JIM MATTOX Attorney General

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# The Attorney General of Texas

April 9, 1985

OpinionNo. JM-307
Re:Whether a judgemay require a probationer to make a onetime contribution to a crime stoppersprogram as a condition of probation Bonorable RichardW. Carter chairman Crime StoppersAdviwry Council P. 0. Box 231 Arlington,Texas i'6010 Bonorable Grant Jonm DistrictAttorney Nueces County Courthcase 8205 Corpus Christi,Texzw 78401 Gentlemen:
You inquireabout the power of a judge to require a probationer, as a conditionof pmbation. tomake a contribution to a private crime stoppers organizatim. Judge Carter asks

Mr. Jones asks the following two questions:

whether 0::not a judge can require a probationer to make JLone-time contribution of money to a c&e stclppersprogram, whether the judge be presiding over amunicipal, justice, county court, county courtat law. or a statedistrict court.

., (1) l4z.y

a district judge, under the Texas Code of Criminal Procedure. article 42.12, section 6(a), reqMre a defendant as a conditionof felony probation 1:omake a contribution to an organization of the kind described as a 'crime stoppers organization'in article 2372bb, **sections** 1 and 2. V.T.C.S.? (2) Mz.ya~district judge, under Texas Code of Criminal :?:rocedure, article 42.12. section 6(a). require B defendant as a condition of felony probation to reimburse a crime stoppers organlzation for funds expended by the organization in connectionwith defendant's case?
A "crime stoppersol,ganization"is

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a private,nonprofit organization that is operated on a local or a statewide level, that accepts and expends donations for rewards to persons who report to the organ::sationinformation concerning criminal activity, and that forwards the information to the appropriate law enforcement agency. V.T.C.S. art. 2372bb. Pl. The duties of the Crime StoppersAdvisory Council are stated in article 4413(50), section 5, V.T.C.S. Among other duties, it is to assist in the creation of local crime stoppers programs and to encourage persons to come :iorwardwith information about criminal activity. It has receivednumerous inquiries from trial court judges about theirauthority to impose theprobation condition in question.
We will deal with the Council's question and the district attorney's first question together. Article IV, section 11A of the Texas Constitution authorizes the courts with original jurisdi:tion of criminal actions to suspend the sentence after conviction and.to place the defendant on probation, under such conditions as the.court may prescribe. Article 42.12 of the Code of Criminal Procedurregoverns probation in felony cases, of which the district courts have original jurisdiction. Tex. Const. art. V, 18. Article 42.13 of the Code of Criminal Procedure governs probation in misdemeanor case:s. The county courts have jurisdiction of misdemeanors, Tex. Const. art. V, 558. 16, as have those of the statutory county courts which have been given criminal jurisdiction. =V.T.C.S. art. 1970-let. 6%. -- Justice courts andmunicipal courts have jurisdiction of Class C misdemeanors. Tex. Const. art. V, $19; V.T.C.S. art. 1195. Article ,45.54of the Code of Criminal Procedure authorizes a justice of the peace and a municipal court judge to suspend a fine and defer final disposition in a misdemeanorpunishable by fine only. The purpose clause of article 42.12 of the Code of Criminal Procedure states as follows:

It is the purpose of this Article to place wholly within the Stats courts of appropriate jurisdiction the :cesponsibilltyfor determining when the imposition of sentence in certain cases shall be suspended, the conditions of probation, and the supervisionof probationers.
. . . Code Crim. Proc. art. 42.12. Il. The judge may place a defendant on probation when "the ends of justi.ceand the best interests of the

