JIM MATTOX 

Attorney General 

Supreme Court BulldIng 

P. 0. BOX 1254a 

Austin. TX. 7571% 2548 

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714 Jackson. Suite 700 

Dallas. TX. 752024505 

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El Paso. TX. 799052793 

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1001 Texas. Suite 700 

Houston, TX. 770023111 

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Lubbock. TX. 79401-3479 

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McAllen, TX. 78501-1885 

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San Antonio. TX. 7S205-2797 

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A” Equal Opportunity/ 

AffIrmaWe Actlon Employer 

The Attorney General of Texas 

April 9, 1985 

Opinion No. JM-307 

Re: Whether a judge may require 

a probationer to make a onetime contribution to a crime 

stoppers program as a condition 

of probation 

Bonorable Richard W. Carter 

chairman 

Crime Stoppers Adviwry Council 

P. 0. Box 231 

Arlington, Texas i'6010 

Bonorable Grant Jonm 

District Attorney 

Nueces County Courthcase 8205 

Corpus Christi, Texzw 78401 

Gentlemen: 

You inquire about the power of a judge to require a probationer, 

as a condition of pmbation. to make 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 JL one-time contribution of money to a 

c&e stclppers program, whether the judge be 

presiding over a municipal, justice, county court, 

county court at law. or a state district court. 

., 

(1) l4z.y adistrict judge, under the Texas Code 

of Criminal Procedure. article 42.12, section 

6(a), reqMre a defendant as a condition of felony 

probation 1:o make 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.y a~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 

connection with defendant's case? 

A "crime stoppers ol,ganization" is 

p. 1393 
Ronorable Richard W. Carter 

Honorable Grant Jones 

Page 2 (JR-307) 

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::sation information 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 Stoppers Advisory 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 :iorward with information about criminal 

activity. It has received numerous inquiries from trial court judges 

about their authority to impose the probation 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 Procedurre governs 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-l et. 6%. -- Justice courts and municipal courts 

have jurisdiction of Class C misdemeanors. Tex. Const. art. V, $19; 

V.T.C.S. art. 1195. Article ,45.54 of 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 misdemeanor punishable 

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 :cesponsibillty for determining 

when the imposition of sentence in certain cases 

shall be suspended, the conditions of probation, 

and the supervision of probationers. . . . 

Code Crim. Proc. art. 42.12. Il. The judge may place a defendant on 

probation when "the ends of justi.ce and the best interests of the 

p. 1394 
Honorable Richard W. Carter 

Honorable Grant Jones 

Page 3 (JM-307) 

public as well as the defendant will be subserved. . . ." Id. 53. 

The defendant must 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 capital murder 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 

conditions that the probationor shall: 

a. Commit no ofEense against the laws of this 

State or of any cbther State or of the United 

States; 

b. Avoid injurious or vicious habits; 

C. Avoid person:3 or places of disreputable or 

harmful character; 

d. Report to the probation officer as directed 

by the judge or probation officer and obey all 

rules and regulations of the probation department; 

e. Permit the Pmxobation officer to visit him 

at his home or elsewhere; 

f. Work faithfully at suitable employment as 

far as possible; 

g. Remain within a specified place; 

h. Pay his fine, if one be assessed, and all 

court costs whether 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. Support his 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 coaaaunityservice work program designated by the court; 

k. Reimburse ,:he county in which the 

prosecution was inc;tituted for compensation paid 

to appointed counsel for defending him in the 

case, if counsel '188 appointed, or if he was 

p. 1395 
Ronorable Richard W. Carter 

Ronorable Grant Jones 

Page 4 (JR-307) 

represented by a county-paid public defender, in 

an amount that would have been paid to an 

appointed attorney had the county not had a public 

defender; 

1. Remain under custodial supervision in a 

community-based fe,cility. obey all rules and 

regulations of such facility, and pay a percentage 

of his income to the facility for room and board; 

m. Pay a perc,cntage of his income to his 

dependents for their support while under custodial 

suspension in a community-based facility; 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 or medical expenses 

sustained by the vktim as a direct result of the 

commission of 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 statutory conditions of 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 Opinion R-234 (1974). A 1981 

amendment to article 42.12 dc:Leted the 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 (title of House Bill No. 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.ection of the public. Tames v. State, 

m Hacias v. State, ~:a; see Code Grim. Proc. art. 42.12, 53 

(probation may be granted whe;; best Interests of public and defendant 

will be subserved). 

p. 1396 
Honorable Richard W. Carter 

Honorable Grant Jones 

Page 5 (.JM-307) 

