judge did, in f act, “consider” appellant’s ability

to p a y fo r t h e SCRAM m onitoring, because he stated that he understood appellant’s argum ent
that he was currently indigent and w o uld rem ain so until af ter he was released f

rom custody

. The trial judge m ay have recognized the problem , but the present record does not

31

State’s B rief a

t 17. 2 9 Appellant’s Brief at 7. T h e rec ord does not ref lect how much t he S CRAM device costs 3 0 to install or what the monthly monitoring cost is. The rec ord does not show whether the probation depar tment pay s the costs of the SCR AM device and then bills the defe ndant (and, if so, whether an indige nt defe ndant may obtain an extension if he cannot pay immediately ), or whether the SCR AM devic e p ro v i d er require s pay ment befor e ins tallation. These are matters that the t rial j udg e mi g ht well consider

in determining a proba tioner’s fina ncial ability

to pay for a SCR AM device

. State’s B rief a

t 10. 3 1Mathis Page 12

support a conclusion that he “considered” a p p e l lant’s indigency when he sim ply ordered appellant to “wor k with probation” because “They ’re the ones who recom m ended the

m onitoring[ .]” Although the record shows that appellant was indigent both bef ore and af ter trial, that does not inevitably and necessarily m ean that he would rem ain indigent once he has
been released and is able to look f or a job.
The State relies on Pennington , discussed above , a n d C h a u ncey v. State , f

or the 32 proposition that the trial judge did consider appellan t ’ s f i n ancial ability in ordering the
SCRAM pay

m ents. But, as we have already noted, these cases were decided bef o r e o u r
decision in Ex parte Gonzales , which stated that trial courts should order pay m ents only if
the def endant is, or m ight becom e, reasonably able to pay them , and those cases did n ot
involve an indigent def

endant. A lthough one of the term s of probation is that appellant

33

“shall work f

aithf ully at suitable em

ploy m ent as f ar as possible,” and the trial judge m ay reasonably assum e that appellant will be able to obtain som e ty pe of carpenter job when he
is released f

rom the ISF, t h e r e i s nothing in the record that dem onstrates that he would be

837 S.W .2d 179 (Tex. App.– El Paso 1992), aff’d on other grounds , 877 S.W .2d 305 (Tex. 3 2 Crim. App. 1994).
I n Pennington , the evidenc e showe d that the def endant ha d a mont hly income of $3352, 3 3 he had debt-fr ee car s, and he w as sending his child to a private sc hool. The trial judg e re asonably found that he could tighten his belt, and, if he could not timely pay the restitution, he could ask for
an extension of his probat i o n
. 9 0 2 S .W.2d at 754-55. I n that case , “the trial court evalua ted Pennington’ s other financ ial obliga tions and consi d er ed his probationar y status.” Id. at 754. I n Chauncey , the evidenc e showed that the defe ndant had a household monthly income of $2800 and the court of appea ls expli citly found “nothing in the reco rd aff irmatively indicat[ing] he cannot comply with the conditions of probation as imposed[.] ” 837 S.W.2d at 184.Mathis Page 13

able to f ind a suitable job in the current m arket or that its likely incom e would allow him to
support him self without “undue hardship” and also pay $90 per m onth in restitution and court costs, over $6,000 in attorney ’s f ees, plus the m onthly

SCRAM f

ees. Finally , the State argues t h a t “ [ s ] i n ce ‘no law’ categorically prohibited it, the trial

court did not abuse its discretion in assessing the cos t s of a SCRAM device against [ appellant].” But the State m isreads th e statute. Article 42.12, §11(b) af f irm atively 34

m andates that the trial judge “shall consider” the probationer’s f inancial ability in assessing

any pay me n t s ; t h e S tate is attem pting to f

lip that statute into “need not consider” the probationer’s f

inancial ability

. This provision is like that in Section 13 of the sam e article, dealing w i t h DW I probations. There, under subsection (d), a DW I probationer m ay be required to participate in an alcohol-rehabilitation program and be ordered to “pay f or all or part of the cost of such rehabilitation based on the def end a n t ’ s a b ility to pay .” W e think 35

that a trial judge who orders the use of a SCRAM device (which is gen e r a l ly ordered f or
DW I probationers under Section 13) m ay order the def endant to pay all or part of the costs
of that device “based on the def endant’s ability

to pay .”
The court of appeals explained that the trial judge m ay still (1) order appellant to wear

a SCRAM device that is paid f or by the county ; or (2) m odif y the conditions of probation 36

Id. at 18. 3 4
T E X

. C O D E C R

I M

. P R O C . art. 42.12, § 13(d)

. 3 5 A $12 per diem cost of a SCRAM device is a signific antly

lower c ost to the county than 3 6 the approximate $65 per diem cost of keeping appellant in the Roc k wa l l C ounty J ail. SeeMathis Page 14

if appellant’s f

inancial status changes and order him to pay f or all or part of the costs of the
SCRAM device based upon his ability to pay at that tim e. But, if the trial judge conducts a hearing t o c o n s i d er evidence that supports a present f inding that the appellant will be able

to pay the SCRAM f

ees without undue hardship, then that condition need not be deleted. W e
theref ore reverse the judgm ent of the court of appeals and rem and the case to the trial court
f or f urther proceedings consistent with this opinion.

Delivered: March 12, 2014 Publish

h tt p :/ /w w w
. u s ma r s h a l s
. g o v / f o i a / I G A s

_ C a p

_ A g r e e m e n ts /t e xa s /r o c k

w e ll

_ c o u n ty

. p d f ( U

. S. M a

r s h a ll ’ s ag ree ment with county to pay $65 per diem for housing federa l priso n er s in the R ockwa ll County J ail).