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 

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San Antonio, TX. 75205-2797 

51212254191 

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 

Opinion No. m-472 

lk: Whether the Texas Board 

of Pardons and Paroles has 

authority to collect or 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 Pardons and Paroles to collect or assist in the collection of 

fines, court costs and restitution or reparation to the victim, from a 

person eligible for release from the Department of Corrections on 

parole or mandatory supervision. 

You first ask whether the board is authorized by section 15(g) of 

article 42.12 of the Code of Criminal Procedure to collect unpaid 

fines and court costs adjudged against the defendant by the convicting 

court. In particular, you refer to fines adjudged pursuant 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., relating to the Commission on Law Enforcement 

Officer Standards and Education, article 8309-l. section 14(b). 

V.T.C.S., the Crime Victims Compensation Act. 

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 

inconsistent with law as it may deem proper or necessary with respect 

to...~ conditions to be imposed upon parolees and persons released to 

mandatory supervision." (Emphasis added). 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. 1650 
Mr. 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 officers with 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 fines and court costs would be inconsistent with these Code of 

Criminal Procedure provisions and therefore would be invalid. See - 

generally Attorney General Opinion H-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~42.12 of the Code 

of Criminal Procedure defines parole as the release of 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 42.12 provides as follows: 

The Board may adopt such other reasonable rules 

not inconsistent with law as it may deem proper or 

necessary with respect to... conditions to be 

imposed upon parolees and persons released to 

mandatory' supervision.... The conditions shall 

include the making of restitution or reparation to 

the victim of the prisoner's crime, in an amount 

not greater than such restitution or reparation as 

established by the court and entered in the 

sentence of the court which sentenced the prisoner 

to his term of imprisonment. Acceptance, signing, 

and execution of the contract by the inmate to .be 

paroled shall be a precondition to release on 

parole. 

See also Code Grim. Proc. art. 42.12, 512 (board may determine degree 

of supervision a releasee should receive). The board has adopted a 

rule stating standard conditions of parole, such as reporting at 

p. 1651 
I+r. Ruben Torres - Page 3 (MW-472) 

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 conditions of parole the making of 

reparation or restitution to the victim 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 

customized conditions of parole. Clifford v. Beto, 464 F.2d 1191 (5th 

Cir. 1972). Typical conditions have included the requirement that a 

parolee secure his parole officer's permission before changing his 

place of residence or employment, leaving the county or purchasing or 

operating an 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 restitution or 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 

should be subject to conditions at least 55 stringent as those imposed 

on an individual serving a probated sentence. See Code Grim. Proc. 

art. 42.12. $13, 3a (probation available only whe~maximum punishment 

assessed does not exceed ten years). In our opinion, board rules 

'authorieing a condition that a releasee pay his fine and court costs 

would be "reasonable rules... with respect to... conditions" of 

probation or mandatory supervision. Sec. 15(g). Of course, the board 

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 

from parole or mandatory supervision, those obligations will remain in 

effect until discharged pursuant to articles 42.15, 42:16 or 43.01 of 

the Code of Criminal Procedure. 

You next ask whether, in cases where payment of outstanding 

fines, court costs, restitution or reparation would impose an 

unreasonable burden on a releasee, the board must order payment of an 

amount less than the total amount due. You are concerned that the 

individual's earning ability would not enable him to complete payment 

during the period of parole or mandatory supervision. 

The board is not authorized to recommend as a condition of 

release that a releasee make scheduled payments which the board has 

itself determined would be "an unreasonable burden" on the releasee. 

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

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

in pertinent part: 

A parole shall be ordered only for the best 

interest of society.... A prisoner shall be 

placed on parole only when arrangements have been 

made for his employment or for his maintenance and 

care, and when the Board believes that he, is able 

and willing to fulfill the obligations of a 

law-abiding citizen. 

If the board does not believe that the potential releasee is able to 

fulfill the conditions of release, parole under such conditions would 

not be authorized under this section. 

Section 15(g) of article 42.12 provides that the conditions of 

parole "shall include the making ~of restitution or reparation to the 

victim of the prisoner's crime, in an amount not greater than such 

restitution or reparation as established by the court and entered in 

the sentence." (Emphasis added). The boe&:is required to include 

the making of some restitution or reparation ~to the victims of the 

prisoner'5 crime. However, the legislature's use of .the words "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 condition of parole. 