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public as well as the defendant will be subserved.
. . ." Id. 53. The defendantmust have been convicted or have entered a guiltyplea, and the maximum punishment far the offense way not exceed ten years. Id. 53; see also & 83f (probation not available to defendant adjudged guilty of capitalmurder or other offenses set out in art. 42.12, 53f). The court is to determine the terms and conditions of probation, which "may include, but shall not be limited to. the conditionsthat theprobationor shall:

a. Commit no ofEense against the laws of this State or of any cbtherState or of the United States; b. Avoid injurious orvicious habits;
C. Avoid person:3or places of disreputable or harmful character; d. Report to theprobation officer as directed by the judge or probation officer and obey all rules and regulationsof theprobationdepartment;

e. Permit the Pmxobationofficer to visit him athis home or elsewhere; f. Work faithfully at suitable employment as far as possible;
g. Remainwithin a specifiedplace; h. Pay his fine, if one be assessed, and all court costswhether a fine be assessed or not, in one .or several sums, and wake restitution or reparation in any sum that the court shall determine;
I. Supporthis dependents; j. Participate, for a time specified by the court and subject to the same conditions imposed **011** community-service probationers by Sections lOA( cd). (g).and (h) of this article, in any community-based program, including a coaaaunityservicework program designatedby the court; k. Reimburse ,:he county in which the prosecution was inc;titutedfor compensation paid to appointed counsel for defending him in the case, if counsel '188 appointed, or if he was

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represented by a county-paid public defender, in an amount that would have been paid to an appointed attorneyhad the countynot had a public defender;
1. Remain under custodial supervision in a community-based fe,cility. obey all rules and regulations of such facility,andpay a percentage ofhis income to the facility for room and board;

m. Pay a perc,cntageof his income to his dependents for their supportwhile under custodial suspension in a community-basedfacility;and

n. Pay a percentage of his income to the victim of the offea:se,if any, to compensate the victim for any property damage ormedical expenses sustainedby the vktim as a direct result of the commissionof the offense. Code Grim. Proc. art. 42.12, )6(a). When the jury assesses punishment following a conviction, the jury may recommend probation, and the court shall grant probation "[IIn all eligible cases." Code Grim. Proc. art. 42.12, 53a. Under former law, when probation was granted by the jury, the court could impose only those statutoryconditionsof probation found in section 6 of article 42.12, Code of C:r::minal Procedure. Tamez v. State, 534 S.W.Zd 686, (Tex. Crlm. App. 1976); O'Neal v. State, 421 S.W.2d 391 (Tex.Grim.App. 1967);Attorney General OpinionR-234 (1974). A 1981 amendment to article 42.12 dc:Letedthe limiting language from section 3a. thereby authorizing the court to impose special probation conditions where the jury grsnted probation. Acts 1981, 67th Leg., chi 639 at 2466 (titleof House BillNo. 2107).
It is well-established that a trial court in setting probation conditions is not limited to the conditions found in section 6 of article 42.12 of the Code II!! Criminal Procedure. Tames v. State, supra; Peach v. State, 498 S.W.2d 192 (Tex. Grim. App. 1973);Macias v. State, 649 S.W.2d 150 (kc. App. - El Paso 1983, no pet.). The judge now has the same au:hority to set probation conditions in jury-granted probation as he has long had in judge-granted probation. Although the court has wide discretion in establishing the terms of probation, they must have a reasonable relationship to the treatment of the accused and the prot.ectionof the public. Tames v. State, m Hacias v. State, ~:a; see Code Grim. Proc. art. 42.12, 53 (probationmay be grantedwhe;; best Interests of public and defendant will be subserved).