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 donate money or money 

and uncompensated services to charity. See United States v. William 

Anderson Co., 698 F.2d 911 (Eth Cir. 1982)pholding requirement that 

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 

requirement that corporation contribute money 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 charitable orgrnization assisting disadvantaged): United 

States v. Danilow Pastry Cc-, 563 F. Supp. 1159 (S.D.N.Y. 1983) 

(upholding requirement that~ bakery corporation donate baked goods to 

organizations assisting the needy). But see United States v. Preston 

Corp., 695 F.2d 1236 (10th Cir. 1982) (federal courts may 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) 

(invalidating probation 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 ore other business associations. The court in 

United States v. Mitsubishi 'International Corp., w, stated that 

corporate defendants present-a special problem because they cannot be 

incarcerated; thus the trial i,udge designed unique terms of-probation. 

We believe the trial court, in exercising its wide discretion to 

establish probation conditit~n,s, may require a probationer to donate 

money to a particular private charity where that condition has a 

reasonable relationship to his treatment and rehabilitation and to the 

protection of the public. 'Zrether it 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 revocation for violating %rtain probation conditions). 

Article 42.12 does not. authorize a judge to create a funding 

source for a private charity by 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 

reasonably related to the ir~~.ividual probationer's rehabilitation and 

to protecting the public. 

p. 1397 
Honorable Richard W. Carter 

Honorable Grant Jones 

Page 6 (~~-307) 

In addition, other prul:lsions of 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 shculd not lend the prestige 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) (probation condition 

requiring probationer to attend course advocating adoption of religion 

violates First Amendment c#f United States Constitutitin); Attorney 

General Opinion JM-1 (1983:. See also Pnlliam V. Allen; U.S. 

-, 104 S.Ct. 1970 (1984) (judge may be required to pay attorneys' 

fees in section 1983 suit). 

Article 42.13 of the C:ode of 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 ':erms and conditions of probation and may 

impose reasonable condition3 In addition to the statutory conditions 

set out in section 6. Id. 06(a); Fogle V. 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 conditions of misdemeanor probation may 

require a probationer to dor,ate money to a private charity, if that is 

a reasonable condition for the individual probationer. 

Article 45.54 of the Code of Criminal Procedure governs the 

suspension of the fine and deferral of final disposition in 

misdemeanors punishable by 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 described by Section 143A. Uniform Act 

Regulating Traffi'c on Highways, as amended 

(Article 6701d. lrernon's Texas Civil Statutes), 

the justice may sc,spend the imposltlon of the fine 

and defer final disposition of the case for a 

period not to excc,ed 180 days. 

(2) During sa:Ld deferral period. the justice 

may require the dt,fendant to: 

(a) post a bond in the amount of the fine 

assessed to secure-payment of the fine; 

p. 1398 
Honorable Richard W. Carter 

Honorable Grant Jones 

Page 7 (JM-307) 

(b) pay restj,tution to the victim of the 

offense in an alE,unt not to exceed the fine 

assessed; 

(4 submit to professional 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 .presents satisfactory evidence 

that he has complied with the requirements 

imposed, the justice may dismiss the complaint. 

Otherwise, the ,justice may reduce the fine 

assessed or may tten impose the fine assessed. If 

the complaint is akkmissed, a special expense not 

to exceed $50 may 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 is Now the Question, 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 than payment of any part of the fine. This language 

certainly empowers him to impose non-statutory conditions on the 

defendant during the deferral period, but it ddes not. in our opinion. 

authorize him to require defendant to contribute money to a charity. 

Subsections (2)(a) and (2)(51) expressly permit conditions requiring 

payments by the defendant, but limit the amounts by 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 require payments by the defendant, 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 

p. 1399 
. 

Honorable Richard W. Carter 

Honorable Grant Jones 

Page 8 (JM-307) 

terms of a sentence suspen,led under article 45.54, he would have to 

pay the fine. There would be l.ittle incentive to comply with 

conditions that required pn)ments in excess of the fine. See Baker 

and Bubany, supra. at 257. 'In our 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 stoppers program 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:required to pay restitution to insurance 

company to reimburse it for medical expenses of complaining witness); 

People v. Martin, 442 N.E.2,1 562 (Ill. App. 1982) (restitution of $35 

to repay state for money used, to buy 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 the protection 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 

judge may require as a condition of probation that 

a probationer repay * private crime stoppers 

program for amoun':s spent on his case where this 

Is a reasonable condition of probation. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First AssIstant Attorney General 

p. 1400 
. 

Eonorable Richard W. Carter 

Honorable Grant Jones 

Page 9 (JM-307) 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

RICR GILPIN 

Chairman, Opinion Ccm&ttee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Jim Woellinger 

Jennifer Riggs 

Nancy Sutton 

p. 1401