If the board chooses to impose conditions relating to the payment 

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 obligations of course remain in effect until 

discharged as permitted by the Code of Criminal Procedure. 

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,that the release= had the ability to pay some or all of 

the amount ~which was not in fact paid is,not a "condition precedent" 

to revocation of 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. 1653 
hr. Ruben Torres - Page 5 (MU-472) 

parole. Part of these requirements are set forth in Ex part= Ates, 

supra, at 354: 

Revocation Hearing: 

If desired by parolee such hearing should 

decide any contested facts and determine whether 

they warrant revocation. Parolee should receive 

written notice of the claimed violations and must 

have an opportunity to be heard and show that 

either he did not violate the conditions of parole 

or that there were circumstances which mitigate 

against revocation. (Emphasis added). 

You next ask whether the board has authority to establish 55 a 

condition of release that a release= make restitution or reparation to 

the victim of the crime, where the judgment of the convicting court 

does not specify a dollar amount of such obligation. 

The board may-notestablish a condition of release requiring the 

releasee to make restitution or reparation to the victim of his crime 

where the monetary amount of such restitution or reparation cannot be 

determined from the sentence. Such action would 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 established by the convicting court and entered in 

the sentence. 

You next ask whether the board may collect and disburse 

restitution and reparation payments, or whether it must require direct 

payment from the release= to the victim. 

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 inconsistent with law as it may 

deem proper or necessary with 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 

disbursement of restitution and reparation monies 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 crime would 

have the unfortunate result 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 

p. 1654 
Yr. Ruben Torres - Page 6 (~~-472) 

5upervi5ion of the releasee's compliance, but would avoid such 

involuntary contact between the releasee and the victim of his crime. 

Article 42.12, section 15 (1) I passed in 1981 by the 

Sixty-seventh Legislature, now provides a third option to the board by 

authorizing it to contract with the Texas Adult Probation Commission 

for the supervision of a releasee subject to the approval of the judge 

or judges that employ the probation officer. The conditions of 

probation may require the release= to make various payments. See Code 

Grim. Proc. art. 42.12, 56. The restitution and reparation payments 

could be collected and disbursed in accordance with established 

procedures for the handling of payments made by probationers pursuant 

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 ,of the 1977 amendment, which added the language on 

restitution and reparation to section 15(g) of article 42.12. 

-, , \ .> - 

Prior to 1977, article 4~2.12 did not expressly provide for the 

payment of restitution or reparation. See Acts 1967; 60th Leg., ch. 

659. 529, at 1745-46'. A 1977 amendment tosection 15(g) provided that 

the conditions of parole established by the board "may 'include the 

making of restitution or reparation to the victim of 'the prisoner's 

crime." Acts 1977, 65th Leg., ch. 347, §l, at 928. (Emphasis added). 

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 condition of 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 

conditions and provisions for disciplinary supervision as the Board of 

Pardons and Paroles may determine." Acts 1965, 59th Leg., ch. 722, at 

489. (Emphasis added). The 1977 amendment specified that these 

conditions may 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 

retroactive as applied to a defendant convicted prior to its passage. 

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 collecting officer. It cannot itself 

collect such monies. The board does not have the 

authority to recommend the release of an inmate on 

the condition that he repay fines. court costs, 

restitution or reparation at a rate which it has 

determined would be an unreasonable burden 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 set by the board as a condition of 

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 only when 

the amount was established by the convicting 

court. The board is authorized to collect and 

disburse such restitution or reparation payments. 

The board's authority to impose as a condition of 

release that a releasee make restitution or 

reparation to the victim of his crime is not 

limited to cases where the prisoner was sentenced 

for an offense committed after the effective date 

of the 1977 amendment to article 42.12, section 

15(g) of the Code of Criminal Procedure. 

Very truly yours, 0 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

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

Prepared by Susan L. Garrison & 

Maury Hexamer 

Assistant Attorneys General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Maury Hexamer 

Patricia Rinojosa 

Jim Moellinger 

p. 1657