# The Attorney General of Texas

May 18, 1982
MARK WHITE Attorney General

Supreme Court Building P. 0. Box 12543 Austin. TX. 78711. 2543 512/475G?501 Telex 9101874-1367 TelecOpiM

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An Equal Opportunity/ Affirmative Action Employer Mr. Ruben Torres, Chairman Texas Board of Pardons and Paroles P. 0. Box 13401,Capitol Station Austin,Texas 78711 OpinionNo. m-472

lk: Whether the Texas Board of Pardons and Paroles has authority to collector assist in the collection of fines, court costs and restitution
or reparation to victims from person eligible for parole or mandatory supervision

Dear Mr. Torres:

You ask several questions concerning the authority of the Texas Board of Pardonsand Paroles to collector assist in the collectionof fines, court costs and restitutionor reparation to thevictim, from a person eligible for release from the Department of Corrections on parole or mandatory supervision.

You first askwhether theboard is authorizedby section 15(g)of article 42.12 of the Code of Criminal Procedure to collect unpaid fines and court costs adjudgedagainst the defendantby the convicting court. In particular,you refer to fines adjudgedpursuant to chapter 12 of the Texas Penal Code, articles 1018, 1061-1082, and 1083, section 4 of the Code of Criminal Procedure, article 4413(29aa), section 9B(b).V.T.C.S.,relatingto the Commissionon Law Enforcement Officer Standards and Education, article 8309-l. section 14(b). V.T.C.S., the CrimeVictims CompensationAct.

In our opinion, the board lacks authority to collect fines or court costs. It has no express statutory authority to exercise such powers. Section 15(g) of article 42.12 of the Code of Criminal Procedure authorizes the board to adopt "reasonable rules not inconsistentwith law as it may deem proper or necessarywith respect to...~conditions to be imposed upon parolees and persons released to mandatory supervision." (Emphasisadded). However, article 1004 of the Code of Criminal Procedure expressly charges district and county attorneys, clerks of the district and county courts, sheriffs, constables, and justices of the peace with collecting money in the
name of the state. See Code Grim. Proc. art. 1001. Funds subject to article 1004 include71 fines, forfeitures, judgments and jury fees

p. 1650Mr. Ruben Torres - Page 2 (MW-472)

collected under any provision of the Code of Criminal Procedure. Article 4413(29aa). section 9B(c). V.T.C.S., and article 8309-1, section 14(c), V.T.C.S., provide that the costs due the state under those acts shall be collected along with and in the same manner as other fines or costs are collected in the case. See also Code Grim. Proc. art. 1083, 605. 11.

Articles 1001 through 1006 of the Code of Criminal Procedure expressly charge specific officerswith the duty of collecting fines and court costs, and also impose detailed reporting requirements on these persons. Any regulation purporting to authorize the board to collect finesand court costswould be inconsistentwith theseCode of Criminal Procedure provisions and therefore would be invalid. See - generally AttorneyGeneralOpinionH-1161 (1978).

You next ask whether the Board of Pardons and Paroles has authority to require, as a condition of parole or mandatory 5upervi5ion, that.the release.5 pay outstanding amounts of fines and court costs to the district clerk or other appropriate official or agency. 7'. ._s 2.

In our opinion, the board has authority to require that the release=pay such amounts. Section 2(c) of article~42.12of the Code of CriminalProceduredefinesparoleas the releaseof a prisoner from imprisonment for rehabilitation outside the prison walls under such conditions for disciplinary supervision as the board may determine. Section 20 gives the board the power and duty to make rules for the conduct,of persons placed in parole and released to mandatory supervision. Section 15(g)of article 42.12providesas follows:

The Boardmay adopt such other reasonablerules not inconsistentwith law as itmay deemproper or necessary with respect to... conditions to be imposed upon parolees and persons released to mandatory'supervision.... The conditions shall includethemaking of restitutionor reparationto the victim of the prisoner's crime, in an amount not greater than such restitutionor reparationas established by the court and entered in the sentenceof the courtwhich sentencedthe prisoner to his term of imprisonment. Acceptance, signing, and execution of the contractby the inmate to .be paroled shall be a precondition to release on parole.

See also Code Grim. Proc. art. 42.12, 512 (boardmay determinedegree of supervision a releasee should receive). The board has adopted a rule stating standard conditions of parole, such as reporting at

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intervals to the parole officer and working at a lawful occupation. 37 T.A.C. 5145.21 (1981).

Prior to 1977, section 15(g) did not refer to any specific conditions of parole. At that time, an amendment specifically authorized the board to include as conditionsof parole the making of reparationor restitutionto thevictim of the crime. Acts 1977, 65th Leg., ch. 347. §l, at 928. However,prior to the 1977 amendment, the board was empowered to require the inmate to accept all standard and customizedconditionsof parole. Cliffordv. Beto, 464 F.2d 1191 (5th Cir. 1972). Typical conditionshave included the requirement that a parolee secure his parole officer's permission before changing his place of residenceor employment, leaving the county or purchasingor operatingan automobile. Id. at 1195,n. 1; 37 T.A.C. 95145.21.149.1 (1981). The board has alsoprovided for the addition of "customized" conditions for the release of an inmate in some cases. Clifford v. Beto.supra, at 1195.n. 1; 37 T.A.C. 20145.21, 149.1 (1981).

Article 42.12 states that the terms of adult probation may include,but are not limited to, the payment of a fine, court costs, and restitutionor reparation,as well 55 other specified conditions. Sec. 6. This statute has provided for these conditions since its enactment in 1965. Acts 1965, 59th Leg., ch. 722, at 491. It seems reasonable that an inmate paroled from the Department of Corrections shouldbe subject to conditionsat least 55 stringentas those imposed
on an individual serving a probated sentence. See Code Grim. Proc. art. 42.12. $13, 3a (probationavailableonlywhe~maximum punishment assessed does not exceed ten years). In our opinion, board rules 'authorieinga condition that a releasee pay his fine and court costs would be "reasonable rules... with respect to... conditions" of probationormandatory supervision. Sec. 15(g). Of course, theboard may not require terms of payment that are at variance with those in the judgment. See Code Grim. Proc. art. 42.15. Even if an individual has not paid hisfine and court costs by the time he is discharged fromparole ormandatory supervision,thoseobligationswill remain in effectuntil dischargedpursuant to articles 42.15, 42:16 or 43.01 of the Code of CriminalProcedure.

You next ask whether, in cases where payment of outstanding fines, court costs, restitution or reparation would impose an unreasonableburden on a releasee, the board must order payment of an amount less than the total amount due. You are concerned that the individual'searning abilitywould not enablehim to completepayment during theperiod of parole ormandatory supervision.

The board is not authorized to recommend as a condition of release that a releasee make scheduled payments which the board has itself determinedwould be "an unreasonable burden" on the releasee.

p. 1652Mr. kuhen Torres - Page 4 (MW-472)

Article 42.12, section 15(f) of the Code of Criminal Procedure states in pertinentpart:

A parole shall be ordered only for the best interest of society.... A prisoner shall be placed on parole only when arrangementshave been made forhis employmentor for his maintenanceand care, and when the Board believes that he,is able and willing to fulfill the obligations of a law-abidingcitizen.

If the board does not believe that the potential releasee is able to fulfill the conditionsof release,parole under such conditionswould not be authorizedunder this section.

Section 15(g) of article 42.12 provides that the conditions of parole "shall include the making~ofrestitution or reparation to the victim of the prisoner's crime, in an amount not greater than such restitution or reparation as establishedby the court and entered in the sentence." (Emphasisadded). The boe&:is required to include the making of some restitution or reparation~tothe victims of the prisoner'5 crime. However, the legislature'suse of .thewords "not greater than" indicates that the legislature intended that the board could still recommend that an amount less than the amount established by the court be repaid over the period of the releasee's supervision
as a conditionof parole.

If theboard chooses to imposeconditionsrelating to thepayment of fines and court costs, it may require that only partial payment be made during the term of parole or mandatory supervision. However, in
cases where the Board of Pardons and Paroles chooses not to'require full payment of fines and court costs before the term of parole or supervision ends, those obligationsof course remain in effect until dischargedas permittedby the Code of CriminalProcedure.

You ask whether the board must show as a condition precedent'to revocation of parole or mandatory supervision, that the releasee had the ability to pay some or all of the amount which is not in fact paid.

A showing,thatthe release=had the ability to pay some or all of the amount~whichwas not in fact paid is,not a "condition precedent" to revocationof parole or mandatory supervision. However; a parolee would be allowed to show his inability to pay as .a circumstance mitigating against revocation under Ex parte Ates. 487 S.W.2d 353 (Tex. Grim. App. 1972). This case construed the 8upreme Court's holding in Morrissey v. Brewer, 408 U.S. 471 (1972),which set forth the due process requirements which must be met in a revocation of

p. 1653hr. Ruben Torres - Page 5 (MU-472)

parole. Part of these requirements are set forth in Ex part= Ates, supra, at 354:

RevocationHearing:

If desired by parolee such hearing should decide any contested facts and determinewhether they warrant revocation. Parolee should receive written notice of the claimedviolations and must have an opportunity to be heard and show that eitherhe did not violate the conditionsof parole
or that there were circumstances which mitigate against revocation. (Emphasisadded).

You next ask whether the board has authority to establish 55 a conditionof release thata release=make restitutionor reparationto the victim of the crime, where the judgment of the convicting court does not specifya dollaramount of such obligation.

The board may-notestablish a condition of release requiring the releasee tomake restitutionor reparation to the victim of his crime where the monetary amount of such restitutionor reparation cannotbe determined from the sentence. Such actionwould require the board to adjudge issues in the domain of the convicting court. In addition, such a condition could be contrary to the requirement in article 42.12, section 15(g) that the total amount of such restitution not exceed the amount establishedby the convicting court and entered in the sentence.

You next ask whether the board may collect and disburse restitutionand reparationpayments,orwhether itmust requiredirect payment from the release= to thevictim.

As noted in response to your first question, article 42.12, section 15(g) of the Code of Criminal Procedure authorizes the board to adopt such "reasonable rules not inconsistentwith law as it may deem proper or necessarywith respect to... conditions to be imposed upon parolees and persons released to mandatory supervision." In our opinion, the adoption of rules which provide for the collection and disbursementof restitutionand reparationmonies by the board itself would be a reasonable way of exercising its authority to,supervise repayment by a releasee to the victim of his crime. See also 812 (board may determine degree of supervision of releasee); 120 (board may make rules for conduct of releasee). A condition that the release= pay such payments directly to the victim of his crimewould have the unfortunateresult of forcing the releasee and the victim of his crime to have renewed contact with one another. Promulgating rules which would allow the board to establish a condition that the releasee make such payments to the board would not only facilitate

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5upervi5ion of the releasee's compliance, but would avoid such involuntarycontactbetween the releaseeand thevictim of his crime.

Article 42.12, section 15 (1)I passed in 1981 by the Sixty-seventhLegislature,now providesa thirdoption to theboard by authorizing it to contractwith the Texas Adult Probation Commission for the supervisionof a releaseesubjectto the approval of the judge
or judges that employ the probation officer. The conditions of probationmay require the release=tomakevarious payments. See Code Grim. Proc. art. 42.12, 56. The restitution and reparationpayments could be collected and disbursed in accordance with established procedures for the handling of paymentsmade by probationerspursuant to section 6 of article 42.12.

You next ask whether the board's authority to require that a releasee make restitution or reparation is limited to cases wherein the prisoner was sentenced for an offense committed after the effective date ,ofthe 1977 amendment, which added the language on restitutionand reparation to section 15(g)of article 42.12.
-,,\ .> - Prior to 1977, article 4~2.12did not expressly provide for the payment of restitutionor reparation. See Acts 1967; 60th Leg., ch. 659. 529, at 1745-46'.A 1977 amendmenttosection 15(g)provided that the conditions of parole established by the board "may 'includethe making of restitution or reparation to the victim of 'theprisoner's crime." Acts 1977, 65th Leg., ch. 347, §l,at 928. (Emphasisadded). The 1981 amendment to section 15(g)of article 42.12 provides that the parole conditions "shall include the making of restitution or reparation." Acts 1981, 67th Leg., ch. 141, 15. at 355. (Emphasis added).

The board's authority to recommend as a conditionof release that
a releasee make restitution or reparation to the victim of his crime is not limited to cases wherein the prisoner was sentenced for an offense committed after the effective date of the 1977 amendment to section 15(g)of article 42.12 of the Code of Criminal Procedure. The board's broad discretionary authority under article 42.12 to set conditions of release would have allowed the board to recommend such conditions even before the passage of the 1977 amendment. Even prior to 1977, section 2 of article 42.12 defined parole 55 "the release of
a prisoner from imprisonment but not from the legal custody of the State. ~for rehabilitation outside of prison wall5 under such conditionsand provisions for disciplinarysupervisionas the Board of Pardonsand Parolesmay determine." Acts 1965, 59th Leg., ch. 722, at 489. (Emphasis added). The 1977 amendment specified that these conditionsmay include the making of restitutionor reparation to the victim of the crime. Acts 1977, 65th Leg., ch; 388, at 1058. In passing this amendment the legislature merely clarified the board's

p. 1655.

, Mr. Ruben Torres - Page 7 0%472)

already-existing authority in this regard, and the provision is not retroactiveas applied to a defendant convictedprior to itspassage.

SUMMARY

The Texas Board of Pardons and Paroles may recommend as a condition of release that a releasee pay fines and/or court costs to the appropriate collectingofficer. It cannot itself collect suchmonies. The board does not have the authority to recommendthe releaseof an inmateon the condition that he repay fines. court costs, restitution or reparation at a rate which it has determinedwould be an unreasonableburden on the releasee. The board has the authority to recommend release on the condition that the releasee ww less than the total amount outstanding in fines, court costs, restitution or reparation during the period of his supervision. In the event of a parole revocation,the release= could present evidence of his inability to repay the full amount setby theboard as a conditionof release as a circumstance which would mitigate against revocation. The board can recommend as a condition of release that the releasee Pw restitution or reparation to the victim onlywhen the amount was established by the convicting court. The board is authorized to collect and disburse such restitutionor reparationpayments. The board's authority to impose as a conditionof release that a releasee make restitution or reparation to the victim of his crime is not limited to caseswhere the prisonerwas sentenced for an offense committedafter the effectivedate of the 1977 amendment to article 42.12, section 15(g)of the Code of CriminalProcedure.
Very trulyyours, 0

MARK WHITE Attorney General of Texas

JOHNW. FAINTER,JR. FirstAssistantAttorney General

RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral

p. 1656Mr. Ruben Tones - Page 8 (m-472)

Preparedby SusanL. Garrison& Maury Hexamer AssistantAttorneys General

APPROVED: OPINION COMMITTEE

Susan L. Garrison,Chairman Jon Bible Rick Gilpin Maury Hexamer PatriciaRinojosa Jim Moellinger

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