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We have found no Texa!;cases on a probation condition which requires the probationer to donate money to a private charity. The federal courts have upheld under the federal probation statute. 18 U.S.C. 03651. the condition that the probationer donatemoney ormoney and uncompensated services to charity. See United States v. William AndersonCo., 698 F.2d 911 (EthCir. 1982)pholding requirementthat corporation make payment to charity for which its officers were performing cormsunity servkes) ; United States v. Mutsubishi International Corp.. 677 F.2d 785 (9th Cir. 1982) (upholding requirementthat corporation contributemoney and services to program for ex-offenders); United states v. Wright Contracting Co., 563 F.Supp. 213 (D. Hd. 1983) (upholding requirement that corporation contribute to charitableorgrnizationassistingdisadvantaged):United States v. Danilow Pastry Cc-, 563 F. Supp. 1159 (S.D.N.Y. 1983) (upholdingrequirement that~bakery corporation donate baked goods to organizationsassisting the needy). But seeUnited Statesv. Preston Corp., 695 F.2d 1236 (10th Cir. 1982) (federal courtsmay not direct uavment of funds as condition of nrobation beyond express authorizations in 18 U.S.C. 13651); United States v. Clovis Retail Liquor Dealers Trade Ass'R,. 540 F.2d 1389 (10th Cir. 1976) (invalidatingprobation condL:ion requiring probationer to contribute money to county council'on alcoholism). See generally,Annot. A.L.R. 66, Fed. 825 (1984);N. Cohlrn& J. Gobert, The Law of Probation and Parole (1983). 506.28, 6.36. The probationers in the cited federal cases are corporations oreother business associations. The court in United States v. Mitsubishi 'InternationalCorp., w, stated that corporatedefendantspresent-a specialproblem because they cannotbe incarcerated;thus the trial i,udge designedunique terms of-probation.
We believe the trial court, in exercising itswide discretion to establish probation conditit~n,s, may require a probationer to donate money to a particular private charity where that condition has a reasonablerelationshiptohis treatmentand rehabilitationand to the protection of the public. 'Zretherit would be reasonable to impose such a condition on a particular probationer would require an evaluation of the facts surrounding his illegal activity and his probation. See also Code Grim. Proc. 42.12, 58(c); Attorney General Opfnions JM-lo); H-234 (1974) (financial inability as a defense to revocationforviolating %rtain probation conditions). Article 42.12 does not. authorize a judge to create a funding source for a private charityby requiring every probationer to donate a fixed sum to it. Cf. Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946) --- (statutes are strictly c:cnstrued against allowing a fee by implication). We emphasize that a condition of probation must be reasonablyrelated to the ir~~.ividual probationer's rehabilitationand toprotecting thepublic.

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In addition, other prul:lsionsof law control a judge's exercise of discretion. See. e.g.. Penal Code ch. 39 (abuse of office). The Code of Judicial Conduct expressly provides that a judge should not allow his "social, or othe::relationships to influence his judicial conduct or judgment. He shculdnot lend theprestige of his office to advance the private interests of others.
. . .l( Code of Judicial Conduct Canon 2B. Nor nay probation conditions violate the probationer's rights under the federal and state constitutions. See Ovens V. Kelley, 681 F.Zd 1362 (11th Cir. 1982) (probationcondition requiringprobationer to attend course advocatingadoption of religion violates First Amendment c#fUnited States Constitutitin);Attorney General Opinion JM-1 (1983:. See also Pnlliam V. Allen; U.S. -, 104 S.Ct. 1970 (1984) (judgemay be required to pay attorneys' fees in section 1983 suit). Article 42.13 of the C:odeof Criminal Procedure'governs 'misdemeanor probation. Its stated purposes are virtually identical to those of article 42.12. See Code Grim. Proc..42.13, §§I, 3. The --- court is to determine the ':ermsand conditions of probation and may impose reasonable condition3 In addition to the statutory conditions set out in section 6. Id. 06(a);FogleV. State, 667 S.W.2a 296 (Tex. APP. - Dallas 1984, no=.'); Attorney General Opinions H-234 (1974); M-985 (1971). The provisiors of article 42.13 on probation conditions are very similar to those of article 42.12. The courts and prior opinions of this office have construed these provision+ consistently with the provisions on the conditions of felony probation. Fogel v. State, supra; Attorney Gewral Opinion M-985 (1971). We believe a trial judge in determining the conditionsofmisdemeanorprobationmay requirea probationer to dor,ate money to a private charity, if that is a reasonablecondition for the individualprobationer. Article 45.54 of the Code of Criminal Procedure governs the suspension of the fine and deferral of final disposition in misdemeanorspunishableby fine only. The provision reads as follows:

(1) Upon convlction of the defendant of a misdemeanor punishe.ble by fine only. other than a misdemeanor describedby Section 143A.UniformAct Regulating Traffi'c on Highways, as amended (Article 6701d. lrernon'sTexas Civil Statutes), the justicemay sc,spend the imposltlon of the fine and defer final disposition of the case for a periodnot to excc,ed180days. (2) During sa:Lddeferral period. the justice may require the dt,fendantto: (a) post a bond in the amount of the fine assessed to secure-paymentof the fine;

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(b) pay restj,tution to the victim of the offense in an alE,untnot to exceed the fine assessed; (4 submit toprofessional counseling:and 63) comply with **y other reasonable condition, other than payment of all or part of the fine assessed. (3) At the conclusion of the deferral period, if the defendant .presentssatisfactory evidence that he has complied with the requirements imposed, the justice may dismiss the complaint. Otherwise, the ,justice may reduce the fine assessed ormay tten impose the fine assessed. If the complaint is akkmissed, a special expense not to exceed $50may be imposed. (4) Records.relating to a complaint dismissed as provided by this article may not be expunged under Article 55.01 of this code. (Emphasis added). This statute was enacted in 1981. Acts 1981, 67th Leg. ch. 318 at 894. It applies to municipal judges as well as to justices of the peace. See Bill Analysis far Senate Bill No. 914, 67th Leg. (1981); see ganeay Code Grim. Prcc. ch. 45. Article 45.54, in contknst to the felony and misdemeanor probation statutes, includes no purpose clause or other provision stating the goals of Its procedures for suspending sentences. It does not even use the term "urobati,m." although it has been described as a probation statute. -See B&r and BGbany. Probation for Class C Misdemeanors: To Fineor NC; to Fine isNow theQuestion, 22 So. Tex. L.J. 249 (1981). Subsection (2)(d) of article 45.54 authorizes the justice to require the defendant to "comply with any other reasonable condition,"other thanpayment **of** anypart of the fine. This language certainly empowers him to impose non-statutory conditions on the defendantduring the deferralperiod,but it ddes not. in our opinion. authorizehim to require defendant to contributemoney to a charity. Subsections (2)(a) and (2)(51)expressly permit conditions requiring paymentsby the defendant,but limit the amountsby the fine assessed. Subsection (2)(d) expressly forbids a condition requiring payment of part or all of the fine. Where the legislature has authorized the justice to requirepaymentsby thedefendant, it **has** carefully limited the amounts. If the 1egis:lature had intended "any other reasonable condition" to include a charitable contribution,we believe it would have imposed the same monetary limit. When a defendant violates the

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terms of a sentence suspen,led under article 45.54, he would have to pay the fine. There would be l.ittleincentive to comply with conditions that required pn)ments in excess of the fine. See Baker and Bubany, supra. at 257. 'Inour opinion, article 45.54 ofthe Code of Criminal Procedure does n3t authorize a municipal judge or justice of the peace to require the defendant to make a contribution to s crime stoppersprogram or any other private charity.
We turn to Mr. Jonets"second question. He asks whether a district judge may require 8s a condition of felony probation that a defendant reimburse a crime stoppers organization for funds it spent in connection with his case. We believe our discussion of article 42.12 of the Code of Crimin+l Procedure supports the conclusion that the judge may require such reimbursement,where that is a reasonable condition of probation. See Flares v. State, 513 S.W.2d 66 (Tex. Crim.App. 1974) (probatioz!r:requiredtopay restitution to insurance company to reimburse it formedical expenses of complainingwitness); People v. Martin, 442 N.E.2,1562 (Ill.App. 1982) (restitutionof $35 to repay state formoney used,tobuy drugs from offender).
SUMMARY Articles 43.1:: and 42.13 of the Code of Criminal Procedure!authorize a judge to require a probationer, as s condition of probation, to donate money to a private charity, where such condition has a reasonable relationship to the treatment of the a,ccused and theprotection of the public. Article 45.54 of the Code of Criminal Procedure does 'rot authorize a judge of a municipal court or a justice of the peace to impose such a prcbation condition. Acting under article 42.12 of the Code of Criminal Procedure, a judgemay require as a conditionof probation that a probationer repay * private crime stoppers program for amoun':sspent on his case where this Is a reasonable conditionof probation.

JIM MATTOX Attorney General of Texas TOM GREEN FirstAssIstant AttorneyGeneral

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DAVID R. RICHARDS ExecutiveAssistantAttorney General
RICR GILPIN Chairman,Opinion Ccm&ttee Preparedby SusanL. Garrison AssistantAttorney General
APPROVED: OPINIONCOMMITTEE Rick Gilpin,Chairman ColinCarl SusanGarrison JimWoellinger JenniferRiggs Nancy Sutton

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