## 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 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. .
The Court misconstrues the meaning of the word “conside r” when it holds that the trial court in this case did not actua lly “conside r” appellant’ s ability to pay the cost of a SCR AM device

. I would hold, as J udg e Mey ers does, that the trial court did indeed consider appellant’ s ability to pay for the de vice–the c ourt consider ed it and then de cided that a ppellant should pay

for the de vice. The leg islature knows how to require that pay ments be based on ability to pay . I t knows the differ ence betwee n requiring an action, g iving a judge total discre t i on reg arding an action, and requiring consideration of an action. Article 42.12, § 13(d) contains examples of all three of theseMATHIS DISS ENT — 2

options. That statute provides: I f a judge require s as a conditio n of community supervision that the defe ndant participa te i n a prescribe d course of cond u ct n ec es s ary for the reha bilitation of t he defe ndant’s drug or alcohol depende nce condition, the judge shall requir e t h at the defe ndant pay for al l or part of the cost of such reha bilitation based on the defendant’s ability to pay . The judge may, in its discretion, credit such cost paid by the defe ndant ag ainst the fine assessed. I n making a deter mination of a defe ndant’s ability to pay the cost of reha bilitation under this subsection, the judge shall consider whether the def endant ha s insurance cover ag e that will pay for r ehabilitation. 1 This statute does not help appe llant beca use it applies only

to c onvictions unde r Chapter 49 of the Penal C ode (I ntox ication and Alcoholic Be v er age Offe nses). Appellant was convicted of sexual 2 assault of a

child. Article 42.12, § 11( b), which doe s apply to appellant, provide s: The court shall consider the abili ty of t he defenda nt to make pay

ments in order ing the def endant to make pay

ments under this article

. 3 I t does not say , as Article 42,12, § 13(d) does, that the t rial court’s decision i s to be “based on the defe ndant’s ability

to pay .” As one c ourt of appe als has said: The lang uag e of article 42.12, section 11(b) of the Texas Code of Criminal Procedur e is una mbiguous. I t r equire s the trial court to “conside r” the probationer ’s ability to make the pay

ments order ed by the court. The lang uag e does n o t mandate that the pay ments be within the financ ial means of the probationer s. 4 Also, when the trial court considere d defe nse counsel’s arg ument th at appellant could not

T E X
. C O D E C R

I M
. P R O C
. art. 42.12, §13(d) (italics adde d). 1 See id. , § 13(a)

. 2 Id. , § 11(b) ( emphasis adde d). 3 Pennington v. State , 902 S.W .2d 752, 754 (Tex. App.–For t Worth 1995) (footnote 4 omitted).MATHIS DISS ENT — 3

aff ord the SCR AM device , the court said “[W ]e don’t want him to be immediately in violation beca use he can’ t aff

ord to do th o se things.” There is no indication that the trial court intended to revoke appellant’ s probation for failure to pay for the SCR AM device

. And appellant was require d

as a condition of probation to “wor k fa i t h fully at suitable employ ment as far as possible.” I n order ing appellant to pay for the device , the trial court could take into acc ount the fac t that appellant might be a

ble to aff ord the de vice in the f

uture. The C o u rt quotes from Ex parte Gonzales , which is a case about rec oupment of attorney s fee s. The holding in that case , though, is that a court may not order a defe ndant confine d for failure 5
to repa y the costs of his leg al defe nse unless the court considers t h e d ef en d an t’s ability to pay . I ag ree . I also ag ree that t h i s holding should apply to a defe ndant’s ability to pay for a SCR AM d ev i ce . Bu t , first, the trial court has not order ed appellant confine d for failure to pay , and it m ay

never do so. And second, the trial court talked about appellant’ s ability to pay , thought over defe nse counsel’s arg uments, and t o l d co u n s el that appellant should work it out with the probation depar tment. That is, the court “ considere d” appe llant’s ability to pay

. I respe ctfully

dissent. Filed: Mar ch 12, 2014 Publis h

935 S.W .2d 834 (Tex. Crim. App. 1997).